PO Box 68 • Dublin OH 43017 • Ph: 800-606-6332 • Fax: 614-889-0463 • www.kiawa.org • info@amgllcusa.com

KIAW NEWSLETTER JANUARY 2020

KIAW Kentucky-IndianaAutomotive Wholesalers

As you no doubt have heard, the United States Department of Labor recently announced

changes to federal wage and hour regulations that have been labeled the “new overtime rule.” These changes to took effect on January 1, 2020. This “new” overtime rule replaces the previous “new” overtime rule that was scheduled to take effect on December 1, 2016 but never did. A court blocked the implementation of the 2016 version.

Although the DOL’s second attempt to implement a new overtime rule may not be welcome news to businesses, the news is not that bad. For one, those businesses that geared up for the first iteration of the new overtime rule likely have a big head start on complying with version two.

For small-to-midsize businesses, these changes should have minimal impact. For large employers with larger support operations, the impact will be greater due to the number of affected employees.

Blueprint For Action

The first step in dealing with the upcoming changes is to understand what they are and what they are not. They are not a change to current overtime laws and they are not an implementation of new overtime laws. Instead, these revised regulations are (primarily) an increase in the minimum salary that an employee must receive to be eligible for one of the “white collar” exemptions, assuming all other requirements are met. To be clear, employees do not qualify for the white-collar exemption or any other for that matter simply because the employee is paid a salary.

White-collar exemptions include the executive,

professional, and administrative exemptions. Positions that most generally fall under one of the white-collar exemptions are general managers, department managers, controllers, and human resources. Corporate offices may have additional white-collar positions that will be affected by the new regulations.

As with all exemptions, neither the job title nor the job description is determinative as to whether an employee qualifies for a white-collar (or any other) exemption. Likewise, a businesses’s longstanding pay practice or that of its competitors is not determinative as to exempt status. Instead, to be eligible for an exemption, the employee’s primary job duties must meet both state and federal wage and hour law requirements (duties test), and the employee must be paid in a manner consistent with the legal requirements for the exemption (pay test).

The previous minimum weekly salary requirement for white-collar exempt employees was $455. As of January 1, 2020, the minimum salary requirement increased to $684 per week. In response to this increase in the minimum salary requirement, some businesses have decided to treat employees who would qualify for a white-collar exemption as nonexempt and pay them an overtime premium when due. For this reason, the upcoming changes to the regulations have been dubbed the “new overtime rule.”

Although treating white-collar exempt employees as hourly nonexempt is a viable and legal option, there may be other options available for businesses that do not want to increase salaries to meet the new minimum requirement. One option is to consider a fluctuating

Continues on Page 3 . . .

The Association has retained the legal services of Fisher & Phillips to provide members access to the expertise of Fisher & Phillips involving employment and labor law issues. Through the Association Legal Hotline, 614-889-1309, members can call to get answers to employment law, labor and human resource questions. Members will get responsive, accurate answers to employment law questions about issues including Americans with Disabilities Act, Family Medical Leave Act, Hiring and Firing, OSHA, Wage and Hour Issues, and more. The Association Employment & Labor Law Hotline does not claim to offer a comprehensive legal service. If your situation requires legal research and consultation, an attorney from Fisher & Phillips will advise you. There is no charge for the initial telephone conference. If specific legal advice to a specific situation is needed, Fisher & Phillips will explain your options and any potential fees. The information in this article is provided for informational purposes only. It does not constitute legal advice. You should consult with a qualified lawyer of your choice who is familiar with all of the facts of your situation before making a decision about any legal matter.

What You Should Know About The New(est) “New Overtime Rule”

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workweek pay plan. Another option is to treat the employee as a commission-paid employee. Both of these options have specific requirements that must be met. And, as with all other aspects of employment law, you should consider state and local law before making any changes and consult with legal counsel with wage and hour law experience.

Stay The Course: Many Things Will Still Be The

Same

The good news is that the minimum salary requirement increase is the only aspect of the white-collar exemptions that will change effective January 1, 2020. The duties requirements, which examine whether the specific activities performed by the workers qualify them for the exemption, are unchanged.

