Category Archives: employers

My Employee is Subject to a “Shelter-in-Place” Order – What Do I Do Now?

Contributed by Carlos Arévalo, March 20, 2020

As we continue to grapple with the impact of the COVID-19 pandemic, and with potentially more drastic measures being imposed by health officials, the question becomes what is the impact on employers if a shelter-in-place order is issued. The answer:  it depends on the order.

In response to the crisis, a number of states, counties and cities have imposed or are considering shelter-in-place orders. Generally, a shelter-in-place order means that individuals must stay in their residences and not leave “unless necessary for one of the designated exceptions.” The purpose of such orders is to contain the spread of the virus by minimizing interaction between individuals to only those activities that are absolutely necessary.  Such orders, as adopted or under consideration by various jurisdictions, do not appear to compel full out seclusion and isolation or to prohibit the public from venturing outside their homes. The City of San Francisco, on March 16, 2020, issued the first shelter-in-place order. California, in the first state-wide measure, followed suit last night extending local measures to its 40 million residents. A similar measure was also adopted last night in Pennsylvania where Governor Tom Wolf announced that all but “life sustaining” businesses in the state were ordered to shut down (Pennsylvania’s measure does contain a very specific list of affected businesses by industry and sector). While the terms of such orders will vary, they contain exceptions for “essential services” impacting a number of critical infrastructure sectors.

By way of illustration, the City of San Francisco’s measure had health officials issue an order that generally directed the public to stay in their homes except for the following:

1.      To provide or receive essential services;

2.      To engage in essential activities; and

3.      To work in essential businesses and government services.

Measures that followed elsewhere similarly include terms like “essential services”, “essential activities” and/or “essential business and government services.”  These terms are specifically defined and must be reviewed to determine whether or not your employees will be able to make it to work. In the San Francisco order “essential activities” incorporate activities or tasks essential to health and safety. Examples of this include going to the doctor, buying food or medicine, obtaining supplies to work from home, or performing work for “essential businesses” that provide “essential services.”  “Essential businesses” include health care providers, grocery stores or other food producing/retail establishments (restaurants are generally limited to take out/curb side), gas stations, banks, and even professional services that support the legally mandated activities of essential businesses. Certainly, protective services and first responders are also engaged in essential services so they are not going to be limited. Finally, orders also address “essential travel”, which generally consists of going to/coming from work, the doctor, or any destination where essential services will be procured.

Bottom line, individuals should be able to go to work provided their employers are engaged in an essential business or government service or in support of such businesses or services. While “shelter-in-place” orders may differ from one jurisdiction to another and may be more restrictive depending on your location, the objective is still containment of the virus. Thus, your employees should be able to come to work, go home at the end of the day and even stop at the store for groceries or other essentials.  But they will not be able to go out to dinner, hang out at a bar for drinks or engage in any entertainment or social activities with lots of people around them. 

As with all matters involving COVID-19, this is a fluid situation with frequent, if not daily, developments. These may involve not just “shelter-in-place” orders, but other health official directives that must be carefully reviewed to ensure compliance. We will continue to monitor and update as needed.

COVID-19 Webinar Series: The Latest Local, State and Federal Mandates Impacting the Workplace

What the W-4 is that? Answers to Your Questions about the New W-4

Contributed by Michael Wong, January 8, 2020

The process of filling out the W-4 form, shallow depth of field

Following the 2017 Tax Cuts and Jobs Act, which made major changes affecting taxpayer withholding, the IRS announced it would be redesigning Form W-4. The new W-4 has officially been released, creating confusion and questions (at the time of this article the new federal 2020 W-4 can be found on the IRS website).

First and foremost, employers do NOT need to get all employees to sign a new W-4. According to IRS Publication 15, employers are to remind employees before December 1 each year to submit a new W-4 form if their withholding allowances have changed or will change for the next year. If the employee does not submit a new W-4 form, the company must continue to withhold taxes pursuant to the last valid W-4 that was provided. If the employee has not ever submitted a valid W-4, the company must withhold tax as if the employee is single with no other adjustments.

