CO Compliance Connection- October 2021 Part II

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Federal Compliance Update

Federal: Tips Dual Jobs Final Rule 

Update 10/29/2021: Effective December 28, 2021, the U.S. Department of Labor’s Tips Dual Jobs final  rule clarifies when employers can take a tip credit for employees working in dual roles. For example, a  hotel maintenance person also works in the hotel restaurant as a server. If this employee customarily  and regularly receives at least $30 a month in tips for their work as a server, they are engaged in a  tipped occupation—but only when they’re working as a server. The employee is employed in two  occupations, and the employer can’t take a tip credit for the hours worked in the maintenance position. 

The final rule clarifies that employers can only take a tip credit when:  

• The worker is performing tip producing work; or 

• As a tipped employee, they perform work that directly supports tip producing work for: 

o Less than 20 percent of their workweek hours worked, also referred to as a “20 percent  tolerance” because employers can’t take a tip credit for any time that exceeds 20 percent  of the workweek. The time that an employer doesn’t take a tip credit is excluded when  calculating the 20 percent tolerance. 

o Not more than 30 minutes. 

The final rule also amends Executive Order 13658—regulating the hourly minimum wage paid by  contractors to workers who are performing work on or in connection with covered federal contracts— to  be consistent with the dual jobs laws. 

Federal: EEOC Updates Guidance on COVID-10 Vaccination and Religious Exemption 

On October 25, 2021, the Equal Employment Opportunity Commission (EEOC) posted updated and  expanded technical assistance (see Section L below) related to COVID-19 by addressing questions  about religious objections to employer COVID-19 vaccine requirements and how they interact with  Federal Equal Employment Opportunity (EEO) laws. The expanded technical assistance provides new information about how Title VII of the Civil Rights Act applies when an applicant or employee requests  an exception from an employer’s COVID-19 vaccination requirement that conflicts with their sincerely  held religious beliefs, practices, or observances. Title VII requires employers to accommodate  employees’ sincerely held religious beliefs, practices, and observances absent undue hardship. The  technical assistance was updated to safeguard that right as employers seek to protect workers and the public from the virus.

The key updates to the technical assistance are: 

• Employees and applicants must inform their employers if they seek an exception to an  employer’s COVID-19 vaccine requirement due to a sincerely held religious belief, practice, or  observance. 

• Title VII requires employers to consider requests for religious accommodations but does not  protect social, political, or economic views, or personal preferences of employees who seek  exceptions to a COVID-19 vaccination requirement. 

• Employers that demonstrate “undue hardship” are not required to accommodate an employee’s  request for a religious accommodation. 

The EEOC is providing this information to the public because many employers are requiring their  employees to be vaccinated against COVID-19 as a condition of their employment. It only answers  COVID-19 questions from the perspective of the EEO laws and doesn’t include guidance about other  applicable federal, state, and local laws. 

The text below is reprinted from the EEOC's article “What You Should Know About COVID- 19 and the ADA, the Rehabilitation Act, and Other EEO Laws." Navigate to the page here. 

Section L. Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on religion. This includes a right for job applicants and employees to request an exception, ca led a religious or reasonable accommodation, from an employer requirement that conflicts with their sincerely held religious beliefs, practices, or observances. If an employer shows that  it cannot reasonably accommodate an employee’s religious beliefs, practices, or observances without  undue hardship on its operations, the employer is not required to grant the accommodation. See Section 12: Religious Discrimination – EEOC Guidelines on Discrimination Because of Religion.  Although other laws, such as the Religious Freedom Restoration Act (RFRA), may also protect religious  freedom in some circumstances, this technical assistance only describes employment rights and obligations under Title VII. 

L.1. Do employees who have a religious objection to receiving a COVID-19 vaccination need to  tell their employer? If so, is there specific language that must be used under Title VII? (10/25/21) Employees must tell their employer if they are requesting an exception to a COVID-19 vaccination  requirement because of a conflict between that requirement and their sincerely held religious beliefs,  practices, or observances (hereafter ca led “religious beliefs”). Under Title VII, this is ca led a request  for a “religious accommodation” or a “reasonable accommodation.” 

