Workforce Bulletin

On October 5, 2021, New Jersey Governor Phil Murphy signed A681 (“Law”) into law, strengthening the state’s protections against age discrimination by amending the Law Against Discrimination (LAD) to:

• delete the provision that had allowed employers not to hire or to promote employees over age 70 because of their age;
• delete the provision that permitted higher education institutions to require tenured employees to retire at 70 years old; and
• provide that an employee may seek all remedies permitted by the LAD if required to retire because of age, instead of being limited to ...

As we previously reported, as of September 6, 2021, all New York HERO Act (“HERO Act”) airborne infectious disease exposure prevention plans (“Safety Plans”) must be implemented due to COVID-19 being designated as a serious public health risk under the HERO Act. This designation was recently extended until at least October 31, 2021, per the New York Commissioner of Health’s announcement.

To help employers comply with the HERO Act’s requirements, the New York State Department of Labor (“NYSDOL”) has published a variety of guidance materials, such as model Safety ...

Ohio’s minimum wage will increase to $9.30 per hour for non-tipped employees and $4.65 per hour for tipped employees, effective January 1, 2022.  This new minimum wage will apply to employees of businesses with annual gross receipts of more than $342,000 per year.

For employees at smaller companies with annual gross receipts of $342,000 or less per year, and for 14- and 15-year-olds, the minimum wage continues to be the federal rate of $7.25 per hour.

As a reminder, employers should update their minimum wage and overtime poster, which should be posted in a location that is easily ...

On September 24, 2021, in response to the Path Out of the Pandemic: COVID-19 Action Plan announced by President Biden on September 9, and Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (the “Order”), signed by the President the same day, the Safer Federal Workforce Task Force (“Task Force”) issued “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” (“Guidance”). The Guidance, which the Director of the Office of Management and Budget approved, is intended to ensure that COVID-19 ...

On September 17, 2021, Los Angeles County Department of Public Health (LACDPH) announced a public health order (“the Order”) requiring proof of COVID-19 vaccination for all on-site employees and visitors at indoor bars, breweries, wineries, distilleries, nightclubs, and lounges throughout the county. Effective Thursday, October 7, 2021 at 11:59 P.M., proof of vaccination will be required to enter these establishments, and will be strongly recommended, although not required, for restaurants with indoor dining. Patrons who do not provide proof of vaccination may still be ...

On September 23, 2021, the New York State Department of Labor (“NYSDOL”) released an update to its general model airborne infectious disease exposure prevention plan (“model plan”) for employers’ use in complying with the NY HERO Act. Specifically, the model plan’s language regarding face coverings and physical distancing was modified by:

• distinguishing between workplaces where all individuals on the premises, including, but not limited to, employees, are fully vaccinated and those workplaces where not all individuals are vaccinated in terms of whether face ...

Supreme Judicial Court Clarifies Breadth of COVID-19 Tolling Order

During the early days of the COVID-19 pandemic, the Supreme Judicial Court of Massachusetts (“SJC”) entered an order tolling the statutes of limitations applicable to civil claims. Although some practitioners interpreted the order as tolling only those statutes of limitations set to expire while the order was in effect, in Shaw’s Supermarkets, Inc. v. Melendez, SJC-13054 (Sept. 3, 2021), the SJC rejected such a narrow interpretation and held that its order tolled all statutes of limitations, regardless ...

As we wrote in our last Marijuana Legalization Rundown, state legislatures across the country have been busy enacting cannabis legalization laws this year.  Along with those laws has come a number of recent court decisions interpreting the application of cannabis legalization laws.  This post summarizes some of the significant decisions issued this year.

California     

On April 28, 2021, the U.S. District Court for the Central District of California granted summary judgment to the defendant employer on claims brought under the Fair Employment and Housing Act ...

Many employers are aware that they could waive the ability to enforce an arbitration agreement if they delay moving to compel arbitration until after they have engaged in significant litigation activities in court, such as filing a motion to dismiss or serving discovery requests. However, in Hernandez v. Universal Protection Services, a Massachusetts Superior Court judge found that an employer waived its right to compel arbitration based on its actions before an employee filed suit in court. As Hernandez is novel and significant, employers may want to consider adopting practices ...