So, again, just because there is a new W-4 form (that looks drastically different), you do not have to have all of your current employees fill out a new W-4. A W-4 previously filled out by an employee will continue to be good until the employee decides to change their withholdings. The only exception is employees who claim to be exempt from any withholdings (i.e. no taxes withheld at all from wages). As addressed below, employees must complete a new W-4 annually to maintain a full exemption

Employers should ensure that new W-4s are used as follows:

  • New employees. All new employees hired or paid in 2020 are required to use the current year’s W-4 form and applicable state W-4. 
  • Employees who want to change their withholdings. Life can sometimes change quickly, if something happens during the year and an employee wants to change his or her exemptions, adjustments, withholdings or credits, the employee will need to fill out a the new W-4 form and applicable state W-4.  Note, an employee is permitted to complete a W-4 anytime, not only when a major life event happens — this could be as simple as the employee realizing that instead of getting a refund, he or she wants to stop providing an interest free loan to the government.
  • Employees claiming exemption from withholding. All W-4s claiming an individual is exempt from any taxes being withheld expire on February 16th each year. This means, that any employee claiming to be exempt from withholdings, should be reminded to turn in a new W-4 (using the new form) by February 15th and advised that if they do not submit a new W-4, you are required to withhold taxes based on the last W-4 in which the employee did not claim to be exempt or, if the employee has always claimed a complete exemption, the employee will be treated as being single with no other adjustments.

To help employees (and you) the IRS has created an Estimator to help employees determine what they should put on their W-4 at www.irs.gov/W4App

Finally, W-4s have to be filled out for all non-U.S. Citizens (“Aliens”). Resident Aliens should be treated the same as U.S. Citizens when filling out the new W-4. Nonresident aliens should be provided the Supplemental Form W-4 Instructions for Nonresident Aliens, which provides:

  • Non-Resident Aliens cannot claim they are exempt from income tax withholding;
  • Non-Resident Aliens must request withholding as if they are “Single”, even if he or she is married;
  • Nonresident Aliens must still provide a SSN, they cannot enter an ITIN on Line 2.
  • Only certain nonresident aliens who are residents of Canada, Mexico, South Korea, or India may be eligible to claim an additional allowance for the child tax credit. To claim the child tax credit your child must have an SSN valid for employment issued prior to the due date of your tax return (including extensions).
  • Write “Nonresident Alien” or “NRA” in the space below Step 4(c) of Form W-4.

So, while the changes in the tax code and W-4 are championed as creating more transparency and simplifying the accuracy and simplicity of the W-4 form, as with all change it will initially create more confusion and panic, just like Y2K. But don’t worry, 2020 is just the beginning to another new decade.

2020: AN HR ODYSSEY – ILLINOIS ENACTS THE ARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACT

Contributed by Michael J. Faley, November 26, 2019

AI conceptual in business technology, artificial inteligence concept

In Stanley Kubrick’s 1968 epic 2001: A Space Odyssey, HAL 9000, a fictional artificial intelligence machine, helps guide a space mission to Jupiter, but through the course of the film is revealed to be a villainous presence. Fast forward 50 years and, although artificial intelligence (AI) has yet to lead a crew of astronauts to Jupiter, AI now pervades our lives in many seen and unseen ways, including employment recruiting. For example, AI commonly helps companies sort through voluminous resumes to identify qualified candidates. By some estimates, roughly 40 percent of employers have included AI in the hiring process.

Most recently, AI “interview bots” have become a popular tool in HR departments. They utilize different algorithms and methods to evaluate a candidate’s facial expressions, body language, word choice and tone among other factors to create a candidate profile or provide feedback to the employer. While HAL has not reached the workplace just yet, AI interview bots have raised some concerns particularly in Illinois.                      

Effective January 1, 2020, Illinois will regulate AI interviewing programs through the first-of-its-kind Artificial Intelligence Video Interview Act, 820 ILCS 42/5. An employer that asks applicants to record video interviews and uses AI analysis when considering applicants for positions based in Illinois must take steps before asking applicants to submit to the video interviews. The employer must:

(1) Notify each applicant before the interview that AI may be used to analyze the applicant’s video interview and consider the applicant’s fitness for the position.

(2) Provide each applicant with information before the interview explaining how the AI works and what general types of characteristics it uses to evaluate applicants.

(3) Obtain, before the interview, consent from the applicant to be evaluated by the AI program.

An employer may not use AI to evaluate applicants who have not consented to the use of AI analysis and may only share a video interview with persons whose expertise or technology are necessary to assess the applicant’s fitness for a position. The video interview also must be destroyed within 30 days upon request of the applicant. However, the new law leaves some questions unanswered, including what exactly qualifies as AI and what are the specific consequences for a violation.

Illinois has emerged as something of a leader in workplace technology laws, now regulating both AI and the use of employee biometric information. It is perhaps appropriate given HAL’s fictional creation at the University of Illinois. Illinois employers that utilize these technologies in the workplace need to stay attuned to the recent regulatory developments before they create very real legal headaches.      

