Gov. John Bel Edwards announced he will lift Louisiana’s statewide mask mandate in all settings except for K-12 schools, after sustained improvement across the state in terms of new cases, test positivity and hospitalizations. The Governor’s updated order allows school districts to opt out of the mask mandate as long as they continue to follow the existing quarantine guidelines recommended by the Centers for Disease Control and Prevention (CDC) to better separate exposed students and faculty members from others and avoid outbreaks on campus.

CDC guidance still says everyone 2 years of age or older who is not fully vaccinated should wear a mask in indoor public places.  And if you are fully vaccinated, to maximize protection from the Delta variant, wear a mask indoors in public if you are in an area with high transmission. People who have a health condition or are taking medications that weaken their immune system may not be fully protected even if they are fully vaccinated. They should continue to take all precautions recommended for unvaccinated people, including wearing a well-fitted mask, until advised otherwise by their healthcare provider. At this time, in light of the Delta variant, CDC recommends universal indoor masking for all teachers, staff, students, and visitors to K-12 schools, regardless of vaccination status.

“Today, I am cautiously optimistic and very relieved that the worst of this fourth surge of COVID is clearly behind us, which is a direct result of the people of Louisiana who stepped up to the plate when we needed them to and put their masks back on, got vaccinated, and took extra precautions to stay safe. That’s why we are able to lift the statewide mask mandate,” said Gov. Edwards. “While the K-12 mask mandate will be in place, school districts can opt out if they follow the existing, evidence-based CDC quarantine guidance. This new order does offer a way for local leaders to end the school mask mandate, if they so choose. Let me be clear – Louisiana has been a leader in bringing students safely back into the classroom. And they have done that by following public health guidance including on masking and quarantine. Public health experts and I encourage schools to stay that course. But because case numbers are going down and have reached a new baseline I do believe it’s an appropriate time to give schools more autonomy. It’s not lost on me that while Louisiana has seen 18 children die of COVID, half of those deaths came in the last three months, as the much more contagious Delta variant surged throughout our state.”
Masks will still be mandated by federal regulation, including on mass transit and in health care facilities. They will not be mandated in most places, including government buildings, college and university campuses and businesses. School districts may opt out of the mask mandate if they choose to, but only if they continue to adhere to CDC quarantine guidance.

“We are encouraged about our current COVID trends, but remain mindful of our profound loss as a result of the last surge and cognizant that we will remain vulnerable to an equally damaging surge unless more of our friends, family and neighbors choose to get vaccinated,” said State Health Officer Dr. Joseph Kanter.

Local governments and private businesses may choose to continue to require and enforce mask requirements under the Governor’s order, which goes into effect on Wednesday, October 27.

Click here to read the executive order.

Click here to view gating criteria slides.

SCHOOL AND GENERAL QUARANTINE GUIDANCE
Under the CDC and LDH guidance that schools without mask mandates must follow, asymptomatic individuals who may have been in close contact (within 6 feet of someone infected with COVID-19 for a cumulative total of 15 minutes or more over a 24-hour period) to someone infected with COVID-19 should quarantine.

Under the following criteria quarantine is not necessary:

• Individuals who are fully vaccinated at the time of exposure and remain asymptomatic
• Individuals who previously tested positive for COVID-19 within the last 90 days and remain asymptomatic
• If both the positive case and the contact were masked AND were ≥ 3 feet of each other and remain asymptomatic (only applies to students in structured K-12 settings)
  
  

Duration: The standard length is 14 days; however, schools can choose to use shortened quarantine options.
Options to shorten quarantine include:

• If no symptoms develop during quarantine AND they have a negative antigen or PCR/molecular test collected on day 5, 6, or 7 after last exposure: they may quarantine for 7 days from last contact with a COVID-19 case OR
• If no symptoms develop during quarantine and no testing is done: they may quarantine for 10 days from last contact with a COVID-19 case
  
  

At this time, the CDC advises that fully vaccinated individuals who are not experiencing COVID symptoms do not need to quarantine following an exposure to COVID-19, and LDH is not yet altering this guidance.
Anyone with symptoms of COVID-19, even those who are fully vaccinated or without a known exposure, should get tested.

Anyone who tests positive should immediately isolate. Isolation (for those who test positive for COVID-19) typically consists of:

• If symptomatic, at least 10 days since symptoms first appeared, symptoms are improving, and at least 24 hours with no fever without fever-reducing medication
• If asymptomatic but with a positive test, 10 days from the time the test sample was collected
  
  

Call 211 to find a COVID-19 testing site near you.

