With Summer in full swing, this newsletter edition includes a couple of season-specific items such as preventing worker heat exposure and the release of the new Form I-9 . Also, we discuss using SMART goals for performance evaluations, handling religious accommodations, and more.
We hope you’ve had a great Summer so far and will enjoy this edition of The Essential while you beat the heat!
Enjoy and be well,
Sonya L. Kemp – Founder and President
Heat Hazard Awareness
Are you protecting your employees from the heat? According to the Occupational Safety and Health Administration, every year, thousands become sick from occupational heat exposure, and some cases are fatal. Most outdoor fatalities, 50% to 70%, occur in the first few days of working in warm or hot environments because the body needs to build a tolerance to the heat gradually over time. The process of building tolerance is called heat acclimatization. Lack of acclimatization represents a major risk factor for fatal outcomes.
The U.S. Department of Labor (DOL) issued the first-ever hazard alert for heat, affirming that workers have heat-related protections under federal law.
In California, employers are required to take these four steps to prevent heat illnesses to protect outdoor workers:
Training: Train all employees and the management team about heat illness prevention.
Water: Provide enough water so that each employee can drink at least 1 quart per hour, or four 8-ounce glasses, of water per hour, and encourage them to do so.
Shade: If working outside, provide access to shade and encourage employees to take a cool-down rest in the shade for at least 5 minutes. They should not wait until they feel sick to cool down.
Planning: Develop and implement written procedures for complying with the Cal/OSHA Heat Illnesses Prevention Standards.
Remember, heat-related illnesses and death are preventable with proper planning, education, and action!
New Form I-9 Coming
Along with Remote Review Rules
For some time now, employers have been using the current 2019 Form I-9 which was set to expire on October 31, 2022. The expiration of that form was extended to October 31, 2023.
On July 21, 2023, the United States Citizenship and Immigration Services (USCIS) announced that it will unveil a new edition of Form I-9 on August 1, 2023. Employers may begin using the new edition beginning Aug. 1, 2023, but may continue to use the 2019 version of the form through Oct. 31, 2023. Beginning Nov. 1, 2023, only the new Form I‑9 dated ”08/01/2023” may be used. The version date can be found at the lower left corner of the form.
There are a number of changes to the form, including reducing the Sections 1 and 2 to a single page. But the other major change is that the USCIS will allow an “alternative procedure” or “permanent virtual verification” where qualifying employers may inspect Form I-9 virtually rather than through physical verification. But there’s a catch…
To use the alternative procedure, a qualifying employer:
Must be enrolled in E-Verify, and remain in good standing and compliance with all requirements of the E-Verify program.
Must complete an E-Verify training as part of the E-Verify enrollment process.
Must use the alternative procedure consistently for all employees at a given worksite or use it only for remote employees, so long as the employers do not “adopt such a practice for a discriminatory purpose or treat employees differently based on their citizenship, immigration status, or national origin.”
The qualifying employer can examine copies of an employee’s identity and employment authorization documents, conduct a live video meeting with the employee, and create an E-Verify case if the employee is newly hired. Subsequently, copies of the relevant documents must be retained by the employer and made available for inspection in the event of an audit. The document review process and I-9 verification must still be completed within three business days of the first date of employment.
Do I Really Have to Accommodate
a Religious Accommodation Request?
We all know employers must reasonably accommodate workers with disabilities unless doing so presents an undue hardship.
However, what if you receive a religious accommodation request for time off to attend religious services, additional break time and a space for prayers through the day or something similar?
Must you accommodate the request?
The U.S. Supreme Court just weighed in last month and lowered the bar for religious accommodation. Per Justice Samuel Alito, undue hardship, in a religious discrimination context is, “when burden is substantial in the overall context of an employer’s business.” The high court expects courts, and therefore employers wishing to comply with this legal requirement, to consider the practical impact of the accommodation in light of the “employer’s nature, size and operating cost”.
In short, it is not sufficient to deny a religious accommodation request merely because it is inconvenient or requires disruption of work schedules. An employer will be hard-pressed to defend denial of a reasonable request that does not impact its business substantially.
So, what to do?
First, always accept an employee’s accommodation request. We recommend you accept the request and do not comment in the moment on your ability to either accommodate the request or not; instead, commit to respond back promptly.
Consider the request – is it one or more days off you can approve?; is it a modification to a start or end time you can make?; etc.