BREAKING NEWS: Illinois Recreational Cannabis Law Protections for Employers & the Workplace Clarified!

Contributed by Jeffrey A. Risch, November 15, 2019As Illinois set out to become the first state to legalize recreational cannabis through statutory authority, the legislative intent for protections for employers and the workplace were intended to include some of the strongest in the nation. However, when the dust settled and the statutory framework was analyzed, there appeared to be room for reasonable minds to have differing opinions on what the law actually meant for the workplace.

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clipboard and pen.

On one hand, could employers lawfully implement reasonable, non-discriminatory drug testing policies aimed at prohibiting applicants and employees from lawfully using recreational cannabis and gaining or maintaining employment? On the other hand, would employers be violating the law if they did not hire someone who tested positive for THC or if they could not ultimately demonstrate that an employee was actually impaired while on the job? These sorts of questions lingered. A quick online search trying to find answers would only frustrate HR professionals, safety managers, and business owners further. Clarity was needed.Therefore, through the efforts of several business groups and trade associations (including the Illinois Chamber of Commerce) working across both political aisles, SB1557 passed the Illinois General Assembly on November 14, 2019. While SB1557 includes wrinkles for the licensing, manufacturing and distribution of recreational cannabis in Illinois, it also contains language found below designed to protect employers from litigation.In essence, the language attempts to clear up concern that an employer may have been required to show actual impairment in the workplace vs. simply being able to implement and follow a reasonable, non-discriminatory drug testing policy.   Specifically, Section 10-50 of the law will now read as follows (changes in bold):

(410 ILCS 705/10-50) Sec. 10-50. Employment; employer liability.(a) Nothing in this Act shall prohibit an employer from adopting reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.(b) Nothing in this Act shall require an employer to permit an employee to be under the influence of or use cannabis in the employer’s workplace or while performing the employee’s job duties or while on call.(c) Nothing in this Act shall limit or prevent an employer from disciplining an employee or terminating employment of an employee for violating an employer’s employment policies or workplace drug policy.(d) An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others. If an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.(e) Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for:

  1. actions taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test; , including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing under the employer’s workplace drug policy, including an employee’s refusal to be tested or to cooperate in testing procedures or disciplining or termination of employment;actions based on the employer’s good faith belief that an employee used or possessed cannabis in the employer’s workplace or while performing the employee’s job duties or while on call in violation of the employer’s employment policies;actions, including discipline or termination of employment, based on the employer’s good faith belief that an employee was impaired as a result of the use of cannabis, or under the influence of cannabis, while at the employer’s workplace or while performing the employee’s job duties or while on call in violation of the employer’s workplace drug policy; orinjury, loss, or liability to a third party if the employer neither knew nor had reason to know that the employee was impaired.

(f) Nothing in this Act shall be construed to enhance or diminish protections afforded by any other law, including but not limited to the Compassionate Use of Medical Cannabis Pilot Program Act or the Opioid Alternative Pilot Program.(g) Nothing in this Act shall be construed to interfere with any federal, state, or local restrictions on employment including, but not limited to, the United States Department of Transportation regulation 49 CFR 40.151(e) or impact an employer’s ability to comply with federal or state law or cause it to lose a federal or state contract or funding.(h) As used in this Section, “workplace” means the employer’s premises, including any building, real property, and parking area under the control of the employer or area used by an employee while in the performance of the employee’s job duties, and vehicles, whether leased, rented, or owned. “Workplace” may be further defined by the employer’s written employment policy, provided that the policy is consistent with this Section.(i) For purposes of this Section, an employee is deemed “on call” when such employee is scheduled with at least 24 hours’ notice by his or her employer to be on standby or otherwise responsible for performing tasks related to his or her employment either at the employer’s premises or other previously designated location by his or her employer or supervisor to perform a work-related task.

Additionally, much needed clarification for public employers was also included concerning how off duty use of cannabis by certain emergency personnel should be administered. The following was added to Section 10-35. Limitations and penalties:

(410 ILCS 705/10-35)(8) the use of cannabis by a law enforcement officer, corrections officer, probation officer, or firefighter while on duty; nothing in this Act prevents a public employer of law enforcement officers, corrections officers, probation officers, paramedics, or firefighters from prohibiting or taking disciplinary action for the consumption, possession, sales, purchase, or delivery of cannabis or cannabis-infused substances while on or off duty, unless provided for in the employer’s policies. However, an employer may not take adverse employment action against an employee based solely on the lawful possession or consumption of cannabis or cannabis-infused substances by members of the employee’s household. To the extent that this Section conflicts with any applicable collective bargaining agreement, the provisions of the collective bargaining agreement shall prevail. Further, nothing in this Act shall be construed to limit in any way the right to collectively bargain over the subject matters contained in this Act;

These changes help to better assure employers that they have the ability to implement fair, reasonable drug testing policies designed to protect their employees and the public. Recreational consumers will certainly have the legal right to use cannabis, but the employer should have the legal right to say “you better not have THC in your system to become or remain employed here.” Of course, any drug testing policy must be carefully vetted, designed, and implemented. After all, lawyers will be lawyers. 