Further, the only job positions affected by the upcoming changes are those mentioned above that are treated as exempt under a white-collar exemption. The changes are not a wide-ranging modification to the exemptions currently available to businesses. No other job position is affected by these changes, even if all or part of the compensation for that position is paid in the form of a salary.

For example, salespersons, service advisors, finance managers, and parts persons who are paid a salary as some or all of their compensation are not impacted by this change and businesses are not required to change or increase their salaries. Of course, for the employees in each of these positions to qualify for any exemption, they must meet the eligibility requirements for that specific exemption.

Are You Otherwise In Compliance?

We recommend that businesses use the upcoming changes as an opportunity to audit their federal and state wage and hour compliance, even if they performed an audit in preparation for the 2016 implementation of the new overtime rule. During that process, a number of businesses reviewed and revisited their classification and pay issues and made necessary changes in areas not directly impacted by the new rules.

With the renewed focus the change will have on wage and hour compliance, we believe this is the perfect time to correct any mistakes and to take steps to avoid potential liability for non-compliance. Your favorite Fisher Phillips attorney will be happy to assist you along the way.

For more information, contact the author at TCoffey@fisherphillips.com or 404.240.4222.

IRS ISSUES MILEAGE RATES FOR 2020

The IRS issued the 2020 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes.

Beginning on Jan. 1, 2020, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:

57.5¢ per mile driven for business use, down one half of a cent �from the rate for 2019,

17¢ per mile driven for medical or moving purposes, down �three cents from the rate for 2019, and

14¢ per mile driven in service of charitable organizations. �

The business mileage rate decreased one half of a cent for business travel driven and three cents for medical and certain moving expense from the rates for 2019. The charitable rate is set by statute and remains unchanged.

It is important to note that under the Tax Cuts and Jobs Act, taxpayers cannot claim a miscellaneous itemized deduction for unreimbursed employee travel expenses. Taxpayers also cannot claim a deduction for moving expenses, except members of the Armed Forces on active duty moving under orders to a permanent change of station. For more details, see Rev. Proc. 2019-46.

Taxpayers always have the option of calculating the actual costs of using their vehicle rather than using the standard mileage rates.

A taxpayer may not use the business standard mileage rate for a vehicle after using any depreciation method under the Modified Accelerated Cost Recovery System (MACRS) or after claiming a Section 179 deduction for that vehicle. In addition, the business standard mileage rate cannot be used for more than five vehicles used simultaneously. These and other limitations are described in section 4.05 of Rev. Proc. 2019-46. Courtesy of IRS

Continued from Page 1

New(est) “New Overtime Rule”

Advisory CouncilKevin Roppel

Roppel Industries • Louisville, KYPhone: 502-581-1004

Staff Kim Rominger Bill Garling Executive Director Chief Operating Officer

Dennis Alford Jenny Archibald Chief Marketing Officer Administrative Asst.

PO Box 68 • 6124 Avery Road • Dublin, Ohio 43017Phone: 614-889-1309 Fax: 614-889-0463

MISSION STATEMENT: The mission of KIAW is to advance the interests of the automotive aftermarket i ndus t r y by p rov id ing bene f i t s and se rv i ces t ha t imp rove bus iness p rospe r i t y and e f f i c i ency. .

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Economic Nexus:

On June 21, 2018, the U.S. Supreme Court overturned a 1992 decision and a more than 50-year standard, ruling that states can force out of state dealers to charge, collect and remit sales taxes on goods and services sold to customers inside their states. The decision was driven by internet sales, but applies to all businesses, and has generated a tsunami of state and other jurisdictional legislation that is having a profound impact—among the most severe impact—on our industry.

In a 5-4 decision the Supreme Court ruled in Wayfair v. South Dakota that the “sales tax nexus” standard previously articulated by the Court in Quill v. North Dakota was “unsound and incorrect.” The Quill ruling held that a state cannot require an out-of-state seller with no physical presence in the state to collect and remit sales taxes on goods shipped to customers there. The Wayfair decision has added the concept of economic nexus to the rules relating to physical nexus; accordingly, dealers who do business with customers from another state could be responsible for taxes in that state despite not having a physical presence in that state.

