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Regulations You Need to Know in 2021

Emily Hartman /

Every month we cover upcoming deadlines and timely federal legislation and regulations you need to know from organizations like the U.S. Department of Labor (DOL), Environmental Protection Agency (EPA), and Occupational Safety and Health Administration (OSHA). We’ve captured the latest news directly below; keep scrolling to see what’s happened so far in 2021.

Stay on top of safety and compliance the right way, and be sure to seek legal counsel when you’re looking for how these changes will directly impact your business.

The Latest Federal Regulations You Need to Know About Right Now

DOL Extends Effective Date for Rescission of Joint Employer Rule

Who: All employers

When: Effective immediately

What: On September 20, 2021, the U.S. Department of Labor (DOL) announced an extension of the effective date of its final rule to rescind the March 2020 “Joint Employer Status under the Fair Labor Standards Act,” otherwise known as the Joint Employer Rule. The rescission date was originally set for September 28, 2021, and it is now October 5, 2021.

Joint employers are those that the DOL considers two separate companies that, together, are considered the worker’s employer and are therefore both responsible for paying the employee minimum wage and overtime in accordance with the Fair Labor Standards Act (FLSA).

How:

  • Continue to monitor regulations promulgated by the DOL.

Additional Resources:

Rescission of Joint Employer Status Under the Fair Labor Standards Act Rule

Recission of Joint Employer Status Under the Fair Labor Standards Act Rule: Delay of Effective Date

US Department of Labor Extends Effective Date of Final Rule to Rescind March 2020 Joint Employer Rule (News Release)

Wages and the Fair Labor Standards Act

DOL Publishes Final Rule on Tip Theft

Who: All employers

When: Effective November 23, 2021

What: The U.S. Department of Labor’s (DOL) tip regulations under the Fair Labor Standards Act (FLSA) prohibit employers from retaining employee tips or allowing managers or supervisors to participate in a tip pooling arrangement. On September 24, 2021, the DOL issued a final rule, effective November 23, 2021, that withdraws two portions of the final tip rule it issued in December 2020. (Those portions have not yet gone into effect.)

By doing so, they give the agency license to collect civil money penalties for violations—up to $1,100 per violation, plus back wages owed. The penalty applies to first and subsequent offenses, whether the violation was willful or accidental.

The new final rule also clarifies that managers or supervisors may contribute to mandatory tip pools or sharing arrangements, though they may not participate in them. In addition, a manager or supervisor may keep tips only when they receive tips received directly from a customer and when that tip is for service they directly and “solely” provided to that customer.

The tip rule promotes equity in the workplace. Its purpose is to ensure that workers receive all of the pay to which they are entitled.

How:

  • Review your tip pool practices and procedures to ensure they are in alignment with the provisions of the November 2021 final rule.
  • Continue to monitor for updates to FLSA.

Additional Resources:

Tip Regulations under the Fair Labor Standards Act (FLSA)

Wages and the Fair Labor Standards Act

Tip Regulations Under the Fair Labor Standards Act (FLSA); Partial Withdrawal

Medicare Part D Disclosure Notices Due October 14, 2021

Who: All employers

When: Due October 14, 2021

What: Employers that provide prescription drug coverage to employees must give covered individuals the required Medicare Part D disclosure notice by October 14, 2021. The requirement applies to Medicare-eligible employees. The notice must address the status of the prescription drug coverage as creditable or non-creditable under the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (MMA).

In addition to creditable/non-creditable status, the notice must:

  • Recite the beneficiary’s right to receive a notice;
  • List available coverage options;
  • Explain the consequences of coverage being creditable or non-creditable; and
  • Notify them that they could be subject to higher Medicare Part D premiums if they have a break in creditable coverage before enrolling in Medicare Part D.

Employers may provide a paper notice or send it electronically, with other plan materials or by itself, but they must comply with all applicable regulations as to the details of delivery.

How:

  • Provide the required notices to covered plan participants by October 14, 2021.

Additional Resources:

Model Notice Letters

Disclosure to CMS Guidance and Instructions

Office of Federal Contract Compliance Programs May Collect EEO-1 Component 2 Pay Data After All

Who: All employers

When: Effective immediately

What: On September 2, 2021, the Office of Federal Contract Compliance Programs rescinded its November 2019 statement of intent not to collect EEO-1 Component 2 data. Previously, the agency had thought it would not find significant utility in the pay data, but now says it reached that conclusion prematurely. The agency is once again evaluating whether the data would help them select which federal contractors to investigate for compliance and combat pay discrimination.

How:

  • Continue to monitor for updates after the agency completes its review.

Additional Resources:

Rescission of Notice of Intention Not To Request, Accept or Use Employer Information Report (EEO-1) Component 2 Data, November 25, 2019


Below is a running list of the federal rules and regulations, organized by federal agency, that we’ve tracked and reported on during 2021.

Department of Homeland Security

USCIS Issues Updated Guidance on Form I-9 Lost Document Receipts

Who: All employers

When: Effective immediately

What: On June 25, 2021, the United States Citizenship and Immigration Services (USCIS) issued updated guidance related to receipts for lost, stolen, or damaged documents presented for I-9 employment eligibility verification. If an employee presents a receipt as evidence that they applied to replace a lost, stolen, or damaged List A, B, or C document, they are supposed to show the replacement document within 90 days. In circumstances where that’s not possible, the employer is now permitted to accept other acceptable documents from List A, B, or C that prove the employee’s identity and/or employment authorization.

In such cases, the employer should:

  • Complete a new Section 2 on the Form I-9 and attach it to the original, and
  • Provide a note of explanation in the Additional Information box on page 2 of the Form I-9 or as a separate attachment.

How:

  • Update your I-9 and E-Verify policies to comply with the updated guidance.
  • Update your Form I-9 training materials for HR personnel and other personnel who process Form I-9 documents.

Additional Resources:

Updated Receipts Guidance

Receipts

USCIS Releases H-2B Employer Data Hub

Who: All employers

When: Effective  Immediately

What: On June 23, 2021, the United States Citizenship and Immigration Services (USCIS) launched the H-2B Employer Data Hub. This database gives the public access to information about employers who submitted petitions to employ H-2B workers any time during the period of fiscal year 2015 through the first quarter of 2021.

Employers who meet the regulatory requirements can petition the USCIS to bring H-2B workers, who are foreign nationals, to the United States for a limited time to fill temporary nonagricultural jobs. The USCIS caps the number of such workers who can be hired in any given fiscal year.

The new Data Hub allows interested parties to download complete files for each fiscal year or to query data by certain parameters, including:

  • Fiscal year;
  • Employer name;
  • Petitioner;
  • City, state, or zip code;
  • Worksite state;
  • Cap type;
  • North American Industry Classification System (NAICS) code; and
  • Standard Occupational Classification (SOC) code.

The data includes:

  • Consular processing,
  • Wage levels, and
  • The first adjudicative decision that USCIS made on petitions for initial and continuing employment.

How:

  • As necessary, you have the option to query the H-2B Employer Data Hub to see which data appear under your organization’s name.

Additional Resources:

USCIS Launches H-2B Employer Data Hub (Press Release)

H-2B Employer Data Hub

Understanding Our H-2B Employer Data Hub

E-Verify Record Disposal Deadline Extended

Who: All employers who use E-Verify

When: Download records by June 4, 2021

What: On May 19, 2021, the U.S. Citizenship and Immigration Services (USCIS) extended the deadline for employers to download their E-Verify case records that are 10 years old or older—meaning those dated before December 31, 2010. The deadline was previously May 14, 2021 and is now June 4, 2021. USCIS annually disposes of older records in accordance with the National Archives and Records Administration (NARA) records retention and disposal schedule.

The information employers may download and archive on their own servers is contained in the Historic Records Report. That report includes:

  • Company name and location;
  • Initiated date and verification case number;
  • Employee name and date of initial resolution;
  • Date of additional resolution and final status; and
  • Case closure date and case closure description.

How:

  • Download and archive your E-Verify case records dated before December 31, 2010 by June 4, 2021.

Additional Resources:

Instructions to Download Historic Records Reports in E-Verify (Revised January 20, 2021)

E-Verify Records Retention and Disposal Fact Sheet

SAVE Instructions to Download Historic Records Report Tip Sheet

USCIS H-1B Cap Met for Fiscal Year 2022

Who: All employers with fiscal year 2022 H-1B registrants

When: Effective immediately

What: On March 30, 2021, U.S. Citizenship and Immigration Services (USCIS) announced that the initial H-1B cap selection process for fiscal year 2022 has been completed. Randomly selected persons were selected from among correctly submitted registrations to reach the cap for the regular and master’s degree H-1B programs.