HOW TO GET A COVID VACCINE IN LOUISIANA
Everyone aged 12 and older is eligible for the COVID-19 vaccine in Louisiana. The FDA has only authorized one of the three COVID-19 vaccines – from Pfizer – for children ages 12 to 17. Parents should confirm with the vaccine provider that their child is under 18 to ensure Pfizer vaccine is available before making an appointment.

• COVID-19 vaccines are widely available at more than 1,000 locations in all of Louisiana’s 64 parishes, including at pharmacies, hospitals, health care clinics, and doctor’s offices.
• For a list of locations, visit LDH’s vaccine directory or visit vaccines.gov, which is maintained by the federal government. 
• To get a list of vaccine locations near you text your ZIP code to GETVAX (438829) in English, or VACUNA (822862) in Spanish.
• If you have questions, would like to speak with a medical professional, or need help scheduling an appointment, call 211 or Louisiana’s vaccine hotline at 1-855-453-0774.

The National Restaurant  Association just transmitted the letter linked below to the White House Office of Information and Regulatory Affairs (OIRA).  We expect they are going to try have this ETS out the door by the end of the week if at all possible.  Once it is published in the Federal Register, the rule goes into effect immediately, but a ramp-up period of time will likely be included to allow employers to get into compliance.  Legal challenges seeking to enjoin the rule will immediately follow.  
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Federal labor officials just finalized a rule that broadens their ability to assess monetary fines against those business that commit wage and hour violations with regards to tip payments, a development several months in the making that should cause hospitality employers and others with tipped employees to ensure compliance with strict federal regulations. The September 24 release from the Department of Labor (DOL) concerns tips and their treatment under the Fair Labor Standards Act (FLSA) and withdraws a Trump-era regulation – most notably permitting the DOL to assess monetary fines of up to $1,162 per violation with regard to tips beginning November 23. What do employers need to know – and what should you do as a result? 

Updated Rule in a Nutshell
The FLSA already allows the DOL to pursue tips and liquidated damages. The broadening of the standard for assessing civil money penalties simply adds another risk to employers with tipped employees, particularly those in the hospitality industry which already has been hit hard by the COVID-19 pandemic. The Final Rule will become effective on November 23, 2021, and makes the following notable changes to the existing administrative regulations:

• The Final Rule provides that the DOL may assess civil money penalties of up to $1,162 per violation of the FLSA’s tip provisions even if the violations are not repeated or willful. This is significant as DOL civil money penalties as to minimum wage and overtime violations are limited to repeated or willful conduct by an employer.
• The Final Rule adopts the same considerations and monetary amount considerations as the DOL applies for other FLSA civil money penalties. The Final Rule provides that multiple circumstances can be used by the DOL to show that an employer’s violation of the FLSA’s tip provisions is willful (i.e., knowing or done with reckless disregard for whether the conduct violates the FLSA).
• The Final Rule provides that while managers or supervisors may not receive tips from mandatory tip pools, managers or supervisors are not prohibited from contributing tips to eligible employees in mandatory tip pools and also are not prohibited from keeping tips directly received for services a manager or supervisor directly and solely provides.
• Notably, the Final Rule does not implement the DOL’s separate June 2021 proposed rulemaking that proposed a more onerous form of the notorious 80/20 Duties Rule (sometimes called the “20% Rule”) for those employers who take a tip credit. That portion of the regulations has been delayed and is expected to be published in late 2021 or early 2022. Additionally, many regulations related to tips already became effective in April 2021 (for example, provisions related to allowed tip pooling for employers who do not take a tip-credit and recordkeeping provisions).
  
  

While the Final Rule does not prohibit the use of the tip credit (i.e., paying a wage of $2.13 per hour or a higher rate depending on state law) and taking a credit toward the remainder of the federal minimum wage of $7.25 per hour based on the tips an employee receives, it raises a looming problem for employers. In the event the expanded 80/20 rule goes into effect in late 2021 or early 2022, it will be increasingly difficult for employers to utilize the tip credit and the fines associated with violations of the FLSA and the tip provisions will be easier for the DOL to assess. Keep in mind that some states prohibit the use of a tip credit and the DOL’s regulatory activity to date seems designed to reach that result without having to amend the FLSA through legislation.

