Learning and development professionals shared training insights and best practices for early career training during a recent virtual roundtable hosted by London-based Fitch Learning. https://www.shrm.org/resourcesandtools/hr-topics/organizational-and-employee-development/pages/ld-pros-share-best-practices-for-early-career-training.aspx

What employees want in terms of benefits and compensation is not always the same as what employers think they want.

The New Zealand Court of Appeals recently clarified the definition of “discretionary” pay under the Holidays Act 2003, concluding that certain bonus payments do not need to be included in the calculation of gross earnings if they are clearly described as discretionary. The decision is welcome news for employers with operations in New Zealand – and provides you with an easy-to-follow blueprint for developing bonus policies that fall under this standard.

Summary of Holidays Act

Section 14 of the Holidays Act requires that an employer include all forms or amounts of non-discretionary or required pay in its calculation of an employee’s “gross earnings.” This, in turn, affects the employee’s annual holiday pay. While the calculation includes any “productivity or incentive-based payments,” it expressly excludes discretionary payments. And that’s where the issue arises in this case – when is a bonus discretionary?

Dispute Over Bonus System

In Metropolitan Glass & Glazing Ltd. v. Labour Inspector, the Court of Appeal reviewed the employer’s Short-Term Incentive Bonus Scheme. Under the bonus system, employees were eligible for a bonus if they met three performance targets. However, in the relevant documents outlining the system, Metropolitan’s policy indicated that “any payments are totally at the discretion of [Metropolitan] and there is no guarantee of any payment in any year.”

The company’s written summary of the bonus plan also provided examples of instances where Metropolitan could refuse to pay the bonus. This includes situations such as when the employee had been subject to disciplinary action or had an overall performance appraisal of “Needs Improvement.” Based on these conditions, Metropolitan considered these payments “discretionary” under Section 14 of the Act, and did not include them in the calculation of the employees’ “gross earnings.”

Following a dispute regarding whether the employer should have paid out the bonus, the Employment Court ruled that the bonus payments were not discretionary and should therefore be included in Metropolitan’s gross earnings calculations. It based this determination on the fact that the parties intended the bonus scheme to have contractual force.

Court of Appel Reverses Course and Rules for Employer

The Court of Appeal, however, viewed the bonus payments differently. Reviewing the plan comprehensively, the Court of Appeal stated that the dividing line between whether a payment is discretionary or not depends on whether the employer is contractually bound to make the payment. The Court stated that conditional payments, for example, where an employer has to make the payment if certain conditions are met, are non-discretionary and must be a part of the gross earnings calculation.

On that basis, the Court of Appeal determined that Metropolitan’s payments under its bonus scheme were entirely discretionary. Not only did the employer label them as “discretionary,” it also included express language within the scheme explaining that Metropolitan still retained the discretion not to make any payments even if all of the conditions were met. Therefore, the Court concluded, the bonus scheme payments were discretionary, and Metropolitan was correct to have excluded them from its employees’ “gross earnings” calculations under Section 14 of the Act.

What Does This Mean for Employers?

This decision provides helpful guidance for employers with operations or employees in New Zealand in terms of calculating holiday pay under the Act. If you offer bonus schemes or additional payments, you should carefully and comprehensively review your policies to ensure all payments are properly characterized under applicable law.

We will continue to monitor developments in this area of law, including any appeals, so you should ensure you are signed up for the Fisher Phillips Insight System to receive the most up-to-date information. If your organization does business in New Zealand, please contact a member of Fisher Phillips’ International Employment Practice Group to learn more about the potential implications of this case and how your organization can mitigate any risks associated with it.

While spending likely won’t continue at the same torrid pace in 2022, industry analysts expect many of this year’s trends to continue or accelerate as technology becomes… https://www.shrm.org/resourcesandtools/hr-topics/technology/pages/hr-tech-predictions-trends-2022.aspx

Narcissistic managers, passive-aggressive employees and the bad habits of remote workers were among the most-read articles for people managers in 2021.

In response to the ongoing Omicron wave of COVID-19 cases, the Centers for Disease Control and Prevention just updated its guidance to reduce, in most instances, both the length of time an individual must isolate after contracting COVID-19, and the quarantine period for those exposed to the illness. While it may be a good sign the CDC believes shorter periods are appropriate due to the prevalence of milder Omicron cases, this new guidance doesn’t come without complexities. The December 27 guidance not only abruptly changes rules employers had in place for several months, it also leads to questions about which guidance employers should now follow given the status of OSHA’s Emergency Temporary Standard (ETS). What do employers need to know about this latest curveball? This Insight provides a practical five-step compliance plan.