Selected registrants may file their petitions starting April 1, 2021 and will have at least a 90-day window to complete the process.

How:

  • File an H-1B cap petition for selected registrations starting during the 90-day (or possibly longer) window offered by the USCIS, starting April 1, 2021.

Additional Resources:

FY 2022 H-1B Cap Season Updates (USCIS Press Release)

H-1B Electronic Registration Process

USCIS to Purge Older E-Verify Records

Who: Employers who use E-Verify

When: Download by May 14, 2021

What: U.S. Citizenship and Immigration Services (USCIS) announced a May 14, 2021 deadline for employers to download their E-Verify case records that are 10 years old or older—meaning those dated before December 31, 2010. USCIS annually disposes of older records in accordance with the National Archives and Records Administration (NARA) records retention and disposal schedule.

The information employers may download and archive on their own servers is contained in the Historic Records Report. That report includes:

  • Company name and location;
  • Initiated date and verification case number;
  • Employee name and date of initial resolution;
  • Date of additional resolution and final status; and
  • Case closure date and case closure description.

USCIS published a set of instructions employers can refer to if needed.

What Should You Do?

Download and archive your E-Verify case records dated before December 31, 2010 by May 14, 2021.

Additional Resources:

E-Verify Records Retention and Disposal Fact Sheet

SAVE Instructions to Download Historic Records Report Tip Sheet

Starting March 9: Registration for USCIS H-1B Lottery Opens

Who: Employers with employees who are H1-B applicants

When: March 9, 2021

What: The U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B lottery process will open at 12:00 PM Eastern Time on March 9, 2021. It will continue through 12:00 PM Eastern Time on March 25, 2021. The lottery process, which randomly selects which applications for H1-B status will be accepted, is the same as last year. It caps applications for new regular H1-B visas to a quantity of 65,000 and caps applications for “specialty worker” visas to a quantity of 20,000. The USCIS will notify the selected candidates by March 31, 2021. Candidates may begin applying starting April 1, 2021.

A new rule that bases the selection process on wage levels was scheduled to take effect on March 9, 2021, but implementation has been delayed until December 31, 2021.

How:

  • Determine which employees or potential employees you will sponsor in the H1-B lottery, and – gather the required information.
  • Register for your online USCIS account.
  • Consult with legal counsel to help workers who are H1-B applicants complete the process successfully.

Additional Resources:

H1-B Electronic Registration Process

Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions; Delay of Effective Date

New Procedure for Extending Green Card Expiration Date

Who: All employers

When: Effective immediately

What: On January 12, 2021, United States Citizenship and Immigration Services (USCIS) announced that it has implemented a new procedure For Applications to Replace Permanent Resident Card (the “Green Card”) submitted January 1, 2021 or later. A lawful permanent resident (LPR) must apply for an extension of their Green Card using Form I-90. Now, USCIS issues a revised Form I-797, Notice of Action, to acknowledge receipt of the Form I-90. This step is different, because the agency used to issue stickers to extend the expiration date (though they will still issue the sticker for any LPRs with scheduled biometrics appointment).

The Green Card, along with the revised Form I-797, extends the Green Card validity for 12 months after the expiration date on the front of the Green Card. This combination of documentation allows the LPR to come back into the country after temporary foreign travel, documents their identity, and serves as authorization for employment. LPRs who file Form I-90 should expect to receive the revised Form I-797 in the mail about seven to 10 days after USCIS accepts the application.

Employers should note that the combination of the Permanent Resident Card and the Form I-797 are now listed as List A document for I-9 documentation. Employers may not reverify LPRs who use this document combination.

How:

  • Update your HR manual and employee-facing documentation to note the change in the procedure and acceptable documentation.
  • If you keep copies of I-9 documentation, be sure to keep a copy of the Permanent Resident Card and the Form I-797.

Additional Resources:

USCIS to Replace Sticker That Extends Validity of Green Cards (Press Release)

Notice to Replace Sticker That Extends Validity of Permanent Resident Cards

Jan. 14: Federal E-Verify Program Releases New Video

Who: All employers

When: Released January 14, 2021

What: The federal E-Verify program released a new video that helps employers enroll in the E-Verify program, which allows employers to quickly verify if an individual is eligible to work legally in the United States. The video is just over four minutes long and explains how to complete each step of the enrollment process, including all of the information you need to gather prior to enrollment.

How:

  • If you need assistance with the E-Verify enrollment process, watch the new video guide.

Additional Resources:

E-Verify Enrollment Video

E-Verify Enrollment Website

Learn More About E-Verify and myE-Verify

Department of Labor

Joint Employer Rule Rescinded by DOL

Who: All employers

When: Effective September 28, 2021

What: On July 29, 2021, the U.S. Department of Labor (DOL) announced a final rule that rescinds the “Joint Employer Status under the Fair Labor Standards Act” rule that went into effect in March 2020. With this change, the current administration intends to ensure that employees receive the compensation that is due them—at least minimum wage for their work and overtime pay for more than 40 hours worked in a week.

Those protections are owed to employees who work for covered employers, per the Fair Labor Standards Act (FLSA). If an employer is not considered a “covered employer,” they are not responsible for paying minimum wage or overtime. Joint employers are those that the DOL considers two separate companies that, together, are considered the worker’s employer and are therefore both responsible for paying the employee minimum wage and overtime.

In the rescinded rule, a more stringent test excluded many employers from the definition of covered employer—employers that previously were defined as joint employers. In the opinion of the DOL and the Biden Administration, that rule conflicted with Congressional intent, the Administrative Procedures Act, prior DOL guidance, and previous statutory law.

How:

  • Continue to monitor regulations promulgated by the DOL to implement the Biden Administration’s pro-worker agenda.

Additional Resources:

Rescission of Joint Employer Status Under the Fair Labor Standards Act Rule

Wages and the Fair Labor Standards Act

Due September 30: VETS-4212 Report

Who: Federal government contractors

When: Due by September 30, 2021

What: U.S. government contractors and subcontractors must file a VETS-4212 report with the U.S. Department of Labor (DOL) by September 30, 2021, if they:

  • Currently have at least one contract that is covered by the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) (i.e., a contract of $150,000 or more with department, agency, establishment, or instrumentality of the United States government), or
  • Had such a contract as of January 1, 2021.

The data in the report reflects an organization’s affirmative action efforts to employ veterans.

Contractors can report their snapshot data as of either December 31, 2020 or as of a date between July 1, 2021 and August 31, 2021, that is the end of a payroll period. The remainder of the data should cover the 12 months immediately preceding the snapshot date.

Covered contractors must file the data annually. The DOL asks all contractors to first refer to their FAQs before calling for help. It also strongly encourages contractors to file the report online rather than mailing a paper report, due to delays in the postal system. Contractors are also advised to file earlier rather than later because the online system becomes bogged down the week before the deadline.

How:

  • Determine if you are required to report the VETS-4212 data by using the Report Advisor.
  • File your VETS-4212 data by the September 30, 2021 deadline.

Additional Resources:

VETS-4212 Report Advisor

VETS-4212 Federal Contractor Reporting

VETS Frequently Asked Questions

DOL Proposes Rule to Increase Minimum Wage for Federal Contractors

Who: Employers with federal contracts

When: Comments due by August 23, 2021

What: On July 21, 2021, the U.S. Department of Labor Wage and Hour Division announced a proposed rule that implements Executive Order 14026, “Increasing the Minimum Wage for Federal Contractors” signed by President Biden on April 27, 2021.

The current federal contract minimum wage is $10.95 per hour, as established under Executive Order 13658, “Establishing a Minimum Wage for Federal Contractors,” which was signed by President Obama in 2014. For covered federal contract workers, the new rule would:

  • Increase the minimum wage to $15.00 per hour beginning January 30, 2022, including workers with disabilities who perform work under covered contracts;
  • Eliminate the tipped minimum wage by 2024; and
  • Restore minimum wage for outfitters and guides operating on federal lands.

The new rule would continue the practice of indexing the minimum wage to inflation.

How:

Additional Resources:

Proposed Rule Increasing the Minimum Wage for Federal Contractors

Executive Order 14026

Regulations.gov

DOL Proposes Rule Affecting Tipped Workers and Their Employers

Who: All employers with “dual-job” employees

When: Comments due by August 23, 2021

What: The U.S. Department of Labor (DOL) has proposed an amendment to its rule regarding hourly wages for nontipped work for employees who do tipped and nontipped types of work—called “dual-job” workers. The nontipped work the DOL refers to is that which directly supports the tipped work the employee does (e.g., folding napkins for the patrons of a restaurant where the employee waits tables for tips). This work is also known as “side work.”