Each state—and locale—will set its own standard.

When we first wrote about this as the Supreme Court made its ruling, we proposed that “each state—and locality—will set its own standard.” It was an easy call, as it was estimated that an additional $53 billion in sales taxes would now be remitted and all states are always looking for ways to increase revenues. Now just a year and a half later, most states have implemented so-called “economic nexus legislation” governing when and how much companies doing business in their states will have to pay. In many locales, the legislation goes beyond sales tax to require companies—and owners of companies qualified as pass-through entities—to file income tax returns while they keep up with registrations, licensing fees and other required payments.

In South Dakota, for example, the economic nexus threshold for owing sales taxes is $100,000 of gross sales or 200-plus transactions over any 365-day look-back period. Exceed either and you are required to register, charge, collect and submit the 4.5 percent South Dakota sales tax. [A chart for state-by-state thresholds can be found on the front page of the Association website, www.UNITEDeda.com]. Of note, North Dakota implemented the same requirements as its namesake to the south on the very day of the Supreme Court ruling.

As states implement these laws, they’re being more

By Rex A. Collins CPA, CVAHBK Dealership Industry Group

aggressive. Alaska doesn’t have a sales tax but is considering allowing its cities to impose sales taxes on out-of-state sellers. Implementing economic nexus solely at the local level Kansas has eliminated the idea of a threshold in their new law. As October 1, 2019, businesses selling into the state are being charged sales tax from the very first dollar of sales (it should be noted that the longevity of this law is yet to be seen since the Kansas Attorney General has renounced Kansas’s provision, the Department of Revenue however insists on its validity). In the spirit of upping the ante with taxes on out-of-state merchandisers other than sales taxes, New York issued regulations this fall requiring businesses with a physical or “economic” presence in the state to file and pay income taxes—and New York is not alone in that initiative.

Physical presence and exempt sales

Don’t let the out-of-state sales tax laws allow you to think differently about physical presence. Physical presence—an officer, an employee, a warehouse, an affiliate, inventory storage, drop shipping—still triggers the need for filing for sales taxes and registration. The difference is in how it is defined. For example, if you send a technician to do a repair in another sate that has an income tax you will owe income taxes there. The issue can get highly complex: figure, for example, a dealer renting construction equipment being used by the customer in multiple states. The presence of that equipment creates a “physical presence,” and therefore an economic nexus obligation in each of those states.

While sales of exempted equipment, such as agricultural equipment, remain sales tax exempt, they will count toward a threshold. Consider the dealer who after selling $90,000 of agriculture equipment tax exempt into Michigan—Michigan employs the $100,000 gross sales threshold—sells a taxable item, say an ATV, there for $20,000. The initial tax-exempt amount was applied to the threshold and the dealer had to pay the economic nexus tax on the $20,000 because this transaction put the dealer over the threshold. Generally, rules about exemptions are being tightened; dealers need to know the rules for every state where they sell tax-exempt equipment. There are currently five states who have a taxable sales threshold, and not a gross sales threshold, those states are: North Dakota, New Mexico, Oklahoma, Rhode Island, and Utah. It is yet to be seen if these states will maintain their taxable vs. gross sales threshold or if more states will adopt a taxable sales threshold in the future.

A Tsunami of Tax Regulations on Dealers Doing Business with Customers from Other States

Continued on Page 7 . . .

Now is a good time to check your labor law posters and make sure they are up-to-date. If you have purchased your posters through the Association, then all you need to do is check the version number in the lower right corner.

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How to contend

The amount of legislation and tax data that many dealers are having to track is staggering. Currently, the DMS providers are finding it difficult to capture and keep current on this onslaught of state and local jurisdictional tax data. For now, dealers can limit their exposure with thorough documentation. Clearly establish on your sales documents where the client takes possession of the product—that is, where the transfer of ownership takes place.