If the accommodation is so onerous and you are unable to accommodate it as submitted, consider options. Could you offer three days off versus the five requested, etc.? Perhaps you can reach a compromise.
Before responding to the employee, call us to help frame your response.
Ideally, you will want to respond back in writing to prevent any misunderstanding.
Remember, employers have the right to deny a religious accommodation request. That said, carefully consider the business impact of an accommodation and your options. Then, proceed carefully.
Pregnancy Workers Fairness Act (PWFA)
The Pregnancy Workers Fairness Act is a new federal law that requires covered employers to provide “reasonable accommodations” to an employee’s limitations related to pregnancy, childbirth, or related medical conditions.
Q.When did this law take effect? A. This law took effect on June 27, 2023.
Q.Who are covered employers? A. Covered employers include employers with 15 or more employees.
Q.Who does this law protect? A. The PWFA protects employees and applicants of “covered employers” who have known limitations related to pregnancy, childbirth, or related medical conditions.
Q.What is the covered employer required to do if an employee requests an accommodation under this law? A. The employer is required to engage in the interactive process with the employee to understand the request and to explore how the employee can be reasonably accommodated. The employer may not make a decision before engaging in the interactive process with the employee. The employer may not place employees impacted by pregnancy on a leave as an accommodation.
Q. What are “reasonable accommodations”? A. “Reasonable accommodations” are changes to the work environment or the way things are usually done at work.
Some examples include:
allowing employees to sit or drink water
providing closer parking spaces
offering flexible working hours
providing appropriately sized uniforms and safety apparel
allowing employees additional break time to use the bathroom, eat, and rest
excusing employees from strenuous activities or activities that involve exposure to compounds not safe for pregnancy
giving leave or time off to recover from childbirth
Please note, these are not the only possible accommodations to consider.
Q. Can employees be denied an accommodation under this law? A. Yes, but the employers have to show that the accommodation will cause the employer an “undue hardship” to their business operations.
Q. What should I do to comply with this law? A. Review your handbook/policies to make sure to include this law in your accommodation process. Managers should also be trained and reminded to go to HR if they receive any accommodation requests.
The Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act took effect on April 28, 2023. Although there is already a law under the Affordable Care Act (ACA) that requires employers to provide accommodation to breastfeeding parents, this expansion to the Fair Labor Standards Act provides additional workplace protections for lactating employees. The Act requires employers to provide all employees who are nursing with reasonable time and private space, other than a bathroom, to express breast milk.
The PUMP Act applies to employers of all sizes covered by the Fair Labor Standards Act (FLSA) and covers all employees, including exempt and non-exempt workers, except airline flight crew members (flight attendants and pilots) and certain railroad and motorcoach employees.
Whether you are using pen and paper or a software platform to conduct your performance evaluations, SMART goals are a concise and easy method to measure progress and gauge performance. The acronym SMART stands for:
Specific: Be specific about the goals to be achieved. What needs to be accomplished and what steps need to be taken to achieve the goals? Example: Increase production numbers by procuring more efficient widget machines.
Measurable: This is a quantifiable measure. Example: Procuring 2 new widget machines will allow us to increase the production of widgets from 500 to 1000.
Achievable: Is the goal realistic and can it be reasonably accomplished? Example: Procuring 2 new widget machines will allow us to reach an achievable goal of doubling our widgets.
Relevant: What is the purpose of the goal? Example: Doubling our widget production will allow us to meet customer orders.
Time-bound: What is the timeline to complete the goal? Example: Procuring 2 new widget machines by the end of Q4 will allow us to increase the production of widgets from 500 to 1000 in Q1 next year.
Things to Remember
Labor Law Posters
There were several mid-year law changes. Have your labor law posters been updated to be current with the recent law changes?
Questions? Contact Us!
We invite you to reach out to us for support on matters such as reviewing your employee handbook, scheduling and training employees on Harassment Prevention Training, or any other HR matters. Please feel to reach out to us at [email protected] for support.
Saturday, 8/6 — Women’s Equality Day
Monday, 9/4 — Labor Day
Saturday, 9/23 — First Day of Autumn
Saturday, 9/30 — Summary Annual Report to Be Furnished to Covered Retirement and Welfare Benefit Plan Participants
Monday, 10/9 — Columbus Day and Indigenous People’s Day
Tuesday, 10/31 — Halloween
This publication is intended to provide general information only and is not intended as a source of legal advice. You should not assume that any information included applies to your specific situation. Accordingly, you should not use this information as a substitute for legal advice from a licensed attorney.