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Florida Passes Legislation Banning Vaccine Mandates: What Employers Need to Know

November 19 - Posted at 8:24 AM Tagged: , , , , , , , ,

During a special legislative session, Florida just passed a new law banning private employers from mandating COVID-19 vaccines unless several exemptions are offered to employees. The law, signed by the governor on 11/18/21, comes as OSHA’s national emergency temporary standard mandating vaccines is embroiled in legal challenges. What do Florida employers need to know about this new law, which takes effect immediately?

Who is Covered and What Does It Do?

The law applies to all private employers in Florida, regardless of size. It prohibits those employers from requiring employees to get vaccinated against COVID-19 unless various exemptions are offered.

What are the Exemptions?

Some of the exemptions in the new law will sound familiar to employers. Others are unique. If an employer receives a statement from an employee (as described below), they must allow the employee to opt-out of the vaccine mandate. The Department of Health will be creating template forms for each of these exemptions.

  1. Medical Reasons

    This includes for reasons of pregnancy or anticipated pregnancy. To receive a medical exemption, an employee must submit a signed statement by a physician or physician assistant that vaccination is not in the best interest of the employee. While not addressed in the legislation, we suspect that this exemption will function similarly to those provided for disabilities under the Americans with Disabilities Act (ADA).

  2. Religious Reasons

    An employee must present a statement that they decline the vaccine because of a “sincerely held religious belief.” Although that term is undefined, it likely refers to sincerely held religious beliefs as understood under federal lawA.

  3. COVID-19 “Immunity”

    An employee must show “competent medical evidence” that they have immunity to COVID-19, which is documented by the results of laboratory testing on the employee. The law does not state what “immunity” is but directs the Department of Health to establish a standard for determining that immunity.

  4. Periodic Testing

    An employee must provide a statement indicating that they will comply with the employer’s requirement to submit to regular testing. Although “regular testing” is not defined, the law directs the Department of Health to adopt emergency rules specifying requirements for frequency of testing. Importantly, any testing must be at no-cost to the employee.

    Because this exemption has no ties to existing federal law such as Title VII and the ADA, and the law does not address any “undue hardship” defense, it is likely that an employer cannot decline to pay for the testing if there is a charge the employee would otherwise incur.

  5. Agreement to Use PPE

    An employee must present a statement that they agree to comply with the employer’s reasonable written requirement to use employer-provided personal protective equipment when around others. “Personal protective equipment” is not defined. It is unclear whether the use of the term would implicate OSHA regulations or CDC guidance on “personal protective equipment.”

But What About Federal Law?

The CMS Rule and Federal Contractor vaccine mandate requirements, which both require that covered staff be vaccinated and only allow for exemptions for medical conditions (ADA) and sincerely held religious beliefs (Title VII), should preempt this Florida law to the extent the laws directly conflict. The CMS Rule explicitly provides that it preempts state and local laws.

If OSHA’s ETS survives in the courts, it is likely that Florida’s new law will conflict with the OSHA ETS at least in so far as an employer (with 100 or more employees) might want to implement a mandatory vaccination policy instead of allowing employees to choose to be vaccinated or undergo weekly testing. However, the scope of that conflict is unknown and will depend on the final terms of the ETS if it survives.

How is the Law Going to be Enforced?

Florida’s vaccine mandate law will be enforced by the Department of Legal Affairs, in the Attorney General’s office. Employees can file complaints that an exemption was not offered or was improperly applied or denied, which will then be investigated. If the Department finds a violation, it must notify the employer of its determination and allow the employer the opportunity to cure the noncompliance. If the Department finds that an employee was improperly terminated and the employer does not restore the employee to their position with back pay, then the Department may fine the employer up to $50,000, depending on employer size and other factors. Employees who are wrongfully terminated may also be entitled to unemployment benefits. The Department of Legal Affairs will be issuing rules to further flesh out the complaint and investigation process.

What We Don’t Know Yet

There are many unanswered questions. For example, the new law does not address workers’ compensation claims and remains an open question whether an employee’s side effects to a mandated vaccine is covered by workers’ compensation.