While many questions still remain and medicinal usage requires a different analysis (for now) it appears employers can take better comfort and be more confident in creating policy designed to maintain a safe and healthy workplace through reasonable drug testing policies. However, employers must continue to carefully examine their own unique industry, risks and risk tolerances, together with their geographic footprint and applicant pool. The drug testing policy and drug-free workplace program for the “widget manufacturer” in Peoria is likely to be vastly different than that of the “accounting firm” in Schaumburg.

Navigating the Legal Risks of a Mandatory Vaccine Program for Employees

Contributed by Allison P. Sues, November 12, 2019

yellow triangle warning sign, Caution – Flu Season Ahead

Flu season is here and that likely means employers can hear sneezing and sniffling up and down the hallways at work.  Sick employees are less productive and their absences can disrupt an employer’s operations.  Worse still, sick employees may come into work and spread an illness to coworkers, exacerbating the problem.  According to the U.S. Center for Disease Control (CDC), recent studies show that flu vaccinations reduce the risk of flu by between 40 and 60 percent.  Given this, employers may wish they could mandate that all employees receive a flu vaccination.  But can they?

For those employers outside the healthcare field, the answer is probably not.  The Americans with Disabilities Act (ADA) allows employers to submit their employees to certain health screenings and inquiries depending on what point in the stage of employment the screening or inquiry takes place.  Per the federal regulations supplementing the ADA, employers are generally prohibited from asking any disability-related questions or requesting any medical exams before a conditional offer of employment is extended to the applicant.  Once an offer of employment is made, an employer may require a medical examination if the same examination is used for all entering employees in that job category.  If an employer uses certain criteria from these examinations to screen out employees, those criteria must be job-related and consistent with business necessity. 

As for current employees, the ADA generally prohibits employers from mandating that employees receive any medical testing or vaccinations unless they are job-related, consistent with business necessity, and no more intrusive than necessary.  This is a very difficult standard to meet unless the employer is part of the healthcare field or otherwise requires employees to regularly interact with immune-compromised clients, patients, or customers.

But there are several practices that employers can take to encourage employees to receive vaccines short of job-contingent mandates.  Employees are more likely to get vaccinated if it is easy and affordable to do so.  Employers may want to subsidize the cost of vaccines, allow paid time off to go get vaccines, or offer vaccines at the workplace to reduce any inconvenience. 

As for employers in the healthcare field, courts have repeatedly upheld an employer’s right to require that employees receive vaccinations if they work directly with patients – such as a nurse, doctor, or patient care assistant – or if they handle materials that could spread infection – such as a lab technician. The CDC recommends that these healthcare workers receive vaccinations for hepatitis B, flu, measles, mumps, rubella, chickenpox, tetanus, diphtheria, pertussis, and meningococcal diseases. 

Mandating vaccines, even in the healthcare field, is not without legal risks of which employers should be aware. The U.S. Equal Employment Opportunity Commission takes the position that healthcare employers must consider exemptions for those employees who cannot receive vaccines for reasons related to disability, pregnancy, or religion. Employers should analyze each request for exemption on a case-by-case basis, including review of the employee’s job position, as well as the employee’s particular religious belief or medical documentation corroborating the disability at issue. 

For employees who object to vaccines based on religious grounds, employers should first determine if the employee sincerely holds the religious belief.  Courts do not overly scrutinize this question.  While the belief cannot be social, political, or personal to qualify as a sincerely-held religious belief, courts cast a fairly wide net as to what religious-based beliefs will provide protection under Title VII.  The religious belief may be newly adopted, inconsistently observed, not part of a formal church or sect’s religious practice, or different from the commonly followed tenants of the individual’s religion.  As an example of the broad interpretation of sincerely-held religious beliefs, courts have determined that veganism may constitute a religion where an employee protests receiving a vaccine containing animal products, such as eggs.

