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Opinion: New administration busy with employment matters

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Recent presidential executive orders, opinion letters and guidance manual updates are impacting area employers regarding religious discrimination, unemployment claims due to COVID-19, Occupational Safety and Health Administration concerns regarding COVID-19, and wage and hour opinion letters issued and withdrawn.

Here are some changes businesses must be aware of in order to modify policies and procedures to ensure compliance and conduct management training.

Unemployment benefits
A Jan. 22-signed executive order requests the Department of Labor to consider addressing whether a worker will still qualify for unemployment benefits if they decline employment that will endanger their health or the health of a family member at heightened risk if they contract COVID-19.

COVID guidance
The Jan. 21 order directed OSHA to issue stronger guidance regarding COVID-19. It calls for companies to include face covering information from the Centers for Disease Control and Prevention, consider offering a vaccine at no cost to staff members and ensure vaccinated employees continue to follow all CDC and OSHA guidelines, since at this time, “there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person,” according to the order.

Fair labor
The Jan. 19 opinion letter addressed whether the Fair Labor Standards Act retail or service establishment exemption applied to staffing firms that recruit, hire and place associates on temporary assignment or in temp-to-hire positions with clients. The FLSA exempts certain laborers of retail or service establishments from overtime pay requirements.

The DOL withdrew three opinion letters FLSA2021-4, FLSA2021-8 and FLSA2021-9. The letters addressed restaurant tip pools, independent contractor status for distributors of manufactured food products and independent contractor status of tractor-trailer truck drivers required by motor carriers to implement legally mandated safety measures, respectively.

Religious discrimination
The revisions to the Compliance Manual Section of Religious Discrimination on Jan. 15 were the first since 2008. The manual provides insight into the U.S. Equal Employment Opportunity Commision’s enforcement priorities, but it does not have the force of law or regulations.

The manual addresses reasonable accommodation, which includes flexible scheduling, voluntary swaps of shifts, lateral transfers and modifying workplace practices, policies or procedures. It also clarifies the definition of undue hardship, which differs from the use of the phrase in the Americans with Disabilities Act.

Factors to now consider when analyzing undue hardship include if the accommodation reduces productivity in other positions, infringes on other employees’ job rights or benefits, undermines workplace safety or results in co-workers performing the accommodated person’s portion of potentially hazardous or difficult work. Another factor includes proselytizing. Conduct that is disruptive to the workplace, even if it does not rise to the level of harassment under Title VII, may still cause an undue hardship on the operation of the organization.

Employers should permit religious expression among staff members at least identical to the degree they allow other types of personal expression that are not harassing or disturbing to business operations.

Journalism update
A journalist whose job duties satisfy the primary duties test is now considered an exempt creative professional. Their primary duty must be conducting investigative interviews; analyzing or interpreting public events; acting as a narrator or commentator; writing editorials, opinion columns or other commentary; or performing on the air in radio, television or other electronic media. Accordingly, the employer does not have to pay them at least minimum wage for every hour worked or overtime for any hours worked over 40 in a workweek. The employer is irrelevant, whether a small-town or rural newspaper, major metropolitan daily newspaper or local broadcast station. On the other hand, their position is not exempt if the journalist does not contribute a unique interpretation or analysis to a news product and only collects, organizes and records routine or already public information.

Lynne Haggerman holds a master of science in industrial organizational psychology and is president/owner of Lynne Haggerman & Associates LLC, specializing in management training, retained search, outplacement and human resource consulting. She can be reached at


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