Employment

In Field Assistance Bulletin 2021-03, the Department of Labor (the “Department”) announced a temporary enforcement policy relating to the rules enacted in Division BB of the Consolidated Appropriations Act, 2021 (the “Act”) requiring the disclosure of direct and indirect compensation paid to brokers and consultants who advise group health plans.

Mintz Member Jennifer Rubin authored an article published by Corporate Counsel exploring how a new generation of tech savvy, social justice-focused, and environmentally aware employee stakeholders are creating recruitment, retention, and other employment challenges. In the article, she wrote that corporate counsel can play a key role in managing and mitigating this human capital risk, not only in response to the growing environmental, social, and governance disclosure and regulation trends, but as part of the need to design future-proof legal frameworks for the workplace.

The New York State Department of Labor has issued proposed regulations interpreting and further defining the contours of the HERO Act’s joint labor-management workplace safety committees.  We summarize the proposed regulations below. 

Mayor-elect Eric Adams has announced that he plans to keep New York City’s vaccine mandate in place once he takes office.

In July 2019, the Auditing Standards Board of the American Institute of Certified Public Accountants (AICPA) issued a revised Statement on Auditing Standards No. 136 entitled, “Forming an Opinion and Reporting on Financial Statements of Employee Benefit Plans Subject to ERISA.” Originally slated to take effect for tax periods ending after December 15, 2020, the revised standard was delayed by one year. Audit firms may however choose to adopt the standard on the original effective date.

The updated guidance now states that NYC employers must comply with its vaccine order regardless of whether the OSHA vaccine order becomes effective. The guidance originally stated that “[c]overed entities or individuals who are subject to federal requirements that are not currently in effect because of a court order must comply with this order.” The guidance has now been updated to read: “Covered entities or individuals who are covered by the OSHA rule that allows either employee vaccination or testing must comply with this order – their workers must be vaccinated if they do not have a reasonable accommodation.” The City is taking this position even though the NYC Vaccine Executive Order itself states that it does not apply where a covered entity is already subject to another order, including an order of a “federal entity that is in effect and requires them to maintain or provide proof of full vaccination.”

In a recent decision, the Massachusetts Supreme Judicial Court (SJC) confirmed that the framework used in federal Fair Labor Standards Act (FLSA) cases, not the ABC classification test set forth in Massachusetts’ independent contractor statute, M.G.L. c. 149 § 148B, provides the appropriate test for evaluating whether an entity is a joint employer for Massachusetts wage law cases.

As expected, the U.S. Supreme Court will rule on whether OSHA may proceed with its Vaccine Order for large employers. The Court will hold a special hearing on January 7, 2022. Briefings are due by December 30, 2021. The Court will also consider whether a separate vaccine order related to healthcare workers is enforceable.

The New York City Council passed a bill which would amend the New York City Human Rights Law and require employers to state the minimum and maximum salary for any position located in New York City. This applies to job postings and advertisements, as well as promotion or transfer opportunities. This is the latest move to encourage salary transparency and equity, which is a growing movement a number of states and locales, including New York have joined to address systemic pay inequities.

The EEOC has updated guidance clarifying when COVID-19 may comprise a disability under the ADA. In a new Section N of its COVID-19 guidance entitled “COVID-19 and the Definition of ‘Disability’ Under the ADA, Rehabilitation Act, and other EEO Laws,” the EEOC focuses on when COVID-19 is, or is not, a disability, and the resulting impact on an employer’s obligation(s) under the law. Importantly, the guidance clarifies that depending on the circumstances, COVID-19 can meet the ADA’s three-part definition of “disability” (i.e., “actual disability”, “record of disability” or being “regarded as an individual with a disability”) and provide protections to applicants and employees. However, not every individual with COVID-19 will qualify as disabled. Employers must assess on a case-by-case basis to determine if the requisite standards are met. The guidance provides multiple examples of actual disabilities and regarded as disabilities to further assist employers in their assessments.

New York City has released its anticipated vaccine order for private businesses alongside a workplace vaccine requirement webpage containing interpretative guidance and other helpful links. The new vaccine order generally requires employers to obtain proof of a worker’s vaccination before allowing them entry into the workplace. As we previously reported, Mayor Bill de Blasio described this mandate as a “preemptive strike” made in an effort to confront looming challenges posed by the Omicron variant and the holiday season. We summarize relevant portions from the order and interpretative guidance below, and note that NYC employers will need to take several affirmative actions to come into compliance in the next couple of weeks.

California has once again reined in the use of confidentiality provisions in the employment context with its recent enactment of the Silenced No More Act (SB 331), which goes into effect January 1, 2022.

Citing the presence of the Omicron variant in California and the heightened transmission risks surrounding the holiday season, the California Department of Public Health has instituted an indoor masking mandate for public settings effective December 15, 2021 and continuing through January 15, 2022.

California employers and executives might view fixed term employment agreements in a new light following a California appellate court’s unpublished decision suggesting employers do not violate California’s long-established policy promoting employee mobility when they enter into these types of agreements.

Effective May 7, 2022, all New York employers will be required to provide notice to employees of any employer monitoring of work phones, emails, or Internet use.

Mayor Bill de Blasio has announced a COVID-19 vaccine mandate that will apply to all private employers in New York City.  The Mayor announced the mandate as a “first in the nation measure,” and a “preemptive strike” in response to challenges posed by the new Omicron variant, colder weather, and holiday gatherings.

Division BB of the Consolidated Appropriations Act, 2021 (“Act”) broadly addresses surprise medical billing and health plan transparency. This post focuses on Section 202 of Division BB (the “Provision”), which establishes rules governing the disclosure of direct and indirect compensation paid to brokers and consultants who advise group health plans.

A three-judge panel on the Fifth Circuit Court of Appeals has now permanently blocked OSHA from implementing and enforcing its vaccine rule, which impacts employers nationwide. This is not the end of the judicial review road for the vaccine rule. Challenges to the rule were filed in multiple federal circuit courts across the country. Regardless of the outcome, the Supreme Court will likely have the final word.

New York has greatly expanded its “whistleblower” law. The amendments to New York Labor Law §740 go into effect on January 26, 2022 and undoubtedly enhance employee protections and require New York employers to take certain steps to come into compliance. We discuss in greater detail below.

A recently proposed Department of Labor regulation entitled “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights” (the “Proposal”) addresses the duties of retirement plan fiduciaries when considering economically targeted investments – i.e., investments that take into account environmental, social, and governance (“ESG”) factors. Issued in response to a May 20, 2021 Executive Order, the Proposal would significantly modify prior, Trump-era rules on the subject. This post examines the Proposal from the retirement committee perspective.