HR News

This week the Department of Health extended the federal Public Health Emergency yet again. The public health emergency was initially declared in January 2020, when the coronavirus pandemic began. It has been renewed each quarter since and was due to expire on April 16. Effective 4/16/2022, it will be extended for 90 days, through mid-July. The government indicated they would give states 60 days notice prior to termination or expiration. Keep in mind that in Colorado, that means employer’s obligation to provide PHE pay for applicable COVID related reasons extends for four weeks beyond the ending of any federal PHE, so this puts us at an obligation not ending sooner than August 15, 2022. We will update you when the federal PHE does eventually expire.

On January 14th, 2022, the U.S. Department of Health and Human Services extended the COVID-19 Public Health Emergency (PHE) for an additional 90 days. In Colorado, the Healthy Family Workplaces Act mandates supplemental PHE pay for the following reasons:

• illness with COVID symptoms
• quarantining or isolating due to COVID exposure
• COVID testing
• vaccination and side effects
• inability to work due to health conditions that may increase susceptibility or risk of COVID
• COVID-related needs of family (illness, school closure, etc.). 

The extension of the federal PHE means that the PHE will remain in effect until at least April 16, 2022, and the HFWA COVID-19 pay requirement will then continue another four weeks following that date. Keep in mind, however, that there is no guarantee the federal PHE will not be extended again, hence extending Colorado’s mandatory PHE pay requirement.

Mayor Michael B. Hancock announced January 31, 2022 that Denver’s face covering order will expire on Thursday, Feb. 3, 2022. The public health order requiring face coverings indoors, or proof of vaccination in lieu of face coverings, will not be extended. The order was initially implemented in November, and was extended in December. Employers may choose to take the approach of continuing to require vaccines and/or masks.

In a 6-3 decision on January 13^th, the Supreme Court voted to block the OSHA ETS that would have required businesses with 100 or more employees to implement systems by early February to either ensure the vaccination status of employees or require weekly testing for COVID-19 (vaccine status was to be determined starting January 10th, 2022).

The decision left many employers and employees alike wondering what comes next. There are still many state, local and industry level rules and recommendations employers must consider. Many private companies have already adopted internal policies regarding vaccinations and testing, some that align with the intended policies of the ETS. In addition, the CMS (Centers for Medicare and Medicaid Services) was granted the ability to require COVID-19 vaccinations for health care workers at providers and suppliers.

In the coming months, OSHA may consider a permanent vaccine-or-testing requirement, as the original ETS was only intended to be in place for 6 months as a temporary solution. The agency can expect similar efforts to overturn further initiatives, and was recently seeking comments and input on a more permanent proposal.

For now, though, the ruling means employers who previously made plans to ensure compliance with the “vaccine or test” mandate will not be tasked with requiring such measures.

A ruling that requires workers at companies with 100 or more employees to be vaccinated against COVID-19 or undergo weekly testing is back on.

On Friday evening, the 6th Circuit Court of Appeals lifted a stay on the rule. It had been blocked on Nov. 6, a day after it was formally issued by the federal Occupational Safety and Health Administration. Next day, more than a dozen groups asked the Supreme court for a new halt of the ruling.

The DOL announced that OSHA would not issue citations for noncompliance with the testing requirement before Feb. 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance” with the rule. The rule requires company’s with 100+ employees to ensure each employee is either vaccinated or if unvaccinated that they are tested weekly for COVID-19. They must also enforce a mask mandate for unvaccinated workers (keeping in mind that some local and city ordinances currently require indoor masks regardless of vaccination status). These larger employers must begin compliance as of January 10, 2022.

Denver Public Health and Environment has mandated that masks be worn in all public spaces effective November 24^th. The order follows:

https://www.denvergov.org/files/assets/public/covid19/documents/public-orders/pho-face-covering-order-20211123.pdf

The Jeffco Board of Health passed a public health order Monday evening that requires masks in public indoor spaces for those 3 years old and older. The Tri-County Health Department, which covers Arapahoe and Adams counties, passed a similar measure shortly after the Jeffco vote. That order applies to people 2 years and older. This order goes into effect on Wednesday, November 24, 2021, at 12:01AM MST and will remain in effect at least until 01/03/2022. https://www.tchd.org/CivicAlerts.aspx?AID=483

