Nonprofits Insurance Alliance

Navigating the ever-changing COVID-19 safety rules has been a compliance nightmare for employers.

Now, hopefully, there will be some certainty for larger employers and those in the healthcare industry as the legality of the federal government’s COVID-19 vaccine and “vaccinate or test” mandates will finally be decided by the U.S. Supreme Court.

At issue are two separate orders:

• • The Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS), which applies to employers with over 100 workers.
  • The Center for Medicare & Medicaid Services’ (CMS) healthcare mandate, which is specific to the healthcare industry.

While OSHA’s ETS gives employers the option to test unvaccinated employees for COVID-19, the CMS mandate does not allow for a testing option and requires a vaccination for all covered workers.

OSHA ETS
While prior courts had issued a nationwide stay on the enforcement of the OSHA ETS, on December 17, the Sixth Circuit Court of Appeals reversed course and dissolved the stay, clearing OSHA to enforce the ETS across the country.

With the national election less than a month away, we’re already seeing pictures of long lines of early voters and reports that maintaining social distancing in polling locations due to the COVID-19 pandemic will likely increase the time it takes to vote. One thing is clear: Employers need to prepare for employees’ requests for time off on Tuesday November 3^rd.

Over 600 national employers, encouraged by the Time to Vote movement, have chosen to make election day a paid holiday. If you don’t have election day as a holiday, it’s important to consider what employers' responsibilities are for providing leave to vote.

Following the 2018 decision in Dynamex Operations West, Inc. v. Superior Court, which established a three-part ABC test to determine coverage under the California Wage Orders—regulations from which many higher level and higher paid workers are exempt—Assembly Bill 5 now applies the ABC test to determine worker eligibility for inclusion in the workers compensation and unemployment insurance systems. All the employee rights found in the California Labor Code, including things such as paid sick leave, business expense reimbursement, and rules governing the frequency and timing of the payment of wages, are now determined by the new statute.

There’s an old saying: “What you don’t know, can’t hurt you.” In the employment context, recent federal court cases have sometimes called for that phrase to become, “What you do know can hurt you”—especially if you ask the wrong questions and uncover information you shouldn’t have! Background checks help ensure you have all relevant information when making a hiring decision. Any good nonprofit conducts background checks on applicants for employment or volunteer positions as part of due diligence and risk management.

Proper classification of workers as employees or independent contractors has always been a major risk management consideration because of the potential for the imposition of penalties.  Since the California Supreme Court’s 2018 decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, California employers have been examining existing and potential independent contract relationships to see if they run afoul of the new ABC classification test presented by the Court.