Shipping presents its own challenges. Ideally, use a third-party carrier to deliver your products. That keeps you from having a physical presence in that state. However, if you use your own rolling stock to deliver equipment, have the driver:

� Take an affidavit to be signed by the customer noting where and when the customer takes possession.

� Take a cell phone photo of the equipment at the location, ensuring that the photo includes the location.

� Stop at a gas station or local store and buy something, anything, so that you have a receipt proving they were there.

To help your dealership get and remain in compliance with such an entangling mass of rules, develop answers to the following questions:

� Do you know your business footprint, where you do business?

� What tools do you use to identify states where registration and compliance is required?

� Do you know the taxable status of your products in your customers’ states?

� Do you need to separate goods from services on your sales invoices?

� Do you need to collect exemption or resale certificates in states where historically you have not been required to do so?

If there is any good news about the economic nexus laws, it is that the states and other jurisdictions cannot charge sales taxes retroactively—only from the June 2018 date of the Supreme Court ruling forward.

There appears to be no slowing of the tsunami of tax regulations on out-of-state vendors—and not understanding your obligations can be devastating. Ask the Indiana dealer who incorrectly remitted $250,000 to Illinois for taxes that should have been remitted to Indiana, then lacked the standing to get it back. Or the multiple Indiana dealers getting a half million dollar assessments for deliveries into Kentucky and Ohio. Or the Pennsylvania dealer with a $110,000 assessment. Or the North Carolina dealer who paid$1.5 million in taxes to various states for rental equipment being used there. Dealers’ only defense is to know their obligations and ensure they recover those costs in their billing.

About the AuthorRex Collins is a Principal at HBK CPAs and Consultants. He directs HBK’s National Dealership Industry Group, which provides tax, accounting, transactional and operational consulting exclusively to dealers. Rex can be reached by email at rcollins@hbkcpa.com, or by phone at 317-504-7900.

Economic Nexus: . . . continued from Page 5

MEDICAL MARIJUANA LAWS CREATING NEW PROTECTED CLASS OF EMPLOYEES

Thirty-three states have some form of legalized recreational or medical marijuana use as of April 2019, requiring many U.S. employers to rethink their rules and approaches when it comes to workers’ use of marijuana. In many of these states, medical marijuana laws are essentially creating a new class of workers protected from discrimination. In other words, when employees test positive for marijuana use, employers must now be careful if they take an adverse action, such as firing or disciplining, against that employee for the single test. Arizona, which has protected status laws for medical marijuana users, recently upheld in Whitemire v. Wal-mart Stores that a medical marijuana card-holding worker was wronged for failing one test, despite Walmart’s impression that the employee’s THC levels were elevated enough to be under the influence while at work. The case

signifies that employers must be careful that any reasonable suspicions about consumption on the job are documented and articulated uniformly by appropriate human resource professionals.

“Ten states have employment protections for medical marijuana users, and we predict that will only increase as more protective statutes are passed,” comments Jeremy Robb, an employment attorney at Nilan Johnson Lewis, who interprets marijuana laws for multi-state employers. He recommends employers review their drug testing policies to ensure they are compliant with state laws, even in those states that do not have specific employment protection carveouts in medical marijuana laws. “For example, Massachusetts allows employees to file discrimination claims based on a positive test if they have a disability,” adds Robb. To speak with Jeremy Robb about drug testing policy compliance, contact him at jrobb@nilanjohnson.com or 612.305.7716. Source: Nilan Johnson Lewis

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Every Tuesday, KIAW provides members with industry news and information that is important to the automotive aftermarket industry. Here are just a few of the facts you have received in the last month. Check your email every Tuesday for the latest.