New Guidance in a Nutshell

Noting modifications were needed given what it “currently knows about COVID-19 and the Omicron variant,” the CDC:

  • shortened the recommended time for isolation from 10 days for people with COVID-19 to five days, if asymptomatic, followed by five days of wearing a mask when around others; and
  • for most of those whose are exposed to COVID-19 and unvaccinated, the CDC now also recommends a quarantine period of five days (instead of the previous seven to 14-day requirement) followed by “strict mask use” for an additional five days.

Step-By-Step Process for Following New Guidance

Employers can follow the new guidance by following this step-by-step process:

Isolation Period for Infected Employee After Positive COVID-19 Test

If an employee tests positive for COVID-19, they should follow this course regardless of vaccination status:

  • Stay home for five days.
  • If they have no symptoms or their symptoms are resolving after five days, they can leave their house.
  • They should continue to wear a mask around others for five additional days.
  • If they have a fever, they should continue to stay home until the fever resolves.

Quarantine Period After Employee is Exposed to Someone with COVID-19

If an employee has “close contact with a COVID-19 case, their course of action depends on their vaccination status.

  • For employees who are unvaccinated, haven’t received a booster, or received their second dose of Moderna/Pfizer more than six months ago or their single dose of Johnson & Johnson more than two months ago:
    • Stay home for five days. After that, they should continue to wear a mask around others for five additional days.
    • If they can’t quarantine, they must wear a mask for 10 days.
    • They should get a COVID-19 test on day five, if possible.
    • If they develop symptoms, they should get a test and stay home.
  • For employees who have received a booster after receiving a two-dose Moderna/Pfizer vaccine or a single-dose Johnson & Johnson vaccine, or received their second dose of Moderna/Pfizer less Than six months ago or their single dose of Johnson & Johnson less than two months ago:
    • Wear a mask around others for 10 days.
    • They should get a COVID-19 test on day five, if possible.
    • If they develop symptoms, they should get a test and stay home.

OSHA’s ETS Remains Unchanged – For Now

Even though OSHA’s ETS (which is currently in effect) specifically references the CDC’s isolation guidance for employees who have contracted COVID-19, the new guidance’s five-day isolation period does not yet apply to those employers covered by the ETS

Specifically, the ETS references and incorporates into its provisions an older version of the CDC isolation guidance, adopted on February 18, 2021, which required employees with COVID-19 to isolate for at least until:

  • 10 days after their first symptoms or administration of their positive test;
  • their symptoms improved, and
  • they were fever-free for 24 hours (the ETS does not address quarantine periods for exposed employees).

As of now, the February 18, 2021 version of the CDC isolation guidance still applies for purposes of compliance with the ETS. OSHA cannot change the ETS to reflect the new guidance unless it publishes the new CDC guidelines in the Federal Register. However, based on our years of experience working with OSHA during inspections and when defending citations, we believe the agency will likely exercise discretion prior to citing an employer who falls under the ETS and adopts the new guidance. We will keep you updated on this issue and let you know if OSHA makes the required publications.

What Should Employers Do?

Requirements concerning COVID-19 issues, especially for employers who fall under OSHA’s ETS, are often confusing and often appear inconsistent. Take these five steps to place yourself in the best position to remain compliant despite this constantly shifting landscape.

  1. OSHA’s COVID-19 Vaccination or Testing ETS Governs Isolation – For Now – But Likely Will be Updated
    As noted, this is a fluid area. OSHA’s ETS hasn’t yet been updated to reflect the new guidance, but likely will be modified in the coming weeks. If you decide to follow the CDC’s new guidelines, OSHA likely will not cite you from doing so – but there’s no guarantee.
  2. Educate Your Workforce
    Change has been a constant throughout the COVID-19 pandemic. Employees are always concerned when policies change. If employees know that their coworkers may return to the worksite approximately five days after being diagnosed with COVID-19, they may be concerned. Alleviate this problem by educating your workers on any new company policy on isolation, including providing information on the new CDC guidance and why you are making changes.
  3. Vaccination Boosters are Important; Encourage Them – And Consider a Mandate
    As part of its press release announcing the new guidance as well in provisions of the guidance, the CDC highlighted the importance of COVID-19 vaccination boosters. Although they are not currently required to be considered “fully vaccinated” under the ETS and other guidance, encourage your employees to receive them this winter as COVID-19 cases remain high. If you have already mandated the vaccine in the workplace, consider requiring employees to receive a booster dose as well. 
  4. Contact Tracing Is Still Crucial to Minimize Cases of COVID-19
    As part of reducing the number of COVID-19 cases in the workplace, perform contact tracing when an employee tests positive for the virus following the 6-15-48 method. This includes asking the infected employee, and assessing the workplace, to determine who worked within six feet of the infected worker, for 15 minutes or more (cumulatively during any 24-hour period), during the time period of 48 hours before the infected person had symptoms or, if asymptomatic, the administration of the positive COVID-19 test. Implementing this process will prevent the illness from spreading in your workplace.
  5. Develop a COVID-19 or Infectious Disease Policy and ETS Policy
    If you haven’t already done so, implement a written COVID-19 or infectious disease policy to document your work rules on how to minimize cases in your workplace. The OSHA ETS also requires written policies, including a mandatory vaccination policy or testing and masking policy, which Fisher Phillips has available. Ask your Fisher Phillips attorney about these documents. Having written policies in place will not only keep you compliant with governing rules, but also allow you to communicate your policies effectively to your employees.

