Legislative Updates

The CDC is shortening the recommended time for isolation from 10 days for people with COVID-19 to 5 days, if asymptomatic, followed by 5 days of wearing a mask when around others. The change is motivated by science demonstrating that the majority of SARS-CoV-2 transmission occurs early in the course of illness, generally in the 1-2 days prior to onset of symptoms and the 2-3 days after. Therefore, people who test positive should isolate for 5 days and, if asymptomatic at that time, they may leave isolation if they can continue to mask for 5 days to minimize the risk of infecting others.

The U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance today adding a new section to clarify under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

EEOC’s new questions and answers focus broadly on COVID-19 and the definition of disability under Title I of the ADA and Section 501 of the Rehabilitation Act, which both address employment discrimination. The updates also provide examples illustrating how an individual diagnosed with COVID-19 or a post-COVID condition could be considered to have a disability under the laws the EEOC enforces.

Key information includes:

• In some cases, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability.
• An applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks—with no other consequences—will not have an ADA disability that could make someone eligible to receive a reasonable accommodation.
• Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer. But, employers can choose to do more than the ADA requires.
• An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.

On Friday, November 19, the House of Representatives voted 220-213 to pass H.R. 5376, the Build Back Better Act. The bill now awaits consideration in the Senate, where significant changes are expected. 

Some proposals in the Build Back Better Act are likely to exacerbate the impact of the pandemic during a time when many businesses are recovering financially and facing historic talent shortages.

The paid leave provision in this legislation is misaligned with the Family Medical Leave Act and out of touch with the diversity of this country’s workplaces. Additionally, the bill includes provisions that would increase health care costs and upset the balance of labor-management relations.  It also proposes exorbitant civil liabilities for employers of all sizes.

Click here to take action with SHRM on the Build Back Better Act and contact your senators or text SHRM to 52886.

Congress can find more balance by acknowledging that meeting the needs of our country’s workplaces requires flexibility. Balanced legislation also requires an acknowledgement that employers are committed to meeting the needs of their employees in a manner that also meets the needs of the business.

Thank you for helping us create better workplaces for a better world.

Sincerely,

Emily M. Dickens
Chief of Staff, Head of Government Affairs and Corporate Secretary

Effective January 30, 2022, the U.S. Department of Labor's final rule, in conjunction with Executive Order 14026:

• Increases the hourly minimum wage for certain federal contractors to $15 beginning January 30, 2022, with future inflation-based increases. 
• Eliminates the tipped minimum wage for federal contractors by 2024.  
• Ensures a $15 minimum wage for workers with disabilities performing work on or in connection with covered contracts.  
• Restores minimum wage protections to outfitters and guides operating on federal lands.  

On Friday, November 19, the House of Representatives voted 220-213 to pass H.R. 5376, the Build Back Better Act. The bill now awaits consideration in the Senate where significant changes are expected. 

The following are provisions that may affect your workplace should the Build Back Better Act become law: 

• Requires any worker who provides at least 4 hours of caregiving a week be granted paid leave regardless of employer size, length of service, job type or worker classification.
• Provides the National Labor Relations Board the ability to levy fines and increases the maximum penalties for a range of labor law violations by tenfold.
• Reduces affordability caps of employer-provided health care premiums from 9.5% to 8.5% and grants the Department of Labor the authority to levy civil monetary penalties for mental health parity violations.
  
• Grants work authorization to those who have entered the United States prior to January 1, 2011 and allows for the reissuance of unused visas.
  
• Provides approximately $14.4 billion for workforce development, including approximately $13 billion to the Department of Labor and $1.4 billion to the Department of Education.

SHRM's has provided a full summary on the employer provisions included in the House-passed bill: click here.

Today, in accordance with SDCL 34-20G and the unwavering commitment of Governor Noem and the South Dakota Department of Health to deliver a safe and responsible medical cannabis program, the first medical cannabis patient cards were printed and issued. The first card issued went to a resident of Day County. Following its issuance, the following statement was released: 

“Today marks the culmination of months of hard work in preparation for the kickoff of a responsive and efficient medical cannabis program for eligible South Dakotans,” said Geno Adams, Medical Cannabis Program Administrator. “In the months ahead, we will continue to ensure that patients and their caregivers, can continue to obtain medical cannabis permits in accordance with their written certifications.”

Patients, caregivers, and medical providers who wish to get more information on how to participate in South Dakota’s medical cannabis program can visit: MedCannabis.sd.gov. The site features a ‘Frequently Asked Questions’ section, as well as a section for establishments, that is continuously updated by the Department.

All patients and caregivers who apply and are issued a medical cannabis card will also receive a flyer with helpful tips on the importance of safe and responsible storage of their medical cannabis at their homes. To view the flyer, click here.

Employees can put an extra $100 into their health care flexible spending accounts (health FSAs) next year, the IRS announced on Nov. 10, as the annual contribution limit rises to $2,850, up from $2,750. But with open enrollment for the 2022 benefits year already under way at many organizations, the increase may have come too late for some employees to take advantage of it.

If the employer's plan permits the carryover of unused health FSA amounts, the maximum carryover amount rises to $570, up from $550, but COVID-19 relief extends the allowable carryover amount further, as discussed below.

Tax-exclusion limits for employer-sponsored commuting benefits and adoption assistance programs are also rising for 2022, the IRS announced in Revenue Procedure 2021-45.

Employee 401(k) contributions for 2022 will rise by $1,000 to $20,500 with an additional $6,500 "catch-up" contribution allowed for those age 50 or older.