House approves fiscal 2020

transportation funding bill

Funding for freight safety programs would be increased and infrastructure grants would receive $1 billion under fiscal 2020 legislation the U.S. House of Representatives advanced Dec. 17. Watch for updates. Transport Topics

transporttation funding biill

Funding ffor freight safety programswould be iincn reased and inffrrastructure grants wouldd r eceive $1 bbillion underfiscal 2020 legisllatition the U.S. House of Representatives advanced Dec. 17.Watch for updates. Transport Topics

W-2 reporting requirements for

business owners

Over the years the IRS has issued regulations and notices which deal with W-2 reporting for owners of businesses. These notices simply reinforce advice that we have given our clients in the past and it is clear that you will need to take steps to comply with this guidance. Additionally, we want to remind you of the reporting requirements concerning company-provided fringe benefits and personal use of company-provided vehicles.

2 rreportinngg requuiri ementst for

sinness owwners

er the yeaars the IRSRS has isssued ulaatit ons andd nonotiticces whicchh deal h WW-2-2 reporting for owwners of sinessess. . These noticeces simply nforce addvivicece t thahat we have en our clients in the past and it clear that you will need to takeps to comply with this guidance. ditionally, we want to remind u of the reporting requirementsncerning company-provided ge benefits and personal use of

mpany provided vehicles

Weekly Bytes In ReviewIndustry News and Information

Impact of automated vehicles on

tech demands

In this new age of autonomous transportation, what will happen to your friendly neighborhood auto technician? It looks like they will be in high demand for the foreseeable future. TechRepublic estimates that 75,900 new jobs for skilled workers will be created over the next 10 years. To work on tomorrow’s automated vehicles, auto technicians need to learn new skills that can be applied across interconnected systems. These may include physics, math, machine learning, artificial intelligence (AI), data science, robotics, and a wide range of software applications. This set of talents is in demand but also in short supply, leaving repair shops with a persistent talent gap. And trade schools are rushing to keep up with demand. . TechForce Foundation

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this nnew age of auttonomous In nsportaation, what will hhappen to tranur friendly neighborhoood auto youhnician? ? It looks like theey will betechhigh deemand for the ffooreseeable in hure. TechhRepublic esttiimates that futu900 new jjobobs for skskilled workers 75,9

be created over the next 10 years.will work on tomorrow’s automated To icles, auto technicians need to veh

rn new skills that can be applied leaross interconnected systems. These acroy include physics, math, machine mayrning, artificial intelligence (AI), ra science, robotics, and a wide tage of software applications. This gof talents is in demand but also

short supply, leaving repair shopsh a persistent talent gap. And tradeools are rushing to keep up with

mand. . TechForce Foundation

Congress reaches deal on USMCA

Congress and the White House have come to an agreement on the United States-Mexico-Canada Agreement (USMCA), all but ensuring the President’s free trade pact will be finalized. The agreement, which was initially negotiated by the three North American nations more than a year ago, will now include stronger labor and environmental enforcement provisions, at the request of House Speaker Nancy Pelosi, D-CA, and House Democrats. Representatives from the U.S., Mexico and Canada traveled to Mexico City to sign the compromise agreement, which will then be voted on by each country’s legislature. Speaker Pelosi has informed her colleagues that she expects to schedule a vote in the House for some time this week. Auto Care Capital Report

House apappproves fifiscscal 2020

i f di bill

Congress and the White House have come to an agreement onthe United SStates-MeM xico-Canada Agreement (U(USMCA), all bbut ensuringthe Presideent’s free tradee pact will be finalizeed. The agreemeent, whichwas initiallly negotiated by the threeNorth Ammerican nations mmore thana year agoo, will now includee stronger labor and eenvironmental ennforcement provisions, ata the requeesst of HouseSpeaker Nancy y PeP losi, D-D-CCA, and HouseDemocrats. Representatives from theU.S., Mexico and Canada traveled toMexico City to sign the compromise agreement, which will then be voted onby each country’s legislature. Speaker Pelosi has informed her colleaguesthat she expects to schedule a vote in the House for some time this week.Auto Care Capital Report

U.S.-China Phase-One Agreement

Earlier this month, USTR announced that the U.S. had reached a phase-one trade agreement with China in areas of intellectual property, technology transfer, agriculture, financial services, and currency and foreign exchange. The agreement also includes China’s commitment to purchase U.S. goods and services. Although List 4 tariffs have been reduced, tariffs on List 1, 2 and 3 are not affected by phase-one and will remain at 25%. More information can be found in the phase-one fact sheet. AutoCare Association

