Employment

A Federal appeals court has temporarily blocked OSHA’s vaccine rule. Citing to potential “grave statutory and constitutional issues” with the rule, the 5th Circuit promised an expedited judicial review of whether to block it permanently. We expect that even after the 5th Circuit rules, the Supreme Court will be asked to weigh in. We also, of course, will be closely monitoring this legal development, which impacts employers nationwide. Although the future of the OSHA vaccine rule is unknown at this time, employers should continue to take steps to come into compliance given the short compliance window provided by OSHA if the rule is upheld.

The New York State Department of Labor (NYSDOL) has published guidance regarding employee cannabis use. 

The EEOC has updated its technical guidance and answers to add six religious accommodation-based questions and answers in a new Section L (Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates).  The updated guidance does not necessarily break new ground in this area; instead, it mostly reinforces several preexisting concepts, including (i) how employers should analyze the religious nature and sincerity of an employee’s belief; (ii) what might constitute “undue hardship”; and (iii) the need for employers to analyze each accommodation request on a case-by-case basis.  We break down the updated guidance further below. 

The Massachusetts Department of Family and Medical Leave (the “Department”) has issued a number of changes relating to the Massachusetts Paid Family and Medical Leave (“MAPFML”) since their last quarterly briefing. 

The Departments of Labor, Health and Human Services, and the Treasury (the “Departments”) recently issued a set of Frequently Asked Questions—FAQs About Affordable Act Implementation, Part 50, Health Insurance Portability and Accountability Act, and Coronavirus Aid, Relief, and Economic Security Act Implementation—confirming that employers may utilize group health plan coverage surcharges in compliance with the ACA and HIPAA, although Title VI, ADA, and GINA compliance-based questions remain

The New York State Department of Health Commissioner has extended the designation of COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health in New York State” until October 31, 2021.

The Biden Administration, via its Safer Federal Workforce Task Force (the “Task Force”), has now provided the guidance with which federal contractor and subcontractors must comply in connection with their contracts and contract-like instruments with the Federal government.

The New York State Commissioner of Health has designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health.” This means that the HERO Act’s many requirements are no longer theoretical: Almost all private New York employers must now activate their HERO Act-compliant workplace exposure prevention plans and take numerous implementation steps required by the recently enacted law. Per the Commissioner’s designation notice, the “activation” designation will remain in effect until at least September 30, 2021, at which point the Commissioner will review the level of transmission of COVID-19 in New York State and determine whether to continue this designation.

In a previous post, we reported on an announcement by Delta Airlines that it would impose a premium surcharge on employees covered under its group health plan who failed to get vaccinated for COVID-19.

In 2019, the California legislature passed AB 51, a law prohibiting employers from requiring employees to agree to arbitration as a condition of employment. Before the law went into effect, the U.S. Chamber of Commerce—a coalition of employers—challenged the law in federal court, arguing that it violated the Federal Arbitration Act (the “FAA”).

Calling it “a more-punitive approach toward getting its workforce vaccinated against Covid-19,” the Wall Street Journal recently reported that Delta Airlines will require its unvaccinated workers to pay a $200 monthly health insurance surcharge.

As new developments occur with the Delta variant, employers must adapt their return to office (RTO) plans to comply with fluctuating CDC guidance, state and local requirements, and employee expectations.

The Biden Administration yesterday unveiled its Path out of the Pandemic – a six-pronged plan designed to further combat COVID-19.

Employers implementing mandatory Covid-19 vaccination programs must manage, and in some cases accommodate, exemption requests. Legal exemptions from mandatory vaccination include medical exemptions under the Americans with Disabilities Act and exemptions based on sincerely held religious beliefs pursuant to Title VII of the Civil Rights Act of 1964 (and equivalent state laws for both federal statutes).

CDC’s updated guidance suggesting facial coverings be worn in “public indoor settings” adds a new but hopefully surmountable barrier to returning the workforce to the office (though undefined, we presume this means any indoor location where two or more individuals are working). At the outset, the CDC guidance does not create a Federal workplace mandate but rather provides a baseline for the creation of safety standards grounded in scientific data – data we recognize is not static given the nature of the Coronavirus pandemic. The latest guidance has frustrated some employers who are attempting to develop sensible policies to return their workforce to offices. We offer some practical guidance regarding the changes, if any, employers might consider in response to the latest CDC guidance.

The NYC Commission on Human Rights (the Commission) has released updated enforcement guidance regarding the Fair Chance Act. New York City amended the Fair Chance Act last year and those changes will go into effect on July 29, 2021.

The New York State Department of Labor (NYSDOL) has released its HERO Act minimum standards and template policies related to airborne infectious disease prevention. Employers now have 30 days after the standards’ publication – until August 5, 2021 – to either: (1) adopt one of the model standard exposure prevention plans applicable to their industry, or (2) develop and establish an alternative prevention plan that meets or exceeds the minimum standards.

Cal/OSHA has approved revised Emergency Temporary Standards (ETS) and Governor Newsom has issued an executive order waiving the usual 10-day legal review and approval process by the Office of Administrative Law (OAL). This revised ETS (the third version since late May) more closely aligns with the CDC and California Department of Public Health (CDPH) guidelines on face covering restrictions and physical distancing.

It’s been a long road to recovery for employers since New York first issued its NY Forward reopening requirements for offices and other similar environments back in May 2020.  Today, as New York reached a key vaccination metric – 70% of adults have now received at least one vaccine shot – Governor Cuomo announced that New York businesses will no longer be required to abide by the current industry-specific guidelines in order to reopen.  Accordingly, the current NY Forward guidelines on capacity restrictions, social distancing, cleaning and disinfection, health screenings, contact tracing, and other virus-related restrictions are now lifted in most commercial settings. 

Bonuses and their impact on an employee’s “regular rate of pay” have long been a proverbial thorn in the side of California employers.  The nondiscretionary nature of most bonuses (even those bonuses employers attempt to characterize as “discretionary”) makes them part of a non-exempt employee’s regular rate of pay for purposes of determining the appropriate overtime rate. Cal. Labor Code § 226 requires all hourly rates of pay to be reflected in employees’ pay statements.  The ambiguity surrounding the extent to which this “hourly rate of pay” includes bonuses in all of their various forms and the related overtime adjustments can sometimes leave employers feeling uncertain as to how to ensure compliant paystubs when nondiscretionary bonuses are paid to non-exempt employees. A recent decision from the Ninth Circuit Court of Appeals offered some clarity.