The proposed rule states that employers must pay the federal minimum wage of $7.25 per hour for directly supporting work that the employee does for a “substantial amount of time.” Substantial is defined as either:

  • Exceeding 20% of the employees’ hours worked during a workweek, or
  • Performed for a continuous period exceeding 30 minutes.

If the side work directly supports tipped work and does not meet the definition of “substantial,” an employer can take a tip credit for that time worked. That means the rate per hour the employer pays is $2.13, as long as the worker’s tips make up the rest of the $7.25 per hour federal minimum wage.

The proposed rule also states that employers must pay employees the federal minimum wage of $7.25 per hour for work that does not directly support tipped work. An example is assigning a server to clean bathrooms.

How:

  • Submit your comments on the proposed rule by August 23, 2021.
  • Continue to monitor the regulation for updates.

Additional Resources:

Tip Regulations Under the Fair Labor Standards Act; Partial Withdrawal

Regulations.gov

DOL Publishes Cybersecurity Guide for Retirement Accounts

Who: All employers

When: Effective immediately

What: On April 14, 2021, the U.S. Department of Labor (DOL) Employee Benefits Security Administration published three brand-new guides to help plan sponsors, administrators, and participants protect retirement asset accounts from cybersecurity threats. The guides are as follows:

  • For sponsors/employers: “Tips for Hiring a Service Provider with Strong Cybersecurity Practices”
  • For administrators: “Cybersecurity Program Best Practices”
  • For participants: “Online Security Tips”

The guidance consists of specific, practical tips. It is geared toward plan sponsors and fiduciaries that are regulated by the Employee Retirement Income Security Act (ERISA), along with all plan participants and their beneficiaries. ERISA requires plan fiduciaries to address the risk of cybersecurity attacks on participants’ assets and their personal data.

How:

  • Update your policies and practices to align with the new cybersecurity recommendations, as they apply to your organization.

Additional Resources:

Tips for Hiring a Service Provider with Strong Cybersecurity Practices

Cybersecurity Program Best Practices

Online Security Tips

DOL Withdraws Independent Contractor Rule

Who: All employers

When: Effective immediately

What: The U.S. Department of Labor (DOL) announced its withdrawal of the Independent Contractor Status Under the Fair Labor Standards Act final rule, known as the Independent Contractor Rule. The Rule was slated to go into effect on May 6, 2021.

The agency stated that the Rule is inconsistent with the text and purpose of the FLSA and that it would be confusing and disruptive for workers and businesses, given its deviation from judicial precedent. The withdrawal of the Rule is consistent with the Biden Administration’s commitment to protecting employees’ rights.

How:

  • Continue to refer to the DOL’s Fact Sheet 13 to help guide you in the decision to classify a worker as an employee or independent contractor.

Additional Resources:

U.S. Department of Labor to Withdraw Independent Contractor Rule (Press Release)

86 FR 24303 (Withdrawal)

Final Rule: Independent Contractor Status under the Fair Labor Standards Act 29 CFR Parts 780, 788, and 795

DOL Launches Spanish Translation of Worker.gov Website

Who: All employers with Spanish-speaking employees

When: Effective immediately

What: On April 1, 2021, the U.S. Department of Labor (DOL) launched a Spanish-language translation of the Worker.gov website. The purpose is to expand awareness of workers’ rights concerning “wages, safety, equality rights, retirement benefits, organizing with coworkers, and fair treatment as veterans or service members.”

The DOL created the new site in accordance with Executive Order 13166, which encourages federal agencies to make information available to workers with limited English proficiency.

How:

  • Consider notifying Spanish-speaking employees of the new website.

Additional Resources:

Worker.gov (Spanish)

Other DOL Resources in Spanish

DOL to Implement Portions of the Final Rule on Tip Pooling

Who: Employers with tipped employees

When: Comments due April 14, 2021 and May 24, 2021

What: On February 26, 2021, the U.S. Department of Labor (DOL) announced that it will delay the effective date of the Tip Regulations Under the Fair Labor Standards Act final rule from early March to April 30, 2021 in order to consider the ramifications of the rule.

Several portions of the rule will go into effect on April 30, 2021 as planned, including:

  • Employers, supervisors, and managers may not keep tips received by workers, whether or not the employer takes a tip credit. This portion of the rule provides significant protection for tipped employees.
  • Employers that do not take a tip credit may choose to include nontipped workers in a tip-sharing pool. Taking this option would increase the earnings of certain workers, such as cooks and dishwashers.

The DOL proposes to extend the effective date of three provisions of the final rule until December 31, 2021. The DOL would take the opportunity afforded by the time extension to evaluate applicable questions of law, policy, and fact. The three provisions are related to:

  • Civil money penalties for violating the prohibition on keeping an employee’s tips,
  • The definition of a “willful” violation for purposes of assessing the civil money penalties, and
  • When tip credit applies to employees who perform tipped and non-tipped work (i.e., dual jobs).

Employers may submit comments on this proposed extension until April 14, 2021.

A second proposed rule asks for public comment on whether to change the provision defining “managers or supervisors,” which acknowledges the fact that managers and supervisors perform substantial amounts of tipped work. This proposed rule also addresses the fact that employers may not correctly or honestly account for all tips that are contributed to a mandatory tip pool and solicits comments on how to rectify that issue. Employers may submit comments on the proposed rules until May 24, 2021.

What Should You Do?

Additional Resources:

Tip Regulations Under the Fair Labor Standards Act (FLSA) Final Rule

Tip Regulations Under the Fair Labor Standards Act (FLSA); Partial Withdrawal

Tip Regulations Under the Fair Labor Standards Act (FLSA); Delay of Effective Date

US Department of Labor Announces Proposed Rulemakings to Further Consider, Review Tipped Workers’ Regulations

Final Rule: Tip Regulations under the Fair Labor Standards Act (FLSA)

Department of Labor Ends PAID Program

Who: All employers

When: Effective Immediately

What: On January 29, 2021, the U.S. Department of Labor (DOL) terminated its Payroll Audit Independent Determination (PAID) program, which allowed employers to self-report federal minimum wage and overtime violations under the Fair Labor Standards Act (FLSA). The program was launched by the DOL’s Wage and Hour Division in 2018. It allowed employers to avoid punishment for their actions and disallowed affected workers from taking private action against the employer.

Now that the alternative method of addressing wage violations is no longer available, employers must resolve federal FLSA claims through one of the two remaining options: a court-approved settlement or at the conclusion of a DOL investigation. State wage and hour claims continue to be resolved according to state laws and state agencies.

How:

  • Continue to audit your pay records and be proactive about correcting wage violations.

Additional Resources:

US Department of Labor Ends Program That Allowed Employers to Self-Report Federal Minimum Wage and Overtime Violations (Press Release)

U.S. Department of Labor Wage and Hour Division

Department of Labor Withdraws Three Opinion Letters About Tipped Employees and Independent Contractors

Who: All employers

When: Effective immediately

What: The Biden Administration withdrew three U.S. Department of Labor (DOL) opinion letters that were based on rules not yet in effect. Those rules—slated to go into effect in March 2021—fall under the regulatory freeze that Biden issued on his first day in office.

One opinion letter addressed the rules for tipped servers and nontipped employees sharing a tip pool. The other two letters addressed the classification of certain workers as independent contractors or employees under the FLSA. One addressed the situation where tractor-trailer truck drivers are required to implement legally required safety measures and how that requirement would impact the driver’s classification as an independent contractor. The other discussed the employment status of distributors of a manufacturer’s food products.

How:

  • If you had already implemented changes in response to the opinion letters, consider a contingency plan in case the letters or the underlying regulations on which they are based are withdrawn.
  • Continue to monitor for additional changes in guidance from the Department of Labor.  

Additional Resources:

Tip Regulations Under the Fair Labor Standards Act (FLSA): Delay of Effective Date

Independent Contractor Status Under the Fair Labor Standards Act: Delay of Effective Date

Continued Allowance of Telemedicine as an “In-Person Visit”

Who: All employers

When: Effective immediately

What: On December 29, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced new guidance as part of its efforts to support American workers through the pandemic recovery. The intention is to allow employees and employers more flexibility in exercising their rights pertaining to the Family and Medical Leave Act (FMLA). Covered workers may take up to 12 weeks of unpaid leave for qualifying events.

Field Assistance Bulletin No. 2020-8 addresses when the WHD considers telemedicine an “in-person” visit for the purposes of establishing a serious health condition that qualifies for protected time off under the Family and Medical Leave Act (FMLA). To qualify as an in-person visit, the visit must:

  • Include an examination, evaluation, or treatment by a health care provider;
  • Be permitted and accepted by state licensing authorities; and,
  • Generally, be performed by video conference.

