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Opinion: Stay up on federal employment law changes

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Recently, federal employment laws have been revised, clarified and implemented. In this column, I’ll focus on these: The Form I-9 policies due to the COVID-19 pandemic have been terminated, while the disease itself may now be considered a disability under the Americans with Disabilities Act. Predispute arbitration and predispute joint action waivers will now be invalid for sexual assault or harassment dispute claims, but not for sexual and other discrimination claims. In addition, a federal judge ruled against the Biden administration, so continue utilizing the Trump-era requirements when determining if an individual is an independent contractor.

Form I-9
Since 2020, the Department of Homeland Security permits companies to accept expired List B identity documents due to the closure or restricted operations of many issuing government agencies during the COVID-19 pandemic. This ends on April 30. An organization that received expired List B documents between May 1, 2020, and April 30, 2022, must update the Forms I-9 of current employees by July 31. A staff member who presented an expired document needs to provide an unexpired List B document or a List A document. The business is required to enter, initial and date the following information in the Section 2, “Additional Information” field: title, issuing authority, number and expiration date.

In addition, on several occasions during 2020 and 2021, the DHS permitted and extended the ability of new hires working remotely to submit the required documents virtually rather than in person. The most recent extension was scheduled to last this year until April 30. The DHS has not yet announced whether this provision will be prolonged.

COVID-19 as a disability
The Equal Employment Opportunity Commission recently issued guidance regarding when COVID-19 might be a disability under the ADA. A laborer with COVID-19 who is asymptomatic or has mild symptoms similar to the common cold or flu is not disabled under the ADA. A worker with a long COVID sickness who experiences the following symptoms may be disabled if these symptoms substantially limit a major life activity: headaches, fatigue, dizziness, vomiting, nausea, chest pain, heart palpitations, intestinal pain, brain fog, shortness of breath and difficulty remembering or concentrating. What to do? Engage in the interactive process, conduct an individualized assessment and provide reasonable accommodation if the assessment determines the associate is disabled.

Sexual assault and harassment
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act was signed into law March 3. Now, predispute arbitration agreements and joint action waivers are invalid or unenforceable regarding a case filed under federal, tribal or state law if the case pertains to a sexual assault or harassment dispute. Accordingly, mandatory arbitration provisions or class and collective action waivers in employment agreements are unenforceable for that case, if the claim arose after March 3. Employees may choose to proceed to arbitration or an individual, rather than a class or collective, action basis. This does not apply to sexual or other discrimination claims under Title VII or state law.

Independent contractor rule
The Trump-era rule for deciding if an individual is an independent contractor has been reinstated by a federal district court due to the Biden administration neglecting key requirements for the rule withdrawal process. Therefore, when determining independent contractor status, continue analyzing the following:

  • The degree and nature of control exerted over the work.
  • The opportunity for the person to have profit or loss.
  • The amount of skill required for the work.
  • The degree of permanence in the relationship with the potential employer.
  • If the work is part of an integrated unit of production.

The first two factors should typically carry the greatest weight.

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 lynne@lynnehaggerman.com.

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