What About Public Employers or Schools?

The legislature also passed statutes banning vaccine mandates for public employees and prohibiting any public educational institution or elected or appointed local official from imposing a COVID-19 vaccination mandate for any student. Unlike private sector employers, public sector employers are prohibited from mandating the vaccine — even if they offer the enumerated exemptions.

There are also provisions prohibiting public schools from requiring a student to wear a face mask, a face shield, or any other facial covering. Instead, such issues are left to the parent’s sole discretion. Further, the law prohibits public schools from barring any student or employee from school or school-sponsored activities or subjecting them to other disparate treatment based on an exposure to COVID-19, so long as the student or employee remains asymptomatic and has not received a positive test for COVID-19.

What Employers Can Do

Importantly, the law is not an outright prohibition on vaccine mandates. Private employers can still have a vaccine mandate, so long as you offer the various exemptions discussed above.

Neither does the law prohibit employers from “stacking” their COVID-19 prevention and mitigation efforts. Meaning, for example, you likely can still require both use of PPE and regular testing in order to protect its workforce. In other words, the statute is a ban on vaccine mandates without certain opt-out accommodations, but it is not a ban on your organization opting to require testing and/or continued use of PPE.

It is worth noting that this new law does not address employers’ immunity against COVID-19 claims. In March 2020, Florida passed a law granting businesses immunity from COVID-19 claims. Absent any more specific legislation, if an employer meets the standards of the immunity law (specifically, demonstrating good faith effort to comply with government-issued health guidance), the language of the immunity law is clear that the employer is immune from civil liability. This new law does not affect that.

You should also keep an eye out for the implementing rules to be issued by the various state agencies. According to the statute, such rulemaking must occur initially by filing emergency rules within 15 days after the effective date of the statute, followed by regular rulemaking thereafter. For the next 15 days (unless the Department of Health files its emergency rules earlier), employer COVID-19 vaccination mandates are deemed invalid under this statute.

What’s Next?

This new law is yet another issue facing employers, who are increasingly confronting a myriad of conflicting orders at the state and federal levels. Unfortunately, the issue of COVID-19 vaccines in the workplace remains incredibly fluid and will surely continue to evolve through the holiday season. As always, we will continue to monitor the situation regarding employers’ vaccine mandates and provide updates as warranted. 

IRS Issues New Form W-4 and Updates Tax Withholding Calculator

March 16 - Posted at 1:00 PM Tagged: , , , , , , , , , ,
At the close of February, the IRS released an updated tax withholding calculator on IRS.gov and issued a new Form W-4 Employee’s Withholding Allowance Certificate.Employees can use the online calculator to check their 2018 tax withholding following passage of the Tax Cuts and Jobs Act in December 2017. If employees choose to adjust their withholding, they can now complete and submit the revised Form W-4 to their employer.

The IRS also posted new Withholding Calculator Frequently Asked Questions.

The IRS encourages employees to check their paychecks to help ensure they’re having the right amount of tax withheld for their personal situation. The Tax Cuts and Jobs Act made changes to the tax law, including increasing the standard deduction, removing personal exemptions, increasing the child tax credit, limiting or discontinuing certain deductions, and changing the tax rates and income brackets.

The IRS is not requiring employers to obtain new W-4s from their employees, as it revised the withholding tables to function with the old W-4 for 2018.  However, businesses should notify employees that using the withholding calculator at IRS.gov and, if necessary, submitting the new form W-4 to their payroll department may result in more accurate withholding for the 2018 tax year.

Fine-Tuning Withheld Taxes
In January, the IRS released updated income-tax withholding tables for 2018 that reflected changes made by the tax reform law. The IRS instructed employers to begin using the 2018 withholding tables as soon as possible but no later than Feb. 15. However, because of the significant changes in the new tax code, employees may want to ensure that their current withholding is appropriate. Many employers may have already received inquiries, and now they can direct staff to the new 2018 W-4.

The new W-4 instructions state that if you use the withholding calculator, you don’t need to complete any of the worksheets for Form W-4. This was not stated on the previous W-4 and may indicate that the withholding calculator is the most reliable method to get taxpayers’ withholding closer to their tax liability.