The Bulletin makes the new definition of in-person visit permanent. It was previously set to expire at the end of 2020.

How:

  • Review your policies and practices regarding FMLA leave to ensure they are in compliance with the new regulation.
  • Check your state-mandated family leave laws about telemedicine to determine if you must update policies and practices.
  • Train managers and supervisors on the law if they were unaware of it or were operating under the assumption that it expired at the end of 2020.

Additional Resources:

Field Assistance Bulletin No. 2020-8

U.S. Department of Labor Issues Guidance Supporting Workplace Flexibilities Through Virtual Communication (Press Release)

DOL Defines When Electronic Employee Notices Are Acceptable

Who: All employers

When: Effective immediately

What: On December 29, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced guidance regarding when it will allow employers to electronically notify employees of their statutory rights under a variety of federal labor laws. Typically, a notice must be physically posted in a location where all employees can easily access it, such as a bulletin board in a lobby or break room. When employees are working remotely, the requirement to notify via a physical poster or document presents a challenge.

Field Assistance Bulletin No. 2020-7 applies to the notice requirements for these statutes and corresponding regulations:

  • Fair Labor Standards Act (FLSA),
  • Family and Medical Leave Act (FMLA),
  • Section 14(c) of the FLSA (Section 14(c)),
  • Employee Polygraph Protection Act (EPPA), and
  • Service Contract Act (SCA).

It states that the WHD considers electronic posting an acceptable substitute for the continuous posting requirement only when all employees:

  • Work only remotely,
  • Customarily receive information from the employer via electronic means, and
  • Have readily available access to the electronic posting at all times.

The electronic notification system must be as effective as the physical posting. That means employers must explain where and how to access the notices, and the notices must be available at all times. In addition, employees must be able to tell which notices apply to them. If some employees work remotely and others work onsite, the notification must be physical and electronic.

The Bulletin also states that employers may deliver required notices to individuals electronically only if the employee “customarily receives information from the employer electronically.”

How:

  • Review your practices related to electronic posting and ensure you are in compliance with the federal notice requirements.
  • Provide access to a company website page or portal where employees can access federal and state posters.
  • Notify employees how and where to access each required notice.
  • Consider adding the location of the electronic notices to your employee handbook.
  • Check with state and local agencies regarding their requirements for electronic posting.

Additional Resources:

Field Assistance Bulletin No. 2020-7

U.S. Department of Labor Issues Guidance Supporting Workplace Flexibilities through Virtual Communication (Press Release)

Opinion Letters on Paid Travel Time and Administrative Employee Exemptions

Who: All employers

When: Effective immediately

What: The Department of Labor (DOL) issued Opinion Letter FLSA2020-19 on December 31, 2020 that gives employers guidance as to when to pay for travel time for employees who work both onsite and remotely. The DOL considered how the “continuous workday” rule applies, especially when employees are attending to personal business during the day.

The DOL stated that compensable work time is primarily for the benefit of the employer and does not include time where the employee is attending to personal business for a long enough time as to be considered relieved of their duties. Commute time to or from the workplace is not compensable, regardless of the fact pattern examples presented in the Opinion Letter 2020-19. Breaking up the day to attend to personal business when going from a home office to an onsite office does not constitute compensable travel time.

The Department of Labor (DOL) issued an Opinion Letter 2021-1 on January 8, 2021 that gives employers guidance as to when certain employees qualify as administrative employees and are exempt from minimum wage and overtime pay requirements under the Fair Labor Standards Act (FLSA). With the facts provided about account managers for a life science products company, the DOL determined that they do qualify for the administrative exemption by meeting the duties requirements. The reasoning includes:

  • They are paid above the weekly salary threshold of $684.00 per week;
  • Their primary duty is performing office/non-manual work related to management or general business operations; and
  • They exercise discretion and independent judgment in significant matters.

The facts also include that the employees are not closely supervised, don’t follow a sales script, and are key points of contact at the company. See Opinion Letter 2021-1 for details.

How:

  • Review your travel time policy to be sure it clearly states what is and is not compensable, given the fact that many employees are now working remotely and consider “home” to be one worksite and “office” to be another worksite.
  • Review your policies and practices related to categorizing account managers or similar employees as administrative with regard to FLSA.
  • Consult legal counsel as needed.

Additional Resources:

DOL Opinion Letter FLSA2020-19 (Travel Time)

DOL Opinion Letter FLSA2021-1 (Administrative Exemption)

Jan. 1: Minimum Wage Increases for Federal Contractors

Who: All employers with covered federal contracts

When: Effective January 1, 2021

What: The U.S. Department of Labor published a notification that the minimum wage for workers performing work on or in connection with federal contracts covered by Executive Order 13658 will increase to $10.95 per hour as of January 1, 2021. The minimum cash wage paid for tipped employees will increase to $7.65 per hour. The wage is adjusted in accordance with the Consumer Price Index for Urban Wage Earners and Clerical Workers.

Employers must post the required employee notification by January 1, 2021. The official updated notification poster will be released by the end of December 2020.

How:

  • Post the employee notification poster by January 1, 2021.
  • If you have covered employees who will be earning less than $10.95 per hour as of the first of the year, plan to increase their rate of pay starting January 1, 2021. Determine if affected contracts are eligible for a price adjustment and submit the related request to the Contracting Officer as applicable.
  • Factor the increased minimum wage into pricing for new contracts.

Additional Resources:

Notification of Increase in Minimum Wage for Contractors

Federal Minimum Wage for Contractors Poster (will be updated by the end of 2020)

Dec. 1, 2020: U.S. District Court Rules Against Trump Administration’s Recently Issued H-1B Rules

Who: All employers

When: Ruling issued December 1, 2020

What: The U.S. Chamber of Commerce was granted an order for partial summary judgment in a lawsuit against the U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security (DHS). The suit challenged the DHS and DOL interim final regulations recently issued to change the H-1B program. The rules significantly changed wages to be paid to certain foreign workers and made it harder to qualify for an H-1B visa. The end result would have been to make it much more difficult for U.S. employers to hire certain highly skilled foreign workers.

Both rules were set aside under the Administrative Procedure Act. The court determined that the logic used to forego the APA’s good cause exception and implement the new rules on an emergency basis was flawed.

How: If you were affected by the new H-1B rules that went into effect in December, watch for news about when wages will revert to normal and whether wage determinations issued with a higher will be reissued.

Environmental Protection Agency

June 30: EPA e-Manifests Move to Electronic System Only, Impacting All Hazardous Waste Generators

Who: All hazardous waste generators, especially generators subject to federal or state manifesting requirements

When: June 30, 2021

What: Although the EPA’s e-Manifest system has been in place since June 30, 2018, the agency allowed the use of paper and electronic manifests. Starting June 30, 2021, the EPA is transitioning the system to be fully electronic to better track hazardous waste shipments as they move from generators to transporters to treatment/disposal facilities.

Treatment Storage Disposal Facilities (TSDF), who are requireed to use e-Manfiests, may also require their generators and transporters use the electronic systems. Hazardous waste generators will need to check how their waste haulers and the TSDF are tracking the shipments and if they can use the electronic system too. The EPA’s electronic system remains optional for the generator of waste.

There are advantages to using the e-Manifest system including ensuring the generator’s 3 years of manifests are automatically maintained, the ability to track the shipment throughout the entire shipping process, faster response to missing shipments, and eliminating the need for paper copies which can be mismanaged and lost.

There is a fee to use the e-Manifest system, but that fee is only for the receiving facility or TSDF. The receiving facility may pass, or is already passing that fee to generators on their invoices.

Background on Hazardous Waste Generators

Large Quantity Generators (LQGs):

  • LQGs generate more than a 2,200lbs of hazardous waste/month, or more than 1 kilogram per month of highly-toxic or acutely toxic hazardous waste
  • LQGs have no limit on the amount of hazardous waste they may accumulate on-site
  • LQGs may only store or accumulate waste on-site for a period of 90 days, although some exceptions may apply
  • LQGs must submit a hazardous waste report every two years

Small Quantity Generators (SQGs):

  • SQGs generate in between 220lbs and 2,200lbs per month
  • A SQG’s quantity of hazardous waste held on-site can never exceed 13,000lbs
  • They may accumulate waste, without a permit, on-site for up to 180 days (and up to 270 days if shipping the hazardous waste over a distance that exceeds 200 miles)

Very Small Quantity Generators (VSQGs):

  • Although VSQGs aren’t required to follow the hazardous waste manifesting regulations it is a best practice
  • VSQGs must identify all the hazardous waste generated
  • VSQGs may not accumulate more than 2,200lbs of hazardous waste at any time

How Does This Affect My Company?