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Congress reaches deal on USMCA

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U.S.-Chinnaa PPhase-One AgAgrer ement

Earlier ththis month, USTR annnouo ncedthat thhe U.S. hahadd reeacached a pphase-one ttrade aagreement t with CChina in arreas off intellectuala propperty, technnology transfer, agricuulture,financicial serviceces, andnd currenccy and foreign exchange. The agrereementalso incluludes China’s commmitment to purchase U.U.S. goodss a and services.Although List 4 tariffs have been reduced, tariffs on List 1, 2 and 3 arenot affected by phase-one and will remain at 25%. More information canbe found in the phase-one fact sheet.AutoCare Association

W-2s, 1099’s, W-3’s due by Jan. 31

Before the Protecting Americans from Tax Hikes (PATH) Act, employers generally had a longer period of time to file these forms. But the 2015 law made a permanent requirement for employers to file their copies of Form W-2, Wage and Tax Statement, and Form W-3, Transmittal of Wage and Tax Statements, with the Social Security Administration by Jan. 31. Certain Forms 1099-MISC, Miscellaneous Income, filed with the IRS to report non-employee compensation to independent contractors are also due at this time. IRS Newswire

fore the PProtectinng Ameericans Befm TTax Hikess (PATH) AAct, empployers fromneraally had a a longer pperiod oof time genfile tthese forrmsm . BuBut the 20015 law to fide aa p ermanent requiremment formaployerrs s to file their copieess of Formpem, Wage anand Tax Statatement, and 2,W-2

m W-3, Transmittal of Wage and TaxmForements, with the Social Security State

ministration by Jan. 31. CertainAdmms 1099-MISC, Miscellaneous Formome, filed with the IRS to report Inco-employee compensation to non-

ependent contractors are also due indehis time. at th IRS Newswire

State minimum wage increases

January 1

On Jan. 1, 2020, the minimum wage will increase in numerous states and cities throughout the country that have adopted their own minimum wage laws, which provide for a higher rate than the federal minimum wage of $7.25 per hour. In areas where minimum wage laws overlap, employees are entitled to receive the highest applicable rate. Here are two changes in our geographic area: Michigan, state-wide: $9.65 per hour. Ohio, state-wide: $8.70 per hour. PorterWright Employer Law Report

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e highheest applicable rate. HHere are theo chhaanges in oourur g geographihic area: twochiggan, stattee-wide: $9$9.65 per r hour.Micio, state-wwide: $8.700 per hour.OhirterrWright EEmployer Laaw RepoorrtPorrterrWrW ight EEmpm loyer LaLaw RepoortPor

Warning about public charging

stations

Travelers should avoid using public USB power charging stations in airports, hotels and other locations because they may contain dangerous malware. Consider these tips: TIPS: Use an AC power outlet, not a USB charging station. Take AC and car chargers for your devices when traveling. Consider buying a portable charger for emergencies. Juice-jacking is a real security threat, and travelers should certainly take note of these tips from the Los Angeles County District Attorney’s Office. However, this security threat is not new, and safety features have been added to iOS and Android operating systems in order to combat this sort of crime. Furthermore, little evidence exists that juice jacking is a widespread problem. Snopes

9

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veleers shouuld avoidd using public TravB ppower chargingg stations in USBportts, hoteels and otther locaations airpcausse theey mmay coontain becngerrous malwwararee. Considerr these dandans: TIPPS:tips Use an AC power r outlet,t a USSB B charging station..not Take ACd car chchargers for youour devicesandanden travelilingng.wh Considideer buying artable charger f for emergencies. porce-jacking is a real security threat, Juicd travelers should certainly take andte of these tips from the Los notgeles County District Attorney’s Ang

ffice. However, this security threat Offinot new, and safety features haveis nen added to iOS and Androidbeeerating systems in order to combat opes sort of crime. Furthermore, little thisdence exists that juice jacking is a evid

despread problem.wid Snopes

10

COMBATING THE FLU: RETAIL SECTOR EMPLOYERS AMONG MOST PRONE TO WORKPLACE DISRUPTIONS

In most workplaces across the country, a perfect attendance record will be met with applause. Employees who “tough it out” and sneeze their way through the workday are congratulated, while those who stay at home to nurse an illness might be viewed as “slackers” and a burden to the company. This institutionalized mentality, however, can actually do more harm than good.