When making the request, employees do not need to use any “magic words,” such as “religious  accommodation” or “Title VII.” However, they need to notify the employer that there is a conflict  between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement. 

The same principles apply if employees have a religious conflict with getting a particular vaccine and  wish to wait until an alternative version or specific brand of COVID-19 vaccine is available. 

As a best practice, an employer should provide employees and applicants with information about whom  to contact, and the procedures (if any) to use, to request a religious accommodation. 

L.2. Does an employer have to accept an employee’s assertion of a religious objection to a  COVID-19 vaccination at face value? May the employer ask for additional information? (10/25/21) Generally, under Title VII, an employer should assume that a request for religious accommodation is  based on sincerely held religious beliefs. However, if an employer has an objective basis for 

questioning either the religious nature or the sincerity of a particular belief, the employer would be  justified in making a limited factual inquiry and seeking additional supporting information. An employee  who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious  nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation. See Section 12-IV.A.2: Religious Discrimination.  

The definition of “religion” under Title VII protects nontraditional religious beliefs that may be unfamiliar  to employers. While the employer should not assume that a request is invalid simply because it is  based on unfamiliar religious beliefs, employees may be asked to explain the religious nature of their  belief and should not assume that the employer already knows or understands it. By contrast, Title VII  does not protect social, political, or economic views, or personal preferences. Thus, objections to  COVID-19 vaccination that are based on social, political, or personal preferences, or on nonreligious  concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under Title VII. 

The sincerity of an employee’s stated religious beliefs also is not usually in dispute. The employee’s  sincerity in holding a religious belief is “largely a matter of individual credibility.” Factors that – either  alone or in combination – might undermine an employee’s credibility include: whether the employee has  acted in a manner inconsistent with the professed belief (although employees need not be scrupulous  in their observance); whether the accommodation sought is a particularly desirable benefit that is likely  to be sought for nonreligious reasons; whether the timing of the request renders it suspect (e.g., it  follows an earlier request by the employee for the same benefit for secular reasons); and whether the  employer otherwise has reason to believe the accommodation is not sought for religious reasons. 

The employer may ask for an explanation of how the employee’s religious belief conflicts with the  employer’s COVID-19 vaccination requirement. Although prior inconsistent conduct is relevant to the  question of sincerity, an individual’s beliefs – or degree of adherence – may change over time and,  therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be  sincerely held. An employer should not assume that an employee is insincere simply because some of  the employee’s practices deviate from the commonly fo lowed tenets of the employee’s religion, or  because the employee adheres to some common practices but not others. No one factor or  consideration is determinative, and employers should evaluate religious objections on an individual  basis. 

When an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is  not sincerely held, Title VII does not require the employer to provide an exception to the vaccination  requirement as a religious accommodation. 

L.3. How does an employer show that it would be an “undue hardship” to accommodate an  employee’s request for religious accommodation? (10/25/21) 

Under Title VII, an employer should thoroughly consider all possible reasonable accommodations,  including telework and reassignment. In many circumstances, it may be possible to accommodate  those seeking reasonable accommodations for their religious beliefs, practices, or observances without  imposing an undue hardship. 

If an employer demonstrates that it is unable to reasonably accommodate an employee’s religious  belief without an “undue hardship” on its operations, then Title VII does not require the employer to  provide the accommodation. 42 U.S.C. § 2000e(j). The Supreme Court has held that requiring an  employer to bear more than a “de minimis,” or a minimal, cost to accommodate an employee’s religious  belief is an undue hardship. Costs to be considered include not only direct monetary costs but also the  burden on the conduct of the employer’s business – including, in this instance, the risk of the spread of  COVID-19 to other employees or to the public. 

Courts have found Title VII undue hardship where, for example, the religious accommodation would  impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the 

accommodated employee’s share of potentially hazardous or burdensome work. 