  • KPA customers should talk with their EHS Consultant about what, if anything, needs to be done.
  • Contact your waste hauler and designated TSDF to see if they have or will be requiring you to start using the e-manifest system.
  • Determine if your business is located in a state with different hazardous waste requirements.
  • Check your RCRA info to make sure your site ID information is correct and update if necessary.
  • If you transition to the e-Manifest system, register here. You must have an EPA Identification Number.
  • If you don’t have an EPA ID number but are transitioning to the e-Manifest system: Depending on your state, you can obtain an EPA ID number by submitting the federal form (8700-12) or by submitting your state-specific form. View your state requirements and acceptable forms to obtain an EPA ID.

Additional Resources

EPA e-Manifest FAQs

Categories of Hazardous Waste Generators

e-Manifest Workshop Slides

EPA e-Manifest

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Equal Employment Opportunity Commission

EEOC Extends EEO-1 Data Deadline to October 25, 2021

Who: Private employers with 100 or more employees; federal contractors with at least 50 employees and a contract of $50,000

When: Data due by October 25, 2021

What: The Equal Employment Opportunity Commission (EEOC) extended the collection of 2019 and 2020 EEO-1 data from August 23, 2021, to a final deadline of October 25, 2021. The EEOC had previously delayed data collection to allow employers additional reporting time due to the COVID-19 pandemic. The agency has stated that this is the final deadline and there will be no further extensions.

How:

File all 2019 and 2020 EEO-1 data by October 25, 2021.

Additional Resources:

2019 & 2020 EEO-1 Component 1 Data Collection

EEO-1 Component 1 – Announcements: Data Homepage

EEOC Extends EEO-1 Data Deadline to August 23, 2021

Who: Private employers with 100 or more employees; federal contractors with at least 50 employees and a contract of $50,000

When: Data due by August 23, 2021

What: The Equal Employment Opportunity Commission (EEOC) has extended collection of 2019 and 2020 EEO-1 data from July 19, 2021 to August 23, 2021. The EEOC had previously delayed data collection to allow employers additional reporting time due to the COVID-19 pandemic.

How:

  • File all 2019 and 2020 EEO-1 data by August 23, 2021.

Additional Resources:

2019 & 2020 EEO-1 Component 1 Data Collection

EEO-1 Component 1 – Announcements: Data Homepage

April 26: EEO-1 Data Portal Opens

Who: Private employers with 100 or more employees; federal contractors with at least 50 employees and a contract of $50,000

When: Due July 19, 2021

What: On March 29, 2021, the Equal Employment Opportunity Commission (EEOC) announced that it will open its online portal for the collection of 2019 and 2020 EEO-1 data on April 26, 2021. The EEOC had previously delayed data collection to allow employers additional reporting time due to the COVID-19 pandemic. The new reporting deadline for both 2019 and 2020 data is July 19, 2021.

What Should You Do?

File all 2019 and 2020 EEO-1 data by July 19, 2021.

Additional Resources:

EEO-1 Component 1 – Announcements: Data Homepage

EEOC Announces April 26 Opening Date for the Collection of 2019 and 2020 EEO-1 Component 1 Data (Press Release)

April 2021: EEOC to Collect EEO-1 Data

Who: Private employers with 100 or more employees; federal contractors with at least 50 employees and a contract of $50,000

When: Due April 2021

What: The Equal Employment Opportunity Commission (EEOC) has delayed collection of 2019 and 2020 EEO-1 data until April 2021. The EEOC will announce the exact date the filing platform will open in a letter to previous filers, on the agency’s home page, and on a dedicated website. The collection of 2019 data was originally delayed due to the COVID-19 pandemic.

How:

  • Watch for the opening date of the filing platform on the EEOC website.
  • File all 2019 and 2020 EEO-1 data by the deadline.

Additional Resources:

EEO-1 Component 1–Announcements (EEOC Data Homepage)

EEOC Schedules 2021 Openings of EEO Data Collections After Delay Due to COVID-19 Public Health Emergency (Press Release)

Revised Guidance on Religious Accommodation in the Workplace

Who: All employers

When: Effective immediately

What: The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing Title VII of the Civil Rights Act, which requires employers to make reasonable accommodations for an employee’s religious beliefs, as long as it does not cause an undue hardship for the employer. On January 15, 2021, the EEOC published revised guidance for employers that clarifies the legal protections available to employers and employees and includes U.S. Supreme Court and other federal court decisions made since 2008, which was the last time the compliance guidance was updated.

As a general guideline, the agency stated, “Employers should allow religious expression among employees at least to the same extent that they allow other types of personal expression that are not harassing or disruptive to the operation of the business.” The revised guidance gives dozens of examples of accommodation, including flexible scheduling, swapping shifts on a voluntary basis, and granting lateral transfers. The guidance discusses when employers would and would not need to provide reasonable accommodation and expands the discussion of legal defenses available to employers based on their own religious beliefs.

The revised guidance warns employers that interpreting religion or religious beliefs is not within their purview, unless they can show that the belief is a mere personal preference or a social, political, or economic philosophy that does not cross over into religious beliefs. An employee’s belief or practice is defined as religious based on their “own scheme of things,” as long as it is sincerely held. It doesn’t matter if the employer agrees with it or finds it illogical or incomprehensible.

The revised guidance also contains a section on analysis of undue hardship, which it defines as circumstances where accommodation “diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.” The EEOC encourages employers to have open dialogue with the employee to explore options that achieve the goal of allowing the employee to hold true to their religious beliefs without causing an undue hardship for the employer.

Religious organizations, including religious schools, hospitals, and charities, are exempt from the prohibition against religious discrimination. The court determines whether an organization is “religious” based on the specific facts of the case.

How:

  • Review your policies and practices to ensure you are in compliance with the revised guidance.
  • Consider writing or revising anti-discrimination and anti-harassment policies to include religious discrimination and accommodation, along with procedures for reporting, investigating, and addressing religious-based harassment.
  • Train managers and HR personnel on the definition of religion, how to accommodate religious beliefs, and how to prevent or stop religious discrimination.

Additional Resources:

Compliance Manual Section on Religious Discrimination

Opinion Letter Clarifies OWBPA Disclosures to Foreign Workers

Who: Employers with foreign workers outside the U.S.

When: Effective immediately

What: On January 14, 2021, the Equal Employment Opportunity Commission (EEOC) issued an opinion letter on disclosing Older Workers Benefit Protection Act (OWBPA) information to foreign workers working for American employers outside the U.S. The letter states that non-U.S. citizen working abroad are not employees for purposes of the Age Discrimination in Employment Act of 1967 (ADEA). Therefore, employers need not give those workers the -OWBPA disclosures, even if those workers were considered part of the “decisional unit” for the termination program.

The OWBPA otherwise requires employers to give employees who are 40 and older notice in order to obtain an enforceable release of ADEA claims in exchange for severance pay and benefits. That notice must include:

  • Any class, unit, or group of individuals covered by the termination program (the decisional unit);
  • Eligibility factors for the program;
  • Time limits for the program;
  • Job titles and ages of all individuals eligible or selected for the program; and
  • The ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.

The EEOC specified that employers could rely on the opinion letter as a binding legal authority in related proceedings brought against it.

How:

  • Consider consulting legal counsel to determine whether your decision to voluntarily include non-U.S. citizen workers working abroad in the OWBPA disclosure (or exclude them from it) could create a valid argument that the decision would mislead covered employees and therefore violate the ADEA.

Additional Resources:

Commission Opinion Letter: Older Worker Benefit Protection Act

Final Rule Related to Conciliation Procedures

Who: All employers

When: Effective immediately

What: On January 7, 2021, the Equal Employment Opportunity Commission (EEOC) released its final rule to update its conciliation process. The rule has been cleared by the Office of Management and Budget and will be officially published in the Federal Register within 30 days.

The purpose is to make the conciliation process more transparent and consistent and to ensure the EEOC meets its statutory obligations. The EEOC resolves less than half of the charges through the conciliation process, and it wants to encourage employers involved in employment discrimination cases to voluntarily cooperate and comply.

In the past, the EEOC has not been transparent with the facts of the case against the employer. With this change, the EEOC will give the employer much more information, including:

  • A summary of the facts and disclosable information the EEOC relied on to reach its ruling;
  • A summary of the legal basis for ruling against the employer;
  • The criteria the EEOC used to identify other employees for whom it will seek relief;
  • The basis for damages or other relief sought, including details of the calculations; and
  • Identification of any designation that the EEOC might use to seek class-based relief.

In addition, employers now have at least 14 calendar days to review the charges and respond to the EEOC.

