February 2022 TogetHR Times

COVID Corner

Vaccination mandate lifted, best mask to wear and COVID tests – all the most relevant and up to date information you need.

Vaccination Mandate – The U.S. Department of Labor’s Occupational Safety and Health Administration is withdrawing the vaccination and testing emergency temporary standard issued on Nov. 5, 2021, to protect unvaccinated employees of large employers with 100 or more employees from workplace exposure to coronavirus. The withdrawal was effective January 26, 2022.

Face Masks- As health officials scramble to minimize spread of the highly contagious Omicron variant, many experts have recommended that people switch from cloth or surgical masks to more-protective N95 and KN95 masks.

The U.S. Centers for Disease Control and Prevention’s (CDC) current mask guidance does not explicitly recommend one type of mask over another, instead specifying that people should choose the most protective and well-fitting mask they can wear consistently. But on Jan. 14, the agency released more detailed information about the differences between masks and confirmed that some—like N95 respirators—are more protective than others, like cloth and surgical masks.

A recent study published in the journal Proceedings of the National Academy of Sciences estimated that the risk of COVID-19 transmission can be reduced up to 75-fold when a sick person and someone nearby both wear N95-style masks as opposed to surgical masks.

The White House announced that the N95 masks will come from the federal government’s Strategic National Stockpile. This stockpile has more than 750 million masks. The government will make the masks available for pickup at pharmacies and community health centers that have partnered with the federal government’s COVID-19 vaccination campaign throughout the country.

COVID Test Kits- Households can place an order for four at-home COVID-19 tests per residential address on COVIDTests.gov. You do not have a choice in how many you get to order; the four tests are all allocated per household.

Need help navigating the various COVID requirements? Your HR representative can assist.

Surveillance of Employees

Employers can legally monitor almost anything an employee does at work as long as the reason for monitoring is important enough to the business. Employers may install video cameras, read postal mail and e-mail, monitor phone and computer usage, use GPS tracking, and more. The reason for a particular type of workplace surveillance must be more important than an employee’s expectation of privacy to be legally permissible.

The line between an employer’s right to monitor the conduct of its employees and an employee’s expectation of privacy in the workplace has always been a balancing act.  In today’s digital age, the tension between these two competing priorities becomes more challenging.  Computers, and their concomitant access to social media, are essential to the operation of almost every conceivable business entity.

In general, employees have no legal expectation of privacy in their workplace activities, particularly in their use of company computers.  Employers are entitled to utilize reasonable methods such as video surveillance or computer monitoring programs to monitor employee activity on company time.  The right to monitor employee activities is not, however, unlimited.  For example, while employees do not generally have a right to privacy in office common areas, they do have such a right where such privacy would normally be expected, such as in a bathroom or locker room.  The placement of cameras or other surveillance equipment in those areas would likely be an actionable intrusion into employee privacy.

Privacy experts and researchers predict that in the coming years, employee monitoring could take on a more personalized and possibly more invasive dimension as organizations continue to allow employees to work remotely. For companies practicing some level of worker data collection, questions of consent and transparency will be crucial in maintaining employees’ trust.

Georgetown’s Center on Privacy and Technology released a draft of The Worker Privacy Act in 2020, a proposed federal law that would establish clear prohibitions on the use of data, require employees to explain what data they collect and why, in addition to establishing a “new division in the Department of Labor will enforce the protections of the Act.” So far, however, there does not appear to be any momentum for legislation at the federal level to create new protections, and the eyes watching remote workers from afar have largely unrestricted views.

Do you monitor your employees?  Your HR representative can assist with assessing monitoring systems and policies.

Cannabis in the Workplace

Recreational marijuana became legal in Montana on January 1, 2022. The new law does not allow employees to be impaired at work or possess or consume cannabis in the workplace or while on the job.

In addition to the issues employers face controlling their workplaces, employers must be aware of how new cannabis laws interact with other state and federal laws.