For employees who seek an exemption from mandatory vaccines based on their disabilities, the employer may ask for medical documentation corroborating the disability. Some examples of disabilities that may preclude employees from receiving certain vaccinations include life-threatening allergies, diseases that compromise the employee’s immune system, or – in the case of a recent Third Circuit Court of Appeals case – a severe and well-documented anxiety associated with the side effects of receiving vaccines.

Once an employer determines that an employee is objecting to a mandatory vaccine based on a sincerely-held religious belief or documented disability, the employer must determine whether allowing the employee an exemption from the vaccine creates an undue burden on the organization.  For exemptions based on disabilities, the employer may also similarly consider if the exemption would create a direct threat to the employee, his or her coworkers, or the organization’s patients.  This inquiry is often directly related to the employee’s position.  While it may be feasible to exempt a hospital billing clerk from mandatory vaccines, the same is likely not true for a pediatric nurse working with young patients who are particularly vulnerable in the NICU. 

The employer should also consider if there are alternatives that could sufficiently protect the employee and patients short of requiring the vaccine, whether it be requiring the employee to wear a mask or transferring the employee to a position with less patient contact.  If the employer determines that exempting the employee will create an undue burden, it can require the vaccine as a condition of further employment, but this decision should be documented with a clear explanation as to why the vaccine is job-related, no more intrusive than necessary and consistent with business necessity.  The employer must also monitor and ensure that it conducts the exemption consideration and decision process consistently for all employees.

The key to handling requests for exemptions is to ensure that the consideration focuses on the specific concerns of the particular employee and encompasses an open and back-and-forth dialogue with the employee.  Sometimes learning more about the employee’s specific concerns will lead to a solution.  For example, an employee objecting to a vaccine on religious grounds because the vaccine contains animal cells may be willing to accept an alternative version of the vaccination that does not contain the offending material. 

Avoiding Holiday Pitfalls in the Workplace: Religious Accommodations

Contributed by Brian Wacker, October 23, 2019

The holiday season is fast approaching. What should be a joyful time filled with family, friends and festivities is all too often the opposite for employers: a season filled with legal and logistical challenges with their employees. 

Vacation, holiday and leave on paper note stick on the calendar of December for year end holidays concept

One of these potential challenges is the employer’s legal obligation to accommodate employees’ sincerely-held religious beliefs. Title VII of the Civil Rights Act of 1964, as well as various state legislation such as the Illinois Human Rights Act and the Missouri Human Rights Act, prohibits employment discrimination based on religion. Generally speaking, this means that employers must reasonably accommodate an employee’s sincerely held religious beliefs unless doing so would impose an undue hardship on the employer. 

So what is a “sincerely held belief” and what constitutes a “reasonable accommodation?”  Unfortunately, the answer can often be as clear as eggnog.

For purposes of Title VII and state legislation, the term “religion” is defined broadly.  It includes “all aspects of religious observance and practice, as well as belief,” which courts and the EEOC have interpreted to include not only traditional religions like Christianity, Judaism or Islam, but also religions that are “new, uncommon, nor part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical and unreasonable to others.”  In other words, so long as the employee has articulated a belief in a religion concerning “ultimate ideas” about “life, purpose and death,” courts will find that the belief is religious meriting protection.  And employers should note that this does not only apply to traditional practices of religion; rather, it can also extend to religious dress or grooming based on religious beliefs or practices.

So that employee who seeks an accommodation based on her practice of Satanism?  If she has a sincerely held belief in it, she must be reasonably accommodated. Whether a belief is “sincerely held” can be a tough question to resolve, especially when an employer has suspicion that the request for accommodation is not made in good faith, or when the employee has behaved in the past in a manner markedly different from the professed belief. However, employers should be cautious in making such a determination and not assume that a belief is insincere just because some of the employee’s practices deviate from commonly followed tenets of the religion.

What makes a hardship for an employer “undue?” 

Basically, a hardship is undue if it can be shown that the accommodation would impose “more than a de minimis cost” on the operation of the employer’s business. While this will necessarily be a case-by-case determination, employers should consider the type of workplace involved, the nature of the employee’s duties, the identifiable costs of the accommodation in relation to the employer’s size and the effect the accommodation will have on other employees. If a religious practice will conflict with security or safety requirements, it likely will not need to be accommodated, unless the security or safety requirement is a unilaterally-imposed requirement by the employer and it could be reasonably modified or eliminated.

For far too many employers these days, the holidays bring about more headaches than anything.  Staying up to date on issues, such as religious accommodation requirements, can help you avoid the holiday blues.