The withholding changes do not affect 2017 tax returns due this April.

Withholding issues can be complicated, and the calculator is designed to help employees make changes based on their personal financial situation.  By encouraging employees to take a few minutes can help them ensure they don’t have too little—or too much—withheld from their paycheck.

A ‘Paycheck Checkup’
By checking their withholding, employees can avoid facing an unexpected tax bill or penalty at tax time in 2019, or prevent having too much tax withheld, the IRS said. With the average refund topping $2,800, some taxpayers might prefer to have less tax withheld up front and receive more in their paychecks.

Employees with simple tax situations might not need to make any changes, the IRS advised. Simple situations include singles and married couples with only one job, who have no dependents, and who have not claimed itemized deductions, adjustments to income or tax credits.

Employees with more complicated financial situations, however, might need to revise their W-4 to make sure they have the right amount of withholding. Among those who should check their withholding are employees who:
  • Have two incomes or are in two-income families
  • Work only part of the year
  • Have dividends or capital gains from securities held in taxable accounts
  • Claim the Child Tax Credit, the Earned Income Tax Credit or other credits
  • Itemized deductions in 2017
  • Have high incomes and more complex tax returns

When using the IRS withholding calculator, employees will need to have their latest pay statement handy, as they will be asked to enter the federal income tax withheld from their last salary payment and the total federal income tax withheld to date in 2018. If employees follow the recommendations at the end of the calculator and change their withholding for 2018, remind them to recheck their withholding at the start of 2019 because a withholding rate adjusted in midyear 2018 will have a different full-year affect in 2019.

Lower Withholding & Bigger Paychecks Help Employees
A mid-February spot survey  polled 1,000 workers who reported that the new withholding rates for 2018 had increased the amount of money in their paycheck. The results showed:
  • Take-home pay after taxes rose by 3.5 percent on average, with an average paycheck growing by $130.76.
  • 35.7 percent of workers are using the tax savings to pay down debt.
  • 12.8 percent are increasing their retirement savings.

Last Minute Ruling Preliminarily Halts Overtime Rules

November 23 - Posted at 2:08 PM Tagged: , , , , , , , , , ,

Rules Will Not Take Effect On December 1; Future Thereafter Uncertain

In a dramatic last-minute development, a federal judge in Texas on Tuesday (11/22/16) blocked the U.S. Department of Labor’s (DOL) overtime rule from taking effect on December 1. The judge issued a preliminary injunction preventing the rules from being implemented on a nationwide basis.


The fate of the overtime rules is now uncertain. The Trump administration will take over the DOL in less than two months’ time, and the incoming administration has repeatedly indicated that it wants to eliminate unnecessary regulations hampering the business community. Unless an appeals court reverses course in the next several weeks and breathes new life into the rules, it is quite possible that the rules will be further delayed, completely overhauled, or altogether scrapped once President Trump takes office.

Background: Proposed Rules Would Have Brought Massive Changes And Upheaval


On May 18, 2016, the DOL unveiled a package of revised regulations altering the compensation requirements relating to which employees may be treated as exempt from the federal Fair Labor Standards Act’s (FLSA’s) overtime and minimum-wage requirements under the so-called “white collar” exemptions. The two changes with the broadest impact: the minimum salary threshold to characterize an employee as non-exempt would increase from $455 to $913 per week, which annualizes to $47,476 (up from $23,660 per year); and this amount would be “updated” every three years (meaning that it will likely increase with each update) with the first update scheduled for January 1, 2020.


Once announced, the DOL informed employers that the new rules would take effect on December 1, 2016. By this date, employers would have been forced to make sometimes difficult decisions on how to compensate the estimated 4.2 million workers who are currently classified as exempt under the so-called “white collar” exemptions but earn less than the new threshold.



Almost immediately, an outcry sprung from the business community, especially those advocating on behalf of small businesses. By doubling the existing salary threshold, the DOL’s actions would likely reduce the proportion of exempt workers sharply while increasing the compensation of many who will remain exempt, rather than engaging in the fundamentally definition process called for under the FLSA. As many pointed out, manipulating exemption requirements to “give employees a raise” has never been an authorized or legitimate pursuit.