According to the Harvard Business Review, “presenteeism” – the problem of employees being on the job but, because of illness or other medical conditions, not fully functioning – can cut individual productivity by one-third or more. In fact, presenteeism can be much costlier to employers than absenteeism. It’s estimated that absent workers cost employers around $150 billion annually, but those who come to work and are not fully productive, can cost employers roughly 10 times that amount.

A recent study conducted by researchers at Ball State University indicates this concern is elevated during periods of sustained economic growth like we’re experiencing now. The study found that a 1% increase in the employment rate correlates with increases in the number of influenza-related doctor visits by roughly 16%.

These concerns are particularly acute with flu season around the corner. Moreover, the retail sector is particularly susceptible to the crippling impact of a flu outbreak due to the high degree of interpersonal contact among employees and customers. For these reasons, retail employers should start devising plans to maintain productivity and keep the workplace flu-free. What are some factors you should be considering as part of this effort?

Can My Company Make Flu Vaccines Mandatory?

The CDC estimates that when employers require flu vaccinations, 85% of workers get one. When no such policy is in place, that number drops to 43%. While the numbers suggest that mandatory vaccination policies are the best line of defense against the flu, employers are encouraged to exercise caution when implementing such policies.

While it is permissible in most states for require your workforce to get vaccinated in order to stave off a flu outbreak before it even starts, each state treats the issue differently. In Ohio, for example, a bill is currently pending that would effectively bar employers from mandating that employees obtain vaccinations as a condition of employment.

In other states, certain employees (mainly healthcare workers) are required to get vaccinated. While such a requirement does not exist for employees in the retail sector, this does not mean retail employers are precluded

from instituting a mandatory vaccination policy – absent a state-specific prohibition against such policies.

Besides checking to determine whether your state allows mandatory vaccination policies (check with counsel if you’re unsure), here are some other factors to consider to ensure proper flexibility and to allow for exceptions under certain circumstances.

Requests For Accommodation

Before implementing a mandatory vaccination policy, create a process by which employees can request accommodations. Employees need to know where to turn if they need to ask for an accommodation. It is also advisable to have forms for employees to fill out to request a waiver from any vaccination requirement.

When Must An Accommodation Be Granted?

You have an obligation to accommodate disabilities or sincerely held religious beliefs. Remember that “religion” and “disability” can be interpreted broadly under most federal and state laws. By definition, “religion” includes “all aspects of religious observance and practice, as well as belief.” Moreover, according to the Equal Employment Opportunity Commission (EEOC), protected religions are not limited to major, well-recognized faiths but also include “religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.”

For example, a federal court in Ohio in 2012 addressed whether devotion to veganism could be deemed “religious.” The employee in Chenzira v. Cincinnati Children’s Hospital Medical Center was denied accommodation and terminated after refusing the flu vaccine because it would violate her vegan practice of refraining from all animal products and by-products. The employer discounted her veganism as a dietary preference or philosophical notion, but the court disagreed.

The court pointed out that the plaintiff cited religious passages in her request for accommodation. The court held that it was plausible that the employee “could subscribe to veganism with a sincerity equating that of traditional religious views,” particularly since she is not alone in holding to that belief.

What Accommodation Must Be Provided?

For an employee who declines to be vaccinated, the appropriate accommodation will depend on a variety of factors, including the nature of the employee’s position. Depending on the circumstances, appropriate accommodations may include modifying the employee’s work duties, finding an alternate version of the flu shot, transferring the employee to a vacant position, or providing a leave of absence. Once the accommodation is in place, you can continue working with the employee to make sure it remains effective and feasible.