Conclusion

We will continue to monitor this development and provide updates as warranted. Until then, Fisher Phillips has created a set of comprehensive FAQs for employers on the ETS to help you navigate through this process. Make sure you are subscribed to Fisher Phillips’ Insight system to get the most up-to-date information.

If you have questions about how to ensure that your vaccine policies comply with workplace and other applicable laws, visit our Vaccine Resource Center for Employers or contact your Fisher Phillips attorney, the author of this Insight, or any attorney on our FP Vaccine Subcommittee.

The Department of Homeland Security (DHS) announced Dec. 20 that an additional 20,000 H-2B visas will be available for employers seeking seasonal foreign guest workers… https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/dhs-releases-extra-seasonal-h2bvisas-winter.aspx

The nation’s highest Court has announced it will step in and rule whether the Biden administration’s aggressive workplace vaccine strategy – including a mandate-or-test rule for larger employers and a strict mandate for certain healthcare organizations – should be temporarily blocked or are permitted to move forward as planned. In a pair of brief orders issued late Wednesday afternoon, the Supreme Court accepted review of the challenges to both OSHA’s ETS and CMS’s healthcare mandate and announced that oral argument will be held for both cases on January 7. So what should you be doing in the meantime? Here is a review of what has happened, along with our five-step survival guides for employers subject to either the OSHA ETS or the CMS mandate.

Brief Overview and Recap

There are two rules at play here: a general ETS issued by OSHA that covers employers with over 100 workers and the CMS’s Healthcare Mandate which is specific to the healthcare industry. Whereas OSHA’s general ETS provides an option for employers to test employees for COVID-19 at least weekly in lieu of mandating the vaccine, the CMS mandate does not allow for a testing option and requires a vaccination policy.

General OSHA ETS

After workplace safety officials at the Occupational Safety and Health Administration (OSHA) unveiled the mandate-or-test ETS on November 4, many groups opposing the rule filed actions in several federal courts to block the rule. The conservative Fifth Circuit Court of Appeals was the first to act by issuing a temporary “stay” that preliminarily blocked the ETS. This was followed by a November 12 extension of that stay which ordered OSHA to take no steps to implement or enforce the ETS.

But the Judicial Panel of Multidistrict Litigation announced on November 16 that it would consolidate all of the legal challenges and send them to the conservative Sixth Circuit Court of Appeals to decide the outcome of the rule. Then, on December 17, a surprise decision from a three-judge panel of the Sixth Circuit once again jolted employers back into scramble mode, as the court dissolved the stay and cleared OSHA to enforce the ETS across the country.

CMS Healthcare Mandate

The history and procedural status of the healthcare vaccine mandate are a bit messier. In early November, the Centers for Medicare & Medicaid Services (CMS) published a vaccine mandate, requiring all employees of healthcare facilities participating in Medicare and Medicaid – more than 17 million workers – to be fully vaccinated by January 4. Then, a pair of federal court decisions issued in late November blocked the mandate. First, on November 29, a federal judge in Missouri temporarily blocked the agency from enforcing the mandate in 10 states. And then, on November 30, a Louisiana federal court took one giant step further and blocked the rule from taking effect in any healthcare facility across the country that was not already covered by the Missouri decision.

Serving up yet another curveball for healthcare employers, the Fifth Circuit Court of Appeals effectively reactivated the CMS vaccination mandate with a surprise decision on December 15 – but only for employers operating in nearly half of the country. And that’s where things stand now. You can review this most recent Insight for a list of states where the CMS mandate has been kept alive and a list of states where the CMS mandate is currently blocked.

What Happened Yesterday?