Moreover, publishing what amounts to an automatic “update” to the minimum salary threshold is something that has never before happened in the more-than-75-year history of the FLSA exemptions. This departs from the prior DOL practice of engaging in what should instead ultimately be a qualitative evaluation that would take into account a variety of considerations.


Businesses And States Turn To Court For Relief


In response to these announced changes, a group of 21 states and several business associations filed lawsuits in the Eastern District of Texas seeking a court order that would block the rules from going into effect. The cases were all consolidated into one action, to be heard by District Court Judge Amos Mazzant.


The challengers argued that the DOL did not properly carry out its responsibility under the FLSA to define these exemptions, failing to take into account the duties of white-collar workers as the best indicator for whether threshold increases were needed. The plaintiffs also argued that the automatic indexing mechanism which would ratchet up the salary levels every three years was improper because it would ignore current economic conditions or the effect on public and private resources.


Court Blocks Overtime Rules


On November 22, 2016, District Court Judge Mazzant agreed with the state challengers and blocked final implementation of the rule mere days before the December 1 effective date. In his ruling, he stated that it was improper for the DOL to adopt a salary test that categorically excludes a substantial number of workers who meet the exemptions’ duties-related requirements. Although he acknowledged that Congress delegated definitional power to the agency with respect to these exemptions, he concluded that the DOL overstepped its authority.


He concluded that the rule change equated to a de facto “salary-only test,” because it would have had the effect of causing some 4.2 million workers who are today classified as exempt to become non-exempt, despite the fact they would have exactly the same job duties on December 1. He said that Congress never authorized the DOL to classify white collar workers based on salary alone, and the DOL ignored Congress’s intent by attempting to raise the minimum salary as it did. “If Congress intended the salary requirement to supplant the duties test,” he said, “then Congress, and not the DOL, should make that change.”



The judge recognized that, for 75 years, the salary levels that served as part of the DOL’s overtime exemption test acted as a floor and not a ceiling. He said during last week’s oral argument the new rule’s proposed salary jump was “a much more drastic change.” During that argument, in fact, he pointed out that the proposed substantial increase in the salary threshold could lead to inconsistent treatment of workers who each fulfill white collar duties but are paid differently. An example is a convenience store manager who clearly acts as an executive and who is paid a salary annualizing to only $47,000 a year, for example, would be treated differently than a similarly situated manager who is paid a salary equating to $47,500 a year.

 

How Does Trump’s Election Impact The Future Of The Rules?


President Trump will be inaugurated on January 20, 2017 – less than two months from today. It is possible that Judge Mazzant might be swayed by DOL arguments in the coming weeks, or that an appeals court could step into reverse Judge Mazzant’s ruling before President Trump takes office. As the judge said in his opinion, it could be that this ruling “only delay[s] the regulation’s implementation.”



Assuming that the injunction survives the remainder of President Obama’s term, it is difficult to predict what President Trump will do with the rules once in the White House. Perhaps President Trump will direct his DOL to commence a new rulemaking process, subject to notice and comment, with the goals of setting lower thresholds for the salary requirement and eliminating the three-year update, among other changes. How long and what form such a process would take, and what could or would be done in the meantime, are currently unpredictable.



At the same time, a series of measures have been introduced in Congress hoping to prevent or stall the rules changes. While one of the proposed legislative changes would scrap the increases altogether, another proposed change would delay implementation for a period of time to provide a longer period of preparation. Still, another would push the date that the full increase would take effect to 2019, introducing more forgiving gradual increases on an annual basis for the next three years.



The fate of these measures is similarly uncertain at present. Even if any of these measures were fast-tracked, approved by Congress, and signed by President Obama before he leaves office, it is unclear whether they would ever take effect given the nature of the current litigation.


What Should Employers Do Now?