An employer will need to assess undue hardship by considering the particular facts of each situation  and will need to demonstrate how much cost or disruption the employee’s proposed accommodation  would involve. An employer cannot rely on speculative hardships when faced with an employee’s  religious objection but, rather, should rely on objective information. Certain common and relevant  considerations during the COVID-19 pandemic include, for example, whether the employee requesting  a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in  a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals). Another relevant consideration is the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the  employer). 

L.4. If an employer grants some employees a religious accommodation from a COVID-19  vaccination requirement because of sincerely held religious beliefs, does it have to grant the  requests of all employees who seek an accommodation because of sincerely held religious  beliefs? (10/25/21) 

No. The determination of whether a particular proposed accommodation imposes an undue hardship on  the conduct of the employer’s business depends on its specific factual context. When an employer is  assessing whether exempting an employee from getting a vaccination would impair workplace safety, it  may consider, for example, the type of workplace, the nature of the employee’s duties, the number of  employees who are fu ly vaccinated, how many employees and nonemployees physically enter the  workplace, and the number of employees who will in fact need a particular accommodation. A mere  assumption that many more employees might seek a religious accommodation to the vaccination  requirement in the future is not evidence of undue hardship, but the employer may consider the  cumulative cost or burden of granting accommodations to other employees. 

L.5. Must an employer provide the religious accommodation preferred by an employee if there  are other possible accommodations that also are effective in eliminating the religious conflict  and do not cause an undue hardship under Title VII? (10/25/21) 

No. If there is more than one reasonable accommodation that would resolve the conflict between the  vaccination requirement and the sincerely held religious belief without causing an undue hardship  under Title VII, the employer may choose which accommodation to offer. If more than one  accommodation would be effective in eliminating the religious conflict, the employer should consider the  employee’s preference but is not obligated to provide the reasonable accommodation preferred by the  employee. If the employer denies the employee’s proposed accommodation, the employer should  explain to the employee why the preferred accommodation is not being granted. 

An employer should consider all possible alternatives to determine whether exempting an employee  from a vaccination requirement would impose an undue hardship. (Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose  an undue hardship.) 

L.6. If an employer grants a religious accommodation to an employee, can the employer later  reconsider it? (10/25/21) 

The obligation to provide religious accommodations absent undue hardship is a continuing obligation  that considers changing circumstances. Employees’ religious beliefs and practices may evolve or  change over time and may result in requests for additional or different religious accommodations.  Similarly, an employer has the right to discontinue a previously granted accommodation if it is no longer  utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship  on the employer’s operations due to changed circumstances. As a best practice, an employer should  discuss with the employee any concerns it has about continuing a religious accommodation before  revoking it and consider whether there are alternative accommodations that would not impose an  undue hardship.

Recording workplace exposures to COVID-19 – Retrieved from OSHA COVID-19  regulations found at: OSHA COVID-19 Info 

OSHA recordkeeping requirements mandate covered employers record certain work-related injuries  and illnesses on their OSHA 300 log (29 CFR Part 1904). 

COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are true: 

• The case is a confirmed case of COVID-19 (see CDC information on persons under  investigation and presumptive positive and laboratory-confirmed cases of COVID-19); 

• The case is work-related (as defined by 29 CFR 1904.5); and 

• The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g., medical treatment beyond first aid, days away from work). 

Employers should follow the OSHA enforcement guidance found in the Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19). 

Visit OSHA's Injury and Illness Recordkeeping and Reporting Requirements page for more information.

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State Compliance Update

Nothing to report this month.

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Compliance Calendar

November 

11/1 – Form 941 Filing Deadline (third quarter) 

December 

January 

1/31 – Deadline to Distribute Forms 1095-B and 1095-C 

1/31 – Form 940 Filing Deadline 

1/31 – Form 941 Filing Deadline (fourth quarter) 

1/31 – Forms W-2 and 1099-MISC Distribution Deadline 

1/31 – W-2 and W-3 Filing Deadline