Civil Money Penalties and The FLSA Tip Provisions
In 2018, Congress amended the FLSA to add new statutory language which expressly prohibits employers from keeping employees’ tips “for any purposes,” even for employers who do not take a tip credit. This includes a prohibition against “managers or supervisors” from keeping tips. Congress also amended the FLSA to give the DOL discretion to impose civil money penalties of up to $1,100 when employers unlawfully keep tips.    

In situations where the DOL investigates and finds a violation of the minimum wage, overtime pay, or tip provisions of the FLSA, the statute authorizes the DOL to assess civil money penalties. The FLSA provides that the DOL may assess civil money penalties for minimum wage and overtime pay only when the violations are repeated or willful. However, a 2018 amendment to the FLSA added new penalty language for employers who violate the FLSA by keeping tips does not limit the DOL’s assessment of civil money penalties to repeated or willful violations. Instead, it allows the DOL to assess civil money penalties for violations of the tip provisions “as the Secretary [of the DOL] deems appropriate.”

Under the Final Rule, the DOL can now assess civil money penalties of $1,162 (amount adjusted for inflation) per violation of the tip provisions of the FLSA even if the violation is not repeated or willful. However, the Final Rule does preserve longstanding rules for civil money penalties that include the obligation of the DOL to consider the size of an employer’s business when determining the amount of any civil money penalty.

What’s “Willful”? 
While the DOL can assess a civil money penalty for violation of the FLSA’s tip provisions even if the employer’s conduct is not repeated or willful, a willful violation of the FLSA increases the likelihood that the DOL will impose civil monetary penalties. Per the regulations, a willful violation is one where “the employer knew that its conduct was prohibited by the FLSA or showed reckless disregard for the requirements of the FLSA.”

The Final Rule provides that an employer’s failure to adequately inquire into whether it violated the FLSA when it should have done so is considered tantamount to reckless disregard. Reckless disregard can be proven by evidence other than the employer not making inquiries. While the DOL will still consider all of the relevant facts and circumstances, the revised regulations make clear that an employer is in reckless disregard of the FLSA when, among other situations, the DOL determines that the employer should have inquired about whether its conduct was lawful but failed to do so. The DOL standard for whether an employer has acted willfully applies regardless of the size of the employer. The size of the employer only factors into the amount of the civil money penalty assessed.

Clarification of Rules Regarding Managers and Supervisors
The FLSA prohibits employers from keeping tips received by employees. The FLSA prohibition on keeping tip includes a restriction that the employer may not allow its managers or supervisors to keep any portion of an employee’s tips. Under the Final Rule, “manager” or “supervisor” is defined as those employees who meet the duties test of the FLSA’s executive exemption. 

The Final Rule clarifies that an employer does not violate the FLSA when a manager or supervisor keeps tips that “he or she received directly from customers based on the service that he or she directly and solely provides.” Thus, managers and supervisors may keep their own tips, but cannot keep tips received by employees other than themselves and also cannot participate in a lawful, mandatory tip pool in which non-managerial or supervisor employees participate.

While managers and supervisors may not participate in a tip pool, the Final Rule provides that an employer may require a manager or supervisor to contribute tips to such an arrangement. This Final Rule is intended to recognize the reality that some managers and supervisors perform work for which they directly receive tips, while at the same time ensuring that managers and supervisors do not keep any portion of other employees’ tips in violation of the FLSA.

What’s Next for Employers?
The DOL’s Final Rule provides an easier path for the agency to assess civil money penalties against employers who violate the tip provisions of the FLSA, regardless of whether the employer takes a tip credit. With implementation of an expanded 80/20 Rule looming, this is particularly true for employers who utilize the tip credit and who will have to carefully monitor the amounts of time that tipped employees spend when performing various job duties.
For employers who take the tip credit, this presents a real dilemma: Should you utilize the tip-credit in the context of a DOL regulatory scheme which allows the assessment of civil money penalties against employers regardless of whether such violation was repeated or willful? Some employers may well conclude that the headache associated with monitoring the tip-credit duties rules is simply not worth the risk. Perhaps that is DOL’s goal.
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Fisher Phillips will continue to monitor this situation and provide updates as appropriate. Make sure you are subscribed to Fisher Phillips’ Insight System to get the most up-to-date information. For further information, contact your Fisher Phillips attorney, the authors of this Insight, any attorney in Wage and Hour Practice Group, or any member of our Hospitality Industry Team.