While the orders from SCOTUS were brief and to the point, three significant takeaways can be gleaned from the announcements:

  1. First and foremost, the Supreme Court agreed to entertain challenges to both rules. That in and of itself is significant. While many might believe that the nation’s highest Court must render a definitive ruling in this matter, its decision to accept review of the challenges was far from certain. In fact, many observers thought the Court might even duck the cases and avoid wading into what is sure to be perceived as a political dispute. At the very least, employers can take some solace in knowing that we will soon have a decisive answer about the immediate enforceability of both vaccine rules.
  2. Second, the Court rejected the chance to block the rules pending the outcome of their final rulings. The slew of challenges filed with SCOTUS not only asked the justices to fast-track the matter but also to pause the rules while the appeal was being decided. The Court declined to do so, keeping the rules alive for the time being.
  3. Third, by setting the oral argument for January 7, the Court has essentially forced employers to invest time and resources in preparing their compliance efforts. In the case of the general OSHA ETS, the first compliance deadline is January 10 – and employers not preparing in “good faith” could actually feel an enforcement sting before that date according to recent guidance from OSHA. Of course, there’s no telling when the Court will rule on the ETS, but even if it issued a decision immediately after oral argument, that would leave precious little time for employers to comply and demonstrate good faith before January 10 – meaning you need to prepare now. And for those healthcare employers subject to the CMS mandate in about half the country, the deadline for full compliance still appears to be the January 4 date to aim for (because the agency has still not provided any further clarification about deadlines despite the appeals court rulings described above). This means that you need to keep that deadline in mind and operate under the presumption that the Court will uphold the mandate.

What Should You Do? 5-Step Survival Guides

To demonstrate reasonable good faith efforts to comply between now and January 10, employers subject to the OSHA ETS should follow this five-step game plan:

  1. Are You Covered? Determine if you are covered by the ETS. Work with your workplace safety counsel to answer the following questions: Is your workplace covered by OSHA normally? If so, do you have more than 100 employees nationwide? Or are you exempt because you are covered by either the Healthcare COVID-19 ETS or Federal Contractor mandate? (More on this below).
  2. Check Vaccine Status. If you are covered, gather vaccine status information on your workforce and develop the required vaccination roster for employees, noting whether or not they are fully vaccinated as defined under the ETS. This information (the percentage of vaccinated workers) will allow you to determine if you will mandate vaccines or conduct testing under the ETS.  
  3. Choose: Vaccine Mandate or Test? Depending on your decision, develop the required mandatory vaccine and/or testing/masking policies required under the ETS – and make sure they are adapted to your own unique workplace. While you don’t necessarily need to implement these policies before January 10, you should be ready to implement them as soon as possible and be prepared to demonstrate good faith efforts to put them into place. Of course, if your organization has low risk tolerance, you could proceed with implementing the policies before January 10. Employers in OSHA “state plan” states face the further complication of needing to wait for states to adopt the ETS – OSHA told state plans yesterday that they will need to act by January 24 to adopt the ETS or otherwise ensure that their state plans are “as effective” as the federal rule. The ETS will generally not be effective in state plan states until they do so.  
  4. Compliance Training. Develop programs that would allow you to conduct compliance training for your managers and deliver information about your policies to your employees as required under the ETS. You may want to conduct this training and start your informational campaign before the January 10 deadline to further demonstrate your good faith efforts.
  5. Testing Proof. If you decide to provide the COVID-19 testing option, then in addition to implementing the above requirements by January 10 you should be prepared to have unvaccinated employees demonstrate proof of a negative test as of February 9.

If you are subject to the CMS healthcare mandate, the following five steps, described in further detail here, are critical parts of a successful plan:

  1. Safeguard Information. Adopt systems and procedures to determine and safeguard all information regarding employees’ vaccination status;
  2. Communicate Policies. Communicate applicable policies and procedures to everyone who may work on-site, including but not limited to the particulars of your vaccine requirement and the process for requesting exemptions;
  3. Accommodation Requests. Develop a non-discriminatory, streamlined process to handle vaccine accommodation requests;
  4. Accommodation Precautions. Review and confirm additional COVID-19 precautions that apply to individuals who are granted accommodations; and
  5. Prepare for Pushback. Prepare to respond to some inevitable pushback and complaints, as well as likely on-site CMS inspections, by communicating clearly and maintaining detailed records of your processes.

Conclusion

We will continue to monitor this litigation and provide updates as warranted. Until then, Fisher Phillips has created a set of comprehensive FAQs for employers on the ETS to help you navigate through this process. Make sure you are subscribed to Fisher Phillips’ Insight system to get the most up-to-date information.

If you have questions about how to ensure that your vaccine policies comply with workplace and other applicable laws, visit our Vaccine Resource Center for Employers or contact your Fisher Phillips attorney, the authors of this Insight, or any attorney on our FP Vaccine Subcommittee or in our Healthcare Industry Group.

While an employer’s reason for firing an employee, such as absenteeism, may appear to be a legitimate, nondiscriminatory reason, if it conflicts with an employer’s…

An employee’s or job applicant’s COVID-19-related impairment may qualify as a disability under the Americans with Disabilities Act even if the worker’s initial COVID-19 illness was not covered, according to updated guidance from the U.S. Equal Employment Opportunity Commission (EEOC).