How:

  • Familiarize yourselves with the new rule and reconsider voluntarily participating in the EEOC’s conciliation process.

Additional Resources:

EEOC Publishes Final Conciliation Rule (Press Release)

Final Rule – Update of Commission’s Conciliation Procedures

Proposed Changes – Update of Commission’s Conciliation Procedures

EEOC Releases New Employee Data Query Tool

Who: All employers

When: Effective December 2, 2020

What: The Equal Employment Opportunity Commission (EEOC) launched Explore, a new interactive data query tool that allows users to search U.S. 2017 and 2018 employee data by job category, sex, race/ethnicity, location, and industry. Underlying data comes from EEO-1 reports made by private employers with 100 or more employees or federal contractors with 50 or more employees. For 2018, the data represented approximately 56.1 million employees of 73,000 employers.

EEOC Explore was developed in collaboration with the University of Chicago as part of the EEOC’s Data and Analytics Modernization Program. The tool makes it easier for employers and the general public to analyze employment trends, specifically with regard to women and minorities.

How:

  • If you have 100 or more employees (or are a federal contractor with 50 or more employees), watch for updated information about when to file your 2019 EEO-1 form.

Additional Resources:

EEOC Explore Frequently Asked Questions (FAQs)

Executive and Judicial Branch

New Executive Order Limits Unfair Limits on Competition and Worker Mobility

Who: All employers

When: Effective immediately

What: On July 9, 2021, President Biden signed the “Executive Order on Promoting Competition in the American Economy,” which promotes fair and healthy competition in the United States. The Order describes more than 70 initiatives, including limits or bans on non-compete agreements, occupational licensing requirements, and other overly restrictive practices.

The Order describes the effects of narrowing competition and government inaction as having the effect of “widening racial, income, and wealth inequality.” Biden’s intention is to create more high-quality jobs, freedom to switch jobs and negotiate higher wages, higher profits for certain businesses, and more choices and lower prices for consumers.

The Executive Order provides for the creation of a White House Competition Council that will coordinate the multiple initiatives that impact healthcare, pharmaceuticals, technology, aviation, telecommunications, Internet service, transportation, agriculture, banking, and consumer finance, among other industries.

How:

  • Review your noncompete agreements and other restrictive covenants to ensure they are up to date and comply with current law.
  • In light of the new Executive Order, determine whether your noncompete agreements are narrowly focused to protect trade secrets and do not unnecessarily limit employee mobility.
  • Watch for Federal Trade Commission rules that govern noncompete agreements in the future.
  • Train all employees on any changes you make to your noncompete agreement policies and practices.

Additional Resources:

Executive Order on Promoting Competition in the American Economy

FACT SHEET: Executive Order on Promoting Competition in the American Economy

Remarks by President Biden At Signing of An Executive Order Promoting Competition in the American Economy

President Biden Withdraws EEOC Conciliation Reforms

Who: All employers

When: Effective immediately

What: On June 30, 2021, President Joseph Biden signed S.J. Res. 13, a resolution to withdraw the reforms the Trump administration made to the Equal Employment Opportunity Commission (EEOC) conciliation process. The Trump administration believed the changes they made improved transparency and the new process would provide relief to more victims faster.

The current administration said the reforms made it more difficult to hold employers accountable. They blamed “unnecessary and burdensome standards,” they said would delay justice for victims. Such standards included requiring the EEOC to:

  • Provide a statement of the facts it relied upon to find reasonable cause of discrimination;
  • State the criteria it would use to identify more victims; and
  • Disclose a detailed calculation of the damages they would assess.

How:

  • Adhere to the original EEOC conciliation process standards.
  • Work with legal counsel to draft your responses to the EEOC during an investigation to ensure they fully state your position and that the law  supports that position.

Additional Resources:

S.J. Res. 13

Juneteenth Declared a Federal Holiday

Who: All employers

When: Effective immediately

What: On June 17, 2021, President Joe Biden signed into law the Juneteenth National Independence Day Act, which makes June 19 an annual federal holiday. The day commemorates the end of slavery in the United States. The Emancipation Proclamation, signed by President Abraham Lincoln, became effective in 1863. News of the proclamation reached the enslaved in the state of Texas on June 19, 1865.

Federal employers must incorporate the federal holiday into their schedule for purposes of leave and pay. Private employers can choose whether to incorporate the holiday into their leave schedule.

How:

  • Update your policies and HR manual to account for the new federal holiday, as it applies to your organization.

Additional Resources:

S.475

President Biden Issues Executive Order to Increase Access to Health Care Insurance

Who: Federal agencies

When: Effective Immediately

What: On January 28, 2021, President Biden signed an Executive Order that requires federal agencies to review their policies on access to health care coverage. The Order states that there are still millions of uninsured and underinsured Americans, and in light of the COVID-19 public health emergency, federal agencies must make health insurance more accessible and affordable.

Biden directed agencies to review their policies related to pre-existing conditions, waivers, access to health insurance marketplaces, ease of enrollment, and affordability of coverage. In addition, policies that allow employers to reimburse employees for coverage that is not compliant with the Affordable Care Act (ACA) are under scrutiny.

The Executive Order directs the Department of Health and Human Services to reopen the HealthCare.gov marketplace to allow for a Special Enrollment Period (SEP) from February 15, 2021 through May 15, 2021. The SEP will give the previously uninsured and those who have lost health insurance during COVID-19 an opportunity to apply for coverage. The SEP is available to consumers through the HealthCare.gov platform in the 36 states that use it. Other states have the choice of making the SEP available through their own Health Insurance Marketplace® platforms.

How:

  • Continue to monitor for additional directives related to healthcare coverage.

Additional Resources:

Executive Order on Strengthening Medicaid and the Affordable Care Act

President Biden Rescinds “Combating Race and Sex Stereotyping” Executive Order; Expands Protections for Underserved

Who: Federal contractors and subcontractors and federal grant recipients

When: Effective immediately

What: On January 20, 2021, U.S. President Biden rescinded Executive Order (EO) 13950, “Combating Race and Sex Stereotyping,” which barred government contractors and federal grantees from providing certain types of diversity and inclusion training. To replace that EO, Biden issued EO 13985, “Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.”

Executive Order 13985 defines equity as “the consistent and systematic fair, just, and impartial treatment of all individuals, including individuals who belong to underserved communities, such as Black, Latino, Indigenous and Native American persons, Asian Americans and Pacific Islanders, and other persons of color; people identifying as lesbian, gay, bisexual, transgender and queer (LGBTQ); people with disabilities; religious minorities; persons who live in rural areas; and persons otherwise affected by persistent poverty or inequality.”

The Biden Administration also released a fact sheet calling for widespread change to support families during the COVID-19 pandemic, including a “Whole-of-Government Initiative to Advance Racial Equity” and an agenda that supports underserved populations.

“Underserved” includes the LGBTQ community. On that front, Biden issued the “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” Biden instructed the heads of federal agencies to review their orders, regulations, and guidance to determine if they “perpetuate system barriers to opportunities and benefits for people of color and other underserved groups.” Federal agencies must deliver a report within 200 days explaining how they will remove said barriers.

How:

  • Consider how aligned your diversity and inclusion policies and practices, including training, are with your organization’s goals. Update as needed.
  • Ensure that all employees are aware of your organization’s diversity and inclusion goals and policies, especially the company’s anti-harassment and anti-retaliation policies.

Additional Resources:

Executive Order 13985: Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government

Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation

Fact Sheet: President-elect Biden’s Day One Executive Actions Deliver Relief for Families Across America Amid Converging Crises

White House Freezes Issuance of Regulations

Who: All employers and federal agencies

When: Effective immediately

What: On January 20, 2021, White House Chief of Staff Ronald Klain issued a memorandum that freezes new and pending federal rules and regulations. The memo addresses the heads of federal executive departments and agencies and advises that the new, Biden-appointed leaders of those entities should “have the opportunity to review any new or pending rule.” The regulatory freeze gives the new White House leadership team time to review rules announced at the end of the Trump administration and withdraw them if they deem it necessary.

Agencies must immediately withdraw rules sent to but not yet published by the Office of the Federal Register and subject them to the review and approval process. The Chief of Staff encouraged the leaders responsible for new rules and regulations that have already been published by the Office of the Federal Register to delay their effective date and consider implementing a 30-day review period that would allow the public to comment.

Federal agencies should not propose any new rules or regulations at this time unless they affect critical health, safety, environmental, financial, or national security matters. Those rules are exempted from the directive, but the parties proposing them must notify the White House Office of Management Budget (OMB).

Pending rules under review include one that makes it easier to classify a worker as an independent contractor and one that requires tips to be shared with “back-of-the-house” restaurant workers.

