Employment

Whether or not a business has returned fully to a physical workplace, partially with a hybrid arrangement, or has remained remote, there are a few key areas of focus for a successful return. In this video, Mintz Employment Member, Jen Rubin, highlights important issues employers should consider.

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.

Once an employer has committed to returning its workforce in some form or fashion to the physical workplace, what are some best practices relating to that process? In this video, Mintz Employment Member, Jen Rubin, discusses unique issues employers should consider relating to workforce surveys and gathering information from employees.

The CDC’s latest guidance lifting many restrictions for most fully vaccinated individuals has forced employers to consider whether and how to implement workplace vaccination policies. During this webinar, our speakers explored the current workplace vaccine compliance landscape and offered best practices for implementing vaccination policies aimed at making workplaces safe and while accounting for jurisdictional, political, philosophical and physical divides.

Now that widespread vaccination appears to be slowing the pandemic, and in light of the CDC’s guidance regarding measures fully vaccinated individuals can take, returning to the office has become a priority for employers across the nation. In this video, Mintz Employment Member, Jen Rubin, discusses some concepts employers should consider as they plan to return employees to the office. 

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. 

It’s been a busy month (year?) for New York employers – one that has brought several important updates with respect to employers’ reopening plans. On the heels of the State’s May 19th adoption of the recent CDC guidance outlining increased privileges for fully vaccinated individuals, New York State updated its NY Forward COVID-19 reopening guidance on June 8, 2021, including its guidance geared toward office environments. As a reminder, New York businesses opting to reopen during the COVID-19 pandemic must do so consistent with the State’s industry-specific reopening guidelines, found here; affirm their compliance with same prior to reestablishing in-person operations; and implement a written safety plan governing its workplace safety protocols.

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. 

Cal/OSHA has relaxed some of its COVID-19 Prevention Emergency Temporary Standards (ETS) for fully vaccinated individuals to better align with the California’s June 15, 2021 goal to end most mask and physical distancing requirements. But the proposed revisions stop short of fully adopting the May 13, 2021 CDC guidance for fully vaccinated individuals and do not (yet) provide guidance on several important issues, including the enforcement of documentation for vaccine verification and how employers can demonstrate that physical distancing is not feasible.

Massachusetts Governor Charlie Baker recently signed legislation requiring employers to provide COVID-19 emergency paid sick leave (“COVID-19 EPSL”) to employees who are unable to work for COVID-19-related reasons. In this post, we summarize and answer some frequently asked questions.

According to Bloomberg Law, class actions challenging 401(k) plan fees are increasing at a record pace. The underlying claims in these class action suits fall into predictable categories that are all too familiar: excessive fees, poor fund choices, poor plan design, fiduciary neglect, and prohibited transactions. Khan v. PTC, Inc. fits the pattern. The plaintiffs claim that the fiduciaries of the PTC, Inc. 401(k) plan:

Environmental, social, and governance (“ESG”) investing has experienced quite the regulatory roller coaster in recent years.

In this episode, we are joined by Ryan Campagna, Senior Vice President - Retirement Plan Advisory at Sentinel Benefits & Financial Group, who will help us continue our exploration surrounding what retirement committees do and how they operate.

The New York State Legislature recently passed the Health and Essential Rights Act (the “HERO Act”), which has been delivered to Governor Cuomo for his signature. The legislation seeks to address continued COVID-19 safety concerns in the workplace and is designed to codify, supplement, and replace numerous executive actions that have been issued throughout the pandemic. The HERO Act would also pass into law significant new health and safety obligations for New York employers, including the formation of joint labor-management workplace safety committees to help ensure worker safety. Employers should prepare now to come into compliance with the new law, which we summarize below.

The CDC’s recent guidance suggesting that most fully vaccinated individuals may discontinue certain safety measures, such as masking and social distancing, has created significant confusion for employers navigating conflicting and ever-changing state and local COVID-19 workplace laws, regulations and guidance. While the most recent CDC guidance endorses resuming activities (indoors and out) without masks for most fully vaccinated individuals, the guidance around vaccination verification and disparate treatment between the vaccinated and unvaccinated is still lacking. Employers are now facing these sensitive but critically important return to office issues without the benefit of critical guidance from Federal, state and local regulators. We provide some guidance below regarding vaccine verification and some considerations for employers thinking about instituting vaccine policies.

On May 13, 2021, the Centers for Disease Control and Prevention (the “CDC”) published guidance indicating that fully vaccinated individuals do not need to wear a mask or physically distance in certain indoor and outdoor environments, except where otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. The guidance does not apply to healthcare settings and certain other environments.

Many employees relocated during the Covid-19 pandemic and some are expected to continue working remotely, creating complexities for employers because of state and local wage-and-hour laws and other regulations, says Mintz employment partner Jen Rubin. She explains how organizations can get a handle on where their employees are working and why they need to do so.

New York’s off duty conduct law will now explicitly apply to an employee’s off-duty use of cannabis. The change in law came as a result of the recent passage of “The Marijuana Regulation and Taxation Act,” which generally legalized the sale and use of cannabis for individuals 21 and over, and presents real compliance challenges for employers, which we discuss further below.

The Department of Labor has issued model notices regarding COBRA premium assistance (a/k/a COBRA subsidies). As we wrote about here, as part of the American Rescue Plan Act of 2021, Congress sought to enable qualifying individuals – known under the law as “Assistance Eligible Individuals” – to continue their healthcare coverage by subsidizing their COBRA premium payments for the period between April 1 and September 30, 2021. We discuss these notice requirements and related issues below.

In this episode, we are joined by Mark Wetzel, Managing Partner, President of Fiducient Advisors, who will help us continue our exploration surrounding what retirement committees do and how they operate.