EEOC posts new COVID-19 guidance:  The U.S. Equal Employment Opportunity Commission (EEOC) today posted updated and expanded technical assistance related to the COVID-19 pandemic, addressing questions about religious objections to employer COVID-19 vaccine requirements and how they interact with federal equal employment opportunity (EEO) laws. The expanded technical assistance provides new information about how Title VII of the Civil Rights Act of 1964 applies when an applicant or employee requests an exception from an employer’s COVID-19 vaccination requirement that conflicts with their sincerely held religious beliefs, practices, or observances.  The key updates to the technical assistance are summarized:

• Employees and applicants must inform their employers if they seek an exception to an employer’s COVID-19 vaccine requirement due to a sincerely held religious belief, practice, or observance.

• Title VII requires employers to consider requests for religious accommodations but does not protect social, political, or economic views, or personal preferences of employees who seek exceptions to a COVID-19 vaccination requirement.

• Employers that demonstrate “undue hardship” are not required to accommodate an employee’s request for a religious accommodation.

Source:  EEOC 10/25/21

Even with the OSHA ETS, some states may not enforce it:  Many states have Occupational Safety and Health Administration (OSHA)-approved workplace safety and health programs (OSHA State Plans) and enjoy enforcement autonomy over workplace safety and health in those states, particularly with respect to the COVID-19 pandemic. OSHA State Plans that have not adopted OSHA’s Emergency Temporary Standard (ETS) related to COVID-19 may soon be feeling the wrath of the federal government and risking revocation of their OSHA State Plan status. In written notice to the Industrial Commission of Arizona on October 19, 2021, OSHA said it is “reconsidering” its approval of Arizona’s OSHA State Plan. OSHA’s warning was prompted by Arizona’s failure to fully adopt the Healthcare ETS OSHA issued for healthcare employers or an “at least as effective as” alternative. OSHA also has announced plans to revoke approval of the State Plans in Arizona, South Carolina, and Utah for their failure to adopt the Healthcare ETS, which could mean that they lose federal funding for safety and health and that OSHA would then take over those OSHA State Plans. What this means is unknown, as OSHA does not have the manpower to enforce these plans.  The states are planning to fight this decision.  Source:  Jackson Lewis 10/20/21

International travel opens up November 8:  As of November 8, travelers will be able to enter the United States by showing proof of full vaccination and a negative COVID-19 test taken no more than three days prior to departure prior to boarding their overseas flights. Enhanced contact tracing and masking will also be required, but there will be no quarantine requirement. This is great news for employers seeking to invite business visitors to the United States from currently banned countries (the U.K. and Ireland, the 26 Schengen Area countries, Brazil, China, India, Iran, and South Africa) and to welcome employees with approved working visas from those countries. It has been reported that the U.S. will accept vaccines that have been approved by the FDA and those that have been approved by the WHO for emergency use including Moderna, Pfizer, Johnson & Johnson, Oxford/Astrazenica AZD1222 Covishield, BBIBP-CorV, and the Sinovac CoronaVac vaccines.  The main issue still to be resolved is what documentation for proof of vaccination will be accepted as well as the backlog for visas.  Source:  Fisher Phillips 10/18/21

COBRA beneficiaries have one year total to make first payment:  In Notice 2021-58, the IRS (with the blessing of DOL and HHS) clarified that the one-year Tolling Relief periods for COBRA elections and initial premium payments run concurrently not consecutively. That means that a qualified beneficiary generally will have only one year of total disregarded time for the election and initial payment periods (subject to the ambiguities noted below). However, under the transition rule, a plan may not require a qualified beneficiary to make an initial COBRA premium payment before November 1, 2021, as long as the payment is made within one year and 45 days of the individual's COBRA election. This is the IRS's way of protecting individuals who may have thought they had a longer period in which to make their first COBRA payment (i.e., a new one-year tolling period applicable to their initial payment after delaying their COBRA election via the Tolling Relief).  There are various ambiguities with this Notice, but it is to be read as most favorable to the ex-employee.  It is recommended that if any COBRA question arise, given the technical nature of it, to contact legal counsel.  Source:  CCH 10/18/21

Employees appear happy with benefits but want more mental health benefits:  EBRI, along with research firm Greenwald Research, surveyed 2,016 individuals between ages 21 and 64 from July 7, 2021 through July 27, 2021.  Nine in ten employees received health insurance through an employer-sponsored health plan, whether it was from their current employer (80%), former employer, or a parent or spouse’s employer.  More than half (63%) reported that they were very or extremely satisfied with their health plan, and 28% said they were somewhat satisfied. Just over 60% agreed that they are content with their health benefits and would not want to trade benefits for high wages or vice versa.  Health insurance was the most common benefit that employers offered as well as the most chosen benefit by employees. Dental and vision coverage also ranked high for most offered and chosen benefits.  Nearly half of employees reported that mental health wellness programs are more important than they were before the pandemic, but only 32% said their employer health plan offers mental health resources.  Even fewer employees reported that their employer offered mental health benefits such as free counseling or access to a healthcare navigator (31% and 27% respectively). For the employees who did have the option for these benefits, more than 60% were interested in them.  Source: Health Payer Intelligence 10/11/21

Facebook hit with fine for discriminating against U.S. workers:  Facebook agreed to pay up to $14 million to resolve a U.S. Justice Department suit alleging that the company discriminated against U.S. workers in its use of a federal program to set aside positions for immigrant employees. The DOJ’s civil rights division alleged in a lawsuit filed last December that Facebook routinely refused to recruit and consider U.S. workers for positions it reserved for temporary visa holders. Facebook used a Department of Labor program that allows companies to permanently hire foreign workers, but requires employers to ensure that there aren’t qualified, available U.S. workers to fill those positions. The lawsuit alleged that Facebook didn’t advertise jobs it had reserved under the program and, when U.S. workers applied, their applications weren’t considered. Facebook admitted no wrongdoing in the settlement agreement, which was announced Tuesday, noting that it “vigorously disputes and denies” the government’s allegations. The social media giant agreed to pay $4.75 million to the U.S. government and to set aside up to $9.5 million for U.S. workers that may have been victims of discrimination.  Source: law.com 10/19/21

Daylight Savings Time ends November 7: When clocks are turned back an hour in the early morning on November 7th, workers on the midnight shift at that time will actually work an extra hour. Assuming that these workers are nonexempt employees, meaning that they are governed by the Fair Labor Standards Act (FLSA), they must be paid for all hours worked. The end of daylight savings time can have overtime pay implications as well. Generally, nonexempt employees are entitled to overtime pay for all hours in excess of 40 worked during the week. Employees who work an extra hour during the conversion to standard time may go over the 40-hour mark for the workweek and are thus entitled to the higher overtime pay rate for that time. For a copy of the ASE end of daylight savings time poster, click here.