Some employers might find themselves in a difficult spot. If you have already made alterations to your compensation plans or to your employees’ exemption status, it might be unpopular to reverse course now. Although you may have the legal right to revert to the status quo depending on your circumstances, you might consider waiting until a final decision is reached in court, Congress, and the White House before doing anything further.



If you had been waiting until December 1 to implement the changes, you have the option of putting any alterations on ice and awaiting a final determination on the fate of the rules. If you do so, you might consider communicating to your workforce that the expected changes are going to be delayed given today’s court ruling, and let them know that you will continue to monitor the situation and make adjustments when and if appropriate.



We will track these developments and provide updates as issued.

The U.S Labor Department (USDOL) has finally released the anxiously awaited revised regulations affecting certain kinds of employees who may be treated as exempt from the federal Fair Labor Standards Act’s (FLSA) overtime and minimum-wage requirements. These will be published officially on May 23, 2016.


If you currently consider any of your employees to be exempt “white collar” employees, you might have to make some sweeping changes.


Summary of Changes

In brief, the following changes will be made in USDOL’s definitions of executive, administrative, professional, computer-employee, and highly compensated exemptions under the FLSA’s Section 13(a)(1):


  • The minimum salary threshold is increasing to $913 per week, which annualizes to $47,476 (up from $455 per week, or $23,660 per year). USDOL says that this figure is set at the 40th percentile of data representing what it calls “earnings of full-time salaried workers” in the lowest-wage Census region (currently the South).
  • This amount will now be “updated” every three years (meaning that it will likely increase with  each “update”), beginning on January 1, 2020. USDOL will announce these changes 150 days in advance.
  • Employers will be able to satisfy up to 10% of this new threshold through nondiscretionary bonuses and other incentive payments, including commissions, provided that the payments are made at least quarterly. This crediting will not be permitted as to the salaries paid to employees treated as exempt “highly compensated” ones.
  • The total-annual-compensation threshold for the “highly compensated employee” exemption will increase from $100,000 to $134,004 (which will also be “updated” every three years). USDOL says that this figure is set at the 90th percentile of data representing what it calls “earnings of full-time salaried workers” nationally.


These rules will become effective on December 1, 2016, which is considerably later than had been thought. Unless this is postponed somehow, you must do by this time what is necessary to continue to rely upon one or more of these exemptions (or another exemption) as to each affected employee, or you must forgo exempt status as to any employee who no longer satisfies all of the requirements.

The Bottom Line

Essentially, USDOL is doubling the current salary threshold. This is likely intended to both reduce the  proportion of exempt workers sharply while increasing the compensation of many who will remain exempt, rather than engaging in the fundamentally definition process called for under the FLSA. Manipulating exemption requirements to “give employees a raise” has never been an  authorized or legitimate pursuit.


For the first time in the exemptions’ more-than-75-year history, USDOL will publish what amounts to an automatic “update” to the minimum salary threshold. This departs from the prior USDOL practice of engaging in what should instead ultimately be a qualitative evaluation that also takes into account a variety of non-numerical considerations.


USDOL did not change any of the exemptions’ requirements as they relate to the kinds or amounts of work necessary to sustain exempt status (commonly known as the “duties test”). Of course, USDOL had asked for comments directed to whether there should be a strict more-than-50% requirement for exempt work. The agency apparently decided that this was not necessary in light of the fact that “the number of workers for whom employers must apply the duties test is reduced” by virtue of the salary increase alone.


What Should You Do Now?

Some in Congress are still considering action aimed at stopping these changes, and it is possible that lawsuits will be filed with the same goal. While one or more of these challenges may be successful, you should assume for the time being that the new requirements will take effect as scheduled.


Right now, you should be:


  • analyzing whether the requirements for the “white collar” exemptions you have been relying upon are met
  • evaluating what might be changed about one or more jobs so that the incumbents may be treated as exempt in the future
  • considering the possible application of alternative FLSA exemptions, and
  • developing FLSA-compliant pay plans for employees who have been treated as exempt but who no longer will be.


USDOL has provided extensive commentary explaining its rationale for the revised provisions. We are continuing to study the final regulations and accompanying discussion carefully and will provide updates/changes as published.

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