Each of these counties orders contains a “vax or mask” provision. In Denver, “Fully Vaccinated Facility,”  as  used in this  Order, means  any  indoor  facility or portion of  an  indoor  facility where  the  owner,  operator  or  manager  has  verified that  at  least  95%  of  the  persons  within the  facility (including employees, invitees, attendees, patrons, customers, and any other  person entering  the facility)  have been  fully  vaccinated.     To be  considered a  Fully Vaccinated Facility, the  owner, operator  or  manager  of  the  facility must  notify DDPHE  of the  name  of  the  facility, address  of  the  facility, type  of  facility (office  building, gym, etc), contact  information of  the  person at  the  facility responsible  for verifying the  vaccination  status  of  persons  within  the  facility, and the  date  the facility began collecting vaccination status. “Fully  vaccinated” means  two  weeks  after  a person’s  second  dose in  a two-dose series  and  two  weeks  after  a single-dose vaccine.  

These orders affect your businesses and your employees who are working in any public area in any of the noted counties. Boulder County has had an indoor mask mandate prior to these new issuances.

We will continue to monitor the situation and provide additional information, as necessary.

What is form DR 0004?

Form DR 0004 is the new Colorado withholding certificate that is optional for employees to complete starting in 2022. It is not meant to replace form W-4 for Colorado withholding, but is meant to help employees in a few specific situations who may want to fine-tune their Colorado withholding. If an employee asks about adjusting their withholding, the employer is required to provide form DR 0004 to them. 

How does form DR 0004 change the Colorado withholding calculation?

The Colorado Withholding Worksheet for Employers (DR 1098) prescribes the calculation employers are required to use. It has been updated with directions for entering the amounts from form DR 0004 into the existing calculation steps. 

• If an employee completes form DR 0004, the employer is required to calculate their Colorado withholding using the amounts entered on that DR 0004, as prescribed in the DR 1098 worksheet.
• If an employee does not complete form DR 0004, the employer is required to calculate their Colorado withholding using the amounts prescribed in the DR 1098 worksheet based on their IRS form W-4.

Reasons an employee may want to complete form DR 0004:

• They earn most of their income from one job
• They expect significant income from sources that will not have withholding
• They expect to claim federal itemized deductions
• They expect to claim the new Colorado child tax credit

Reasons an employee may want to complete a new Federal W-4 and/or Colorado DR 0004:

• Withholding certificate was last updated 3 or more years ago
• Wages or other income changes significantly
• Number of jobs changes
• Filing status changes (single, married filing joint, etc.)
• Federal deductions change significantly
• Colorado child tax credit qualifications change

This optional form will soon be available on the InTANDEM HR employee self-service portal.

The Fifth Circuit Court of Appeals has blocked OSHA from implementing and enforcing the vaccine mandate that affects employers with 100 or more employees.  

Several courts filed challenges to the rule. When something like this happens, a “lottery” system is utilized to consolidate all of the appeals before the circuit court is selected in the blind lottery, which will then hear the challenge to the rule.  That lottery is expected to take place on or about Monday, November 16th. 

If the Fifth Circuit is not selected in the lottery, then another appeals court will have an opportunity to issue the controlling decision. The Supreme Court will likely ultimately rule on whether or not the President Biden’s COVID vaccine-or-testing policy for businesses with at least 100 employees will stand. Covered employers should still prepare for the upcoming deadlines (January 4th for the mandate) while this issue is bouncing around the courts.  

The EEOC alleged in its first disability accommodation lawsuit connected to the pandemic that a health and safety manager in Georgia was fired after her employer denied her request to continue working from home because her heart condition heightened her Covid-19 risk.

The complaint states that the facility management company with headquarters in San Antonio, denied Ronisha Moncrief’s accommodation request under the Americans with Disabilities Act. The Covid-19 pandemic led to teleworking arrangements for many employees. Even prior to the pandemic the EEOC and disability advocates have looked to telework as a reasonable disability accommodation.

In this particular case, of employees were required to work remotely from March 2020 to June 2020. When the facility reopened, she asked to work remotely two days per week and take frequent breaks while working on-site because of her pulmonary condition, which causes her to have difficulty breathing, according to the EEOC’s complaint. The agency states that though other employees were allowed to continue to work from home, her request was denied and she was fired, the agency.

As this and more similar actions play out in court it will provide employers with more of a tangible framework for looking at ADA telework requests. The ADA requires that employers make reasonable accommodations for employees to perform their essential job functions.

Any of our clients or employees who have questions regarding reasonable accommodations should contact us for assistance in navigating the law and each specific request.