How:

  • Wait to make any changes to your affected policies and procedures until the Biden Administration makes decisions about which pending rules they will publish and which ones they withdraw.
  • Watch for updates on labor and employment law.

Additional Resources:

Regulatory Freeze Pending Review Memo

DACA Program Reinstated

Who: All employers with DACA-status employees

When: Effective Immediately

What: On November 14, 2020, the United States District Court for the Eastern District of New York issued an order to restore the Deferred Action for Childhood Arrivals (DACA) program, effective December 7, 2020. As a result, the U.S. Citizenship and Immigration Services (USCIS) is again accepting applications for coverage under the program in accordance with the court order and the terms of the DACA policy in effect prior to September 5, 2017 as follows:

  • First-time requests for consideration of deferred action,
  • Renewal requests, and
  • Applications for advance parole documents (which allow for international travel and return to the U.S.).

USCIS is also extending one-year grants of deferred action under DACA to two years and extending one-year employment authorization documents under DACA to two years.

An applicant must meet several requirements in order to apply, including:

  • Was under age 31 on June 15, 2012;
  • Came to the U.S. prior to reaching age 16;
  • Remained continuously in the U.S. from June 15, 2007 to the present;
  • Entered the U.S. without inspection or legal status expired as of June 15, 2012;
  • Is currently in school, or graduated from high school, obtained a GED, enrolled in an accredited program to obtain a GED, or is in the military service;
  • Does not have a barring criminal record; and
  • Was at least age 15 on the day of filing, unless they have a final order of removal.

How:

  • Notify affected employees of their right to apply for an extension of employment authorization.

Additional Resources:

Update: Deferred Action for Childhood Arrivals (Press Release)

I-821D, Consideration of Deferred Action for Childhood Arrivals

Consideration of Deferred Action for Childhood Arrivals (DACA)

Federal Court Judge Issues Temporary Ban on Race and Sex Stereotyping Executive Order

Who: Federal contractors and subcontractors and federal grant recipients

When: Effective immediately

What: On December 22, 2020, a United States District Court for the Northern District of California issued a preliminary injunction on Executive Order 13950, “Combating Race and Sex Stereotyping.” The court concluded that the Order’s restrictions violate the Free Speech Clause of the First Amendment. The court also stated that the vague language of the Order violates the Due Process Clause of the Fifth Amendment because plaintiffs cannot “determine what conduct is prohibited.”

The injunction is a temporary ban. Litigation will continue in order to determine if the ban should be permanent or if the Order will be reinstated. The Biden administration may also choose to rescind the Order once in office.

The ruling means that affected parties are free to provide such training for the foreseeable future and may choose to revert to a previous version of their training materials. Parties who have ceased diversity and inclusion training in light of the Executive Order may choose to resume training. While the ban is in effect, contractors need not modify their contract language to accommodate the Executive Order.

How:

  • Watch for news of the current status of the Executive Order in order to maintain compliance.

Additional Resources:

Executive Order 13950 (Combating Race and Sex Stereotyping)

Office of Federal Contract Compliance Programs Executive Order 13950

Internal Revenue Service

Form 5500 Due July 31, 2021

Who: Employers who sponsor benefit plans

When: Effective immediately

What: Employers who sponsor benefit plans need to file the appropriate version of Form 5500 with the IRS by July 31, 2021. Benefit plans include health and welfare plans such as medical, dental, disability, and life insurance, as well as retirement and savings plans.

Employers with fewer than 100 participants file Form 5500-SF. Employers with one-participant plans with plan assets of more than $250,000 as of December 31, 2020, as well as foreign plans, file Form 5500-EZ. Employers who require an extension must file Form 5558, which extends the deadline until October 15, 2021.

The form satisfies the annual reporting requirements under Title I and Title IV of ERISA and under the Internal Revenue Code. The legislation is intended to ensure that employers operate and manage their employee benefit plans in accordance with prescribed standards and that all interested parties have access to sufficient information to protect their rights and benefits.

The Department of Labor can assess a penalty for missing the deadline of $2,259 per day with no maximum. The Internal Revenue Service can assess an additional penalty of up to $250 a day up to a maximum of $150,000. Late filers can apply for the Delinquent Filer Voluntary Compliance Program, which caps penalties.

How:

  • File the appropriate version of Form 5500 with the IRS by July 31, 2021.

Additional Resources:

Form 5500

Form 5558

Form 5500-SF

Department of Labor EFAST

PCORI Fee Due August 2

Who: Sponsors of self-insured health plans

When: Due by August 2, 2021

What: Issuers of specified health insurance policies and plan sponsors of applicable self-insured health plans must pay the annual fee that partially funds the Patient-Centered Outcomes Research Institute (PCORI) by August 2, 2021. The annual deadline is July 31, but that falls on a weekend this year, so the fee is due August 2.

Employers must report the fee, which was mandated by the Affordable Care Act, once a year on the second-quarter Form 720, Quarterly Federal Excise Tax Return. The fee is based on the average number of lives covered under the policy or plan. For plan years ending after September 30, 2020 and before October 1, 2021, the fee is $2.66 per covered life. For plan years ending after September 30, 2019 and before October 1, 2020, the fee per covered life is $2.54.

How:

  • File Form 720 and pay the fee by August 2, 2021.

Additional Resources:

Application of the Patient-Centered Outcomes Research Trust Fund Fee to Common Types of Health Coverage or Arrangements

Patient-Centered Outcomes Research Institute Fee

Patient-Centered Outcomes Research Trust Fund Fee (IRC 4375, 4376 and 4377): Questions and Answers

About Form 720, Quarterly Federal Excise Tax Return

Instructions for Form 720

Notice 2020-84

IRS Clarifies FSA Carryovers

Who: All employers

When: Effective immediately

What: On February 18, 2021, the Internal Revenue Service (IRS) released IRS Notice 2021-15, which clarifies how to apply the health flexible spending account (FSA) relief provisions contained in the Taxpayer Certainty and Disaster Relief Act. Employers now have the option to offer employees the option to roll over unused FSA benefits or contributions from 2020 to 2021 and from 2021 to 2022.

Employers who adopt the new, more flexible policy have to consider a number of factors related to the execution and administration of the change, such as:

  • Mid-year changes in employees’ 2021 contributions,
  • Extended grace periods,
  • Dependent care eligibility, and
  • Health FSA spend down.

What Should You Do?

Decide which FSA options you will offer and communicate the changes to employees.

Additional Resources:

IRS Notice 2021-15

Feb. 5: IRS Seeks Comments on COBRA Paperwork Burden

Who: All employers

When: Comments due by February 5, 2021

What: The Internal Revenue Code is seeking comment on certain COBRA-related information-collection requirements by February 5, 2021.

Current regulations require group health plans to provide notice to individuals who are entitled to elect continued coverage under COBRA (the Consolidated Omnibus Budget Reconciliation Act of 1985). COBRA also requires other notifications, including:

  • Covered individuals must notify the plan of:
    • A divorce from the covered employee,
    • A dependent child’s ceasing to be dependent, or
    • Disability in order to elect COBRA coverage.
  • When a qualified beneficiary’s COBRA premium payment is short by an insignificant amount, the plan must notify the individual if the plan does not wish to treat the shortage as a full payment.
  • When healthcare providers contact a plan to confirm coverage of a qualified beneficiary, the plan must disclose the qualified beneficiary’s complete rights to coverage.

The type of feedback the IRS is looking for includes ways to enhance the quality, utility, and clarity of information to be collected and how to minimize the burden on respondents. See the official notice for details.

How:

  • Submit comments at by February 5, 2021 to Kinna Brewington, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.

Additional Resources:

85 Fed. Reg. 78935

IRS Extends Deadline for Forms 1095-B and 1095-C to March 2, 2021

Who: All employers

When: Extended deadline is March 2, 2021

What: The Internal Revenue Service issued Notice 2020-76, which extends the deadline for Form 1095-B and Form 1095-C reporting from January 31, 2021, to March 2, 2021. Under the Affordable Care Act, health insurance issuers, self-insuring employers, government agencies, and other providers of minimum essential coverage must provide these information returns and statements about the health insurance coverage they provide to employees to the covered individuals and the IRS.

A penalty of $280 applies to each form not timely submitted to a covered individual or the IRS, for a potential total fine of $560 per form not timely submitted. This is the last year the IRS intends to extend the deadline for these forms.

How:

  • Provide Forms 1095-B and 1095-C to covered individuals and the IRS by March 2, 2021.

