Quarterly HR Update – March 2023
We keep on Marching…
Every March we reflect back on 2020…the March when the world truly changed and our workplaces became remote and our daily lives were significantly impacted by the onset of a global pandemic. Since then, we’ve learned a lot, adapted countless times, and persevered through many challenges.
We are thankful and grateful for our clients and partners as we continue to navigate the changing landscape of employment laws and workplace dynamics. We’re all in this together!
For this Update, we’ve focused again on recent and upcoming legal changes – it’s hard to keep it all straight and we hope this helps!
Please note this is a summary of upcoming changes and not an all inclusive overview.
Legal Updates & Info
Under Federal Law…
EEO-1 Reporting: The due dates for EEO-1 reporting have bounced around the last couple years. Per the EEOC’s website “The 2022 EEO-1 Component 1 data collection is tentatively scheduled to open in mid-July 2023.” We will provide additional information once we have it, including any confirmation on whether there will be new categories to report on.
“Speak Out Act”: S.B. 4524, known as the “Speak Out Act” was signed by President Biden in December 2022. In simple terms, non-disclosure and non-disparagement clauses addressing sexual assault and/or harassment allegations are unenforceable if entered into “before the dispute arises”. Employers are encouraged to review their clauses/agreements and policies to ensure compliance.
COVID-19 Emergencies: President Biden has announced the COVID-19 public health emergency (PHE) and national emergency will end on May 11, 2023. By ending these emergencies, COVID-19 testing and COVID-19 vaccinations will be impacted. In short, health insurance plans will no longer be required to fully cover COVID-19 testing. As for vaccines, they are expected to be covered as a preventive service (similar to a flu shot) as of May 11th, if you visit an in-network provider. To prepare, employers are encouraged to work with their broker to learn more about how this change will impact their current benefit plan(s). It may also be important to review internal policies concerning testing and vaccination requirements, given these changes.
Overtime Eligibility: It’s reasonable to think that most people would assume an individual who makes $200,000 per year would not be eligible for overtime pay. A recent ruling by the Supreme Court, Helix Energy Solutions Group, Inc. v. Hewitt, tells us otherwise. How can that be? Here’s the quick explanation:
To be exempt from overtime under the administrative, executive, and professional exemptions, an employee needs to be paid on a salary basis, and also meet the salary threshold. In the Helix case, the employee (Hewitt) made over $200,000 – this clearly met the salary threshold. However, he was paid a daily rate, not a weekly salary. Straight from the Supreme Court’s decision, it is explained: “All that regulatory language—each phrase adding onto and reinforcing the others—reflects the standard meaning of a “salary,” which connotes a steady and predictable stream of pay, week after week after week. Put it all together and a daily-rate worker does not qualify under §602(a) as a salaried employee—even if (like Hewitt) his daily rate is high.” In simple terms, a guaranteed salary must be paid, at least, on a weekly basis.
What to do with this information? Assess your definition of “salaried basis” – if you have daily rate exempt employees, it’s likely best to ensure there is a guaranteed weekly base salary at all times.
NLRB Decision on Severance Agreements: The National Labor Relations Board (NLRB) made a decision saying employers cannot use severance agreements that ask employees to broadly waive their rights. To ensure compliance given this decision, and other recent changes at the state and federal level concerning severance agreements, we recommend having your agreements reviewed by a trusted attorney. “Recycling” old agreements to use for new issues/employees can be problematic. There’s a lot to unpack with this law so we’re sharing an article by Littler Mendelson P.C. if you are curious about more details.
In Washington…
Washington Long-Term Care Fund: The Washington Long-Term Care Fund was originally set to begin paycheck deductions in January 2022 – it was delayed by Governor Inslee to address some concerns brought forth by employers and other individuals. Those concerns have now been addressed and the final rules have been issued; the Washington Cares website outlines the changes made during that review process, which can be reviewed here, under 2022 Program Improvements. Here are the key points:
- Private Insurance Opt-Out: As a quick clarification, the deadlines related to the “private insurance opt-out” (i.e. employees securing qualifying private insurance to apply for an exemption) have NOT been extended. That option allowed individuals to secure private long-term care insurance on or before November 1, 2021 and apply for an exemption before December 31, 2022. This option is no longer available.
- New Exemption Pathways: As of January 1, 2023, there are new exemption pathways for individuals as outlined below. These are ongoing exemptions with no deadline for application. However, it is important to note that (with the exception of the veteran-related exemption) the exemption only applies as long as the circumstance applies.
- The employee lives outside of Washington.
- The employee is the spouse or registered domestic partner of an active-duty service member of the United States armed forces.
- The employee has a non-immigrant work visa.
- The employee is a veteran with a 70% service-connected disability rating or higher.
- Payroll Deductions: The effective date for employee payroll deductions is set for July 1, 2023. This means all Washington employers should prepare to make the deductions as of that date, unless an employee has an approved exemption or has received an approved “private insurance opt-out” from the Washington Employment Security Department.
In California…
Cal/OSHA’s Non-Emergency COVID Regulation: California has been one of the more active states in regard to COVID-19 regulations over the last three years. On February 3, 2023, the Cal/OSHA COVID-19 Non-Emergency Regulation (NER) was approved, and will be in place for two years, replacing any of the previous emergency temporary standards. NER is less burdensome for employers, essentially considering COVID-19 like any “workplace hazard” that employers would address under California’s Injury and Illness Prevention Program regulation. California has prepared a website outlining an FAQ with the details; highlights from NER are provided here:
- Exclusion pay (for employees unable to work due to COVID-19) is not required.
- Employers are not obligated to provide no-cost COVID-19 testing to employees experiencing COVID-19 symptoms not due to workplace exposure.
- Employers are allowed to conclude outbreak procedures after one (or zero) new COVID-19 cases in a 14-day period.
- Notification requirements now align with Labor Code section 6409.6 with primary changes being employers are no longer required to notify the local public health agency when an outbreak occurs.
California employers are encouraged to review the FAQ linked above. And, for ease of mind, remember that it is reasonable for employers to now address COVID-19 prevention under their existing Injury and Illness Prevention Programs.
In Oregon…
Paid Family Medical Leave Insurance (PFMLI): Implementation of the PFMLI program continues. Employers who did not sign up for an equivalent plan should be making contributions to the state. For those who did opt for an equivalent plan, the state is in the process of requesting verification and validation from employers via the application process. More information on equivalent plans can be found here: Equivalent plans – Paid Leave Oregon
If you have questions about any of this information please reach out – we are happy to help.
HRT Northwest: Your Northwest HR Team
Seattle: (253) 642-7372 | info@hrtnorthwest.com
This Update is not a full overview of all recent or upcoming legal changes. HRT Northwest is staffed by professionals in the field of Human Resources and business management. We are glad to help with your HR needs; however, we do not offer legal advice and our services are not a substitute for the help of a qualified attorney.