11

What Does OSHA Have To Say About Flu Vaccinations?

The Occupational Safety and Health Act of 1970 (OSH Act) requires that employers provide their employees with working conditions that are free of known dangers. Encouraging flu vaccination for employees is one method of doing this.

OSHA does not specifically require employees to take vaccines, but official OSHA guidance provides that you may institute such a requirement. OSHA’s guidance further provides that employees should be properly informed of the benefits of vaccinations. Employees who refuse vaccinations because of a reasonable belief that they have a medical condition that creates a real danger of serious illness or death (such as serious reaction to the vaccine) may be protected under Section 11(c) of the OSH Act pertaining to whistleblower rights.

What Else Can Employers Do?

A mandatory flu vaccination policy may be too rigid or administratively undesirable for your particular workplace. Or, quite possibly, you are in a state that specifically precludes such policies. To the extent this is the case, there are many other tools available to employers to minimize workplace disruptions caused by the flu.

1. Encourage, but don’t require, all employees to get a seasonal flu vaccine each fall.

2. Consider hosting a flu vaccine clinic at your workplace or provide resources to employees about where they can get a flu vaccine in their community.

3. Develop and review leave policies that encourage sick workers to stay at home without fear of any reprisals.

4. Advise all employees to stay home if they are sick until at least 24 hours after their fever is gone without the use of fever-reducing medicines. The Center for Disease Control (CDC) suggests employees should stay home for at least 24 hours after their fever (temperature of 100 degrees Fahrenheit) is gone. That’s because those with the flu are most contagious during the first three days of their illness. The CDC further advises individuals with confirmed or even suspected flu should stay home from work at least four to five days after the onset of symptoms, even if they do not have a fever.

5. Ask sick employees to go home. Employees who appear to have a flu symptoms upon arrival, or who become sick during the workday, should be promptly separated from others and asked to go home.

6. Develop other flexible policies to allow workers to telework (if feasible) and create other leave policies to allow workers to stay home to care for sick family members or care for children if schools close. Flexible sick leave or telework policies can discourage employees who feel the need to fight through their symptoms, and, in turn, reduce the overall disruption to the workplace.

7. Provide resources and a work environment that promotes preventive actions to reduce the spread of flu. For example, provide tissues, no-touch trash cans, hand soap, and hand sanitizer.

Conclusion

Employees who get bogged down with the flu often think they’re doing the employer a favor by “toughing it out” and coming into work. Even if employees are vaccinated, there is no foolproof way to completely eliminate the flu from the workplace, especially in the retail setting. Implementing sick leave policies and encouraging employees to utilize these policies can go a long way to mitigate any workplace disruptions this flu season.

For more information, contact the authors at PGoatley@fisherphillips.com (502.561.3985) or EHarold@fisherphillips.com (504.592.3801). Source: Fisher Phillips

DISPLAY OSHA FORM FEB. 1 to APR. 30State and Federal OSHA regulations require that employers with 11 or more employees at any time in 2019 must post the Annual Summary of Injuries and Illnesses from February 1, 2020 to April 30, 2020. This form lists summary data for all job related injuries and illnesses that occurred during calendar year 2019. Businesses with no injuries or illnesses for the year must still post the form.

Businesses subject to these regulations should review their Form 300 to verify that all recordable injuries and illnesses are listed, that all entries are complete and accurate, and correct any deficiencies. Record work-related injuries or illnesses that result in death, loss of consciousness, days away from work, restricted work activity or job transfer, or medical treatment beyond first aid. (Other incidents that are significant, as defined by OSHA, must also be recorded.) Use Form 300A, to report a summary of these injuries and illnesses, have an officer of the company sign the form, and then post it from February 1 to April 30.

Form #300A Summary of Work-Related Injuries and Illnesses can be downloaded from the OSHA website at www.osha.gov. Click on “Recordkeeping”, and then click on “Recordkeeping Forms” for OSHA forms 300, 300A, and 301. You may also use OSHA’s on-line order form or call 1-800-321-OSHA.

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