  • Reasonable Accommodations: In some circumstances and in some jurisdictions, an employer must grant an employee’s request for a reasonable accommodation if the employee has a disability under state law. Montana permits employers to terminate employees for using marijuana regardless of their disabilities. State statutes and case law are subject to change, so employers should consult with HR professionals when confronted with any request for an accommodation to use cannabis.
  • Federal Drug-Free Workplace Laws: The Drug-Free Workplace Act (DFWA) requires certain federal contractors and federal grant recipients to maintain drug-free workplaces. This requires a workplace where employees are prohibited from manufacturing, distributing, possessing or using controlled substances. Federal contractors and grantees may be required to comply with state law and this federal law simultaneously.
  • Commercial Drivers: Employers governed by the U.S. Department of Transportation, including companies that employ individuals who drive under a commercial driver’s license, must take into account the DOT’s robust regulations regarding drug testing and possession. The DOT has made clear on multiple occasions that states’ legalization of marijuana has not modified the DOT’s drug-related regulations.
  • Collective Bargaining Agreements: Employers subject to a collective bargaining agreement should remember that changing drug testing or drug use policies may be prohibited without negotiating with the bargaining unit.

Questions about a drug free workplace?  See your HR Rep for assistance in putting together a policy or updating your handbook.

The Great Resignation 

Amid growing quit rates and the burnout and rethinking of work life balance that followed COVID, record numbers of employees have left the workforce. The number of Americans quitting has now exceeded pre-pandemic highs for six straight months, as employers are struggling to fill open positions. One major driver appears to be that many workers are no longer willing to put up with the pay and/or working conditions they (perhaps grudgingly) accepted prior to the pandemic. The fact that the quit rate is particularly high in sectors with a large number of frontline workers, e.g. hospitality, health care and retail, suggests that safety concerns also play a role in the worker exodus, especially in face of COVID.

Wage and Hour Regulations

Minimum Wage- Scripps National reports that 21 states and 35 cities and counties across the country started the new year by raising their minimum wage. In addition, four other states plan to join them later in the year, along with 20 more locations.

While 2022 is set to be a record-breaking year for boosting the minimum wage in Montana, it’s a different story at the federal level, where the minimum wage is still $7.25 an hour — the same since 2009. That represents the minimum wage in 21 states across the country.

On January 1, 2022, Montana’s minimum wage increased from $8.75 per hour to $9.20 per hour– an increase of 45 cents per hour. Montana law requires that the minimum wage be adjusted annually based on changes in inflation as measured by the Consumer Price Index all Urban Consumers (CPI-U) from August of the year in which the calculation is made, and is rounded to the nearest $0.05. The Montana Department of Labor & Industry says that the $0.45 increase in the minimum wage is higher than the increases in the last several years due to higher inflation and higher COLA.

 Tip Credit-  The rule clarifies that an employer may only take a tip credit for the hours when an employee is doing work that is tip-producing or engaged in tasks that directly support tip producing work.

Under the final rule, an employer can take a tip credit only when the tipped employee is performing tip-producing work or when the tipped employee is performing work that directly supports tip-producing work as long as the tipped worker does not spend a substantial amount of time doing tip-supporting work. The rule defines substantial amount of time as more than 20 percent of the hours worked during the employee’s workweek or a continuous period of time that exceeds 30 minutes. The final rule became effective Dec. 28, 2021. 

Fluctuating Workweek Proposed Rule- For almost 80 years, it has been the law that an overtime-eligible employee whose hours fluctuate from week to week and who agrees to receive a fixed weekly salary covering all hours of work is entitled to a halftime premium for hours worked in excess of 40 per week—not a “time and a half” premium. The rationale is that the employee, by virtue of the fixed salary covering all hours of work, has already been paid the “straight-time” component of pay for the hours over 40. Accordingly, all that remains for the employer to pay is the “half” in the colloquial “time and a half.” This is known as the fluctuating workweek (“FWW”) method of calculating overtime pay. The amended rule would take effect 60 days after publication in the Federal Register.

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