Additional Resources:

IRS Notice 2020-76

IRS Form 1095-B

IRS Form 1095-C

About Form 1095-B, Health Coverage

About Form 1095-C, Employer-Provided Health Insurance Offer and Coverage

Jan. 1: IRS Announces Maximum Contributions to FSAs and HSAs

Who: All employers

When: Effective January 1, 2021

What: The Internal Revenue Service announced new maximum contributions employees can make to health savings accounts (HSAs) and flexible spending arrangements (FSAs) through pre-tax salary reductions in 2021. Under a high-deductible plan, the contribution limit for individuals with self-only coverage is $3,600. For individuals with family coverage, it’s $7,200. The maximum contributions to a flexible spending arrangement stayed the same at $2,750.

How:

  • Communicate the new annual contribution limits to your employees.

Additional Resources:

IRS Revenue Procedure 2020-45

Jan. 1: IRS Releases Retirement Account Contribution Maximums for 2021

Who: All employers

When: Effective January 1, 2021

What: The Internal Revenue Code sets forth the dollar limitation on contributions and benefits related to qualified retirement plans. These limits are adjusted annually in accordance with cost-of-living allowances. For the most part, contribution limits remained the same.

In 2021, the overall contribution limit for 401(k) and similar plans increased from $57,000 to $58,000 in 2021. That $1,000 increase can be any combination of employer and employee contributions. The minimum compensation for simplified employee pensions (SEPs) increases from $600 to $650. In addition, the Saver’s Credit (or Retirement Savings Contribution Credit) increased for low- and moderate-income workers. The limit increased by $1,000 to $66,000 for married couples filing jointly; by $750 to $49,500 for heads of household; and by $500 to $33,000 for singles and married individuals filing separately.

How:

  • Consider communicating the details about contribution limits to your employees.
  • Determine whether you will increase contributions to your employees’ retirement accounts based on the new $58,000 maximum.

Additional Resources:

Income Ranges for Determining IRA Eligibility in 2021

IRS Notice 2020-79

National Labor and Review Board (NLRB)

NLRB Launches Spanish-Language Website and Twitter Accounts

Who: All employers with Spanish-speaking employees

When: Effective immediately

What: On March 31, 2021, the U.S. National Labor Relations Board (NLRB) launched a Spanish-language translation of its website. Spanish-speaking workers can use the site to access resources on their rights in the workplace, learn how to file a complaint, learn about the agency’s history, and request a speaker. The NLRB also created two Spanish-language Twitter accounts—one for NLRB news and decisions and one for news from the General Counsel’s office.

The NLRB Chairman Lauren McFerran and Acting General Counsel Peter Sung Ohr have committed to increasing outreach and accessibility for all workers, and the new site and Twitter accounts are part of that effort.

How:

  • Consider notifying Spanish-speaking employees of the new website and Twitter accounts.

Additional Resources:

@NLRBes Twitter Account (Spanish)

@NLBRGCes Twitter Account (Spanish)

NLRB Website (Spanish)

NLRB Launches New Spanish Website and Twitter Accounts, Reaffirms Commitment to Outreach (Press Release)

OSHA

By April 19, 2021: OSHA Accepting Comments on Proposed Changes to Hazardous Communication Standard

Who: All employers

When: Comments due April 19, 2021

What: The Occupational Safety and Health Administration (OSHA) is accepting comments on a proposed rule that would lead to required changes on labels and safety data sheets (SDSs) for hazardous chemicals. The intention of the proposed rule is to align label and SDS data with the Globally Harmonized System of Classification and Labeling of Chemicals, Revision 7 and 8.

OSHA says the change will reflect the current state of science and knowledge, promote cooperation with international trading partners and U.S. federal agencies, and address stakeholders’ experiences with implementation of the current Hazardous Communication Standard (HCS).

The changes would:

  • Codify enforcement policies;
  • Clarify requirements for transporting hazardous chemicals;
  • Add new categories for flammable gases, aerosols, and desensitized explosives;
  • Provide for disclosure of the concentration range of a chemical in a mixture;
  • Require that certain information be on the SDS even when not on the label;
  • Clarify that the HCS includes all hazardous chemical and Hazards Not Otherwise Classified; and
  • Add labeling options for certain small containers.

OSHA says the changes would enable employers to identify the most hazardous materials in the workplace and promote better understanding—by employers and employees—of the effects of the chemicals.

How:

  • Submit comments on the proposed rule (Docket No. OSHA-2019-0001) electronically at regulations.gov by April 19, 2021.

Additional Resources:

Proposed Rule: Hazard Communication Standard

Redline Comparison of Existing and Proposed Rule

OSHA Waives Requirement to Post Form 300A

Who: Covered employers that are closed due to COVID-19

When: Effective immediately

What: OSHA announced that it is waiving the requirement for covered employers to post Form 300A if there are no workers on the job site on February 1, 2021, due to COVID-19. The waiver applies to the time period of February 1, 2021, to April 30, 2021, as long as the establishment remains empty. If employers reopen before May 1, 2021, they must post Form 300A.

How:

  • If you reopen your jobsite before May 1, 2021, post the Form 300A.

Additional Resources:

Injury & Illness Recordkeeping Forms – 300, 300A, 301

Submit OSHA Injury and Illness Summary Electronically by March 2

Who: Covered employers with 20 or more employees

When: Due March 2, 2021

What: Employers covered by the OSHA recordkeeping rule must submit their 2020 work-related injuries and illnesses (Form 300A) electronically by March 2, 2021. Affected employers are those with 20 to 249 employees in certain higher-risk industries and all employers with 250 or more employees, unless specifically exempted.

How:

  • Consider consulting legal counsel to ensure accurate recording and reporting of COVID-19 cases.
  • Submit your OSHA Form 300A electronically to by March 2, 2021. See OSHA’s Injury Tracking Application page for instructions on how to establish an account and add 300A summary data.

Additional Resources:

Injury Tracking Application

OSHA Injury and Illness Recordkeeping and Reporting Requirements

Injury & Illness Recordkeeping Forms – 300, 300A, 301

Establishments in the following industries with 20 to 249 employees must submit injury and illness summary (Form 300A) data to OSHA electronically

Non-Mandatory Appendix A to Subpart B — Partially Exempt Industries

Feb. 1 to April 30: OSHA Summary of Injuries and Illnesses Must Be Posted

Read more from the KPA blog about OSHA Form 300A reporting for 2020 data.

Who: OSHA-covered employers with more than 10 employees

When: Effective February 1, 2021

What: From February 1, 2021 to April 30, 2021, employers covered by the OSHA recordkeeping rule must post a summary of 2020 work-related injuries and illnesses (Form 300A) in a conspicuous place. Form 300A must not be changed, defaced, or covered from view.  The purpose is to help employers, employees, and workers evaluate the safety of a workplace and how to prevent injuries and illnesses in the future.

How:

  • Post your OSHA Form 300A in a conspicuous place from February 1 to April 30.

Additional Resources:

OSHA Injury and Illness Recordkeeping and Reporting Requirements

Injury & Illness Recordkeeping Forms – 300, 300A, 301

OSHA Reporting Deadlines Are Coming Up-Are You Ready?

Annual Revision to OSHA Civil Penalties

Who: All employers

When: Effective immediately

What: The DOL announced new penalties in civil OSHA cases to adjust for cost-of-living inflation, effective January 15, 2021. The purpose of the annual adjustment is to ensure the penalties are effective as a deterrent.

The maximum penalty for serious and other-than-serious violations increases from $13,494 per violation to $13,653 per violation. The maximum penalty for willful or repeated violations increases from $134,937 per violation to $136,532 per violation.

How:

  • States with their own Occupational Safety and Health Plans must match their maximum penalty levels to the new federal levels.

Additional Resources:

Final Rule

Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2021

U.S. Department of Labor Announces Annual Adjustments to OSHA Civil Penalties (Press Release)

OSHA Penalties

Social Security Administration

Jan. 1: Social Security Administration Announces Wage Cap and Benefits Increase for OASDI in 2021

Who: All employers

When: Effective January 1, 2021

What: Beginning January 1, 2021, an employee’s earnings subject to the Old-Age, Survivors, and Disability Insurance (OASDI) tax increases to $142,800 from $137,700 in 2020—an increase of 3.7%. The taxable amount—called the contribution and benefit base—changes each year in accordance with the national average wage index.

The Social Security Administration also announced an increase in benefits of 1.3% to all retired workers starting in 2021. The 1.3% is a cost-of-living adjustment based on an increase in the Consumer Price Index from third quarter 2019 through third quarter 2020.

How:

  • Work with your payroll personnel or third-party payroll administrator to ensure proper withholding of OASDI tax based on the new wage cap.

Additional Resources:

Social Security Contribution and Benefit Base

Social Security Fact Sheet for Changes in 2021

SSA Press Release for 2021 Changes

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