On September 9, 2021, President Biden announced that his Administration is implementing a six-pronged, comprehensive national strategy to ensure that all available tools are being used to combat COVID-19.  The plan addresses: (1) vaccinating the unvaccinated; (2) further protecting the vaccinated; (3) keeping schools safely open; (4) increasing testing and requiring masking; (5) protecting the economic recovery; and (6) improving care for those with COVID-19.  The first strategy is germane to employers.

Vaccinating the Unvaccinated – To accomplish this, the U.S ...

Last week, a divided Massachusetts Supreme Judicial Court (“SJC”) in Osborne-Trussell v. Children’s Hospital Corp. ruled in favor of a broad interpretation of the 2014 Domestic Violence and Abuse Leave Act (“DVLA”), a law that provides certain employment protections for victims of domestic violence, including a prohibition against retaliation for seeking or using protected leave. Specifically, the DVLA prohibits an employer from taking adverse action against, or otherwise discriminating against, an employee who exercises rights under the DVLA, such as taking ...

Washington, D.C. employers have more time to get their non-compete ducks in a row. On August 23, 2021, Mayor Bowser signed the Fiscal Year 2022 Budget Support Act of 2021 (B24-0373) (the “Support Act”), which includes various statutory changes necessary to implement the D.C. FY 2022 budget. As expected, the Support Act postpones the applicability date of the Ban on Non-Compete Agreements Amendment Act of 2020 (the “Non-Compete Act”) until April 1, 2022. The postponement not only provides more time for employers to prepare for the non-compete ban—it also permits the D.C ...

On June 23, 2021, Governor Lamont signed Senate Bill 1202, a special session bill implementing the state budget for fiscal years 2022 and 2023.  Included in the 837-page bill is a requirement for employers to provide employees with two hours unpaid time off to vote on the day of a regular state election.  In the case of a special election for U.S. Senator, U.S. Representative, state senator, or state representative, the new requirement to provide time off applies only to employees who are "electors" (meaning already registered to vote). Thus, non-registered voters are not entitled to ...

There has been a recent flurry of movement – both in the courts and in state legislatures – on the marijuana law front across several states.  As we previously reported, on February 22, 2021, New Jersey Governor Phil Murphy signed three separate cannabis reform bills into law (NJ A21, NJ A 1897, and NJ A5342/NJ S3454), formally legalizing the use and possession of recreational marijuana in the Garden State.  The new laws contain express workplace-related provisions that impact New Jersey employers by establishing non-discrimination rules for recreational cannabis users or ...

Just as Washington, D.C. employers begin navigating the District’s recently enacted non-compete ban, changes to the law are already in the works. As we previously reported, earlier this year D.C. enacted the Ban on Non-Compete Agreements Amendment Act of 2020 (D.C. Act 23-563) (the “Act”), which prohibits employers from requiring or requesting that an employee sign any agreement containing a non-compete provision. For a more detailed summary and analysis of the Act, please refer to our December 22, 2020 article.

In response to concerns raised by the employer community

President Biden’s $6 trillion 2022 budget proposal focuses on worker protections—including the American Jobs Plan and the American Families Plan. Both of these plans contain labor and numerous employment initiatives. The budget proposes increased funding for the Department of Labor (“DOL”), the Equal Employment Opportunity Commission (“EEOC”), and the National Labor Relations Board (“NLRB” or “Board”).

The 2022 budget calls for $2.1 billion, an increase of $304 million, in DOL’s worker protection agencies. Over the past four years, those agencies ...

On May 14, 2021, the United States House of Representatives passed the Pregnant Workers Fairness Act (“PWFA” or “HR 1065”) for a second time.  With a vote of 315-101, including support from all House Democrats and 99 Republicans, the PWFA now awaits Senate consideration.

As previously reported, the House had originally passed the PWFA on September 14, 2020 (“HR 2694”).  While members of congress have introduced versions of the PWFA each term since 2012, last year was the first approval.  After HR 2694 passed the House last September, by a vote of 329-73, the Senate did not ...

As we previously reported, on June 9, 2021, the California Occupational Safety and Health (“Cal/OSHA”) Standards Board (“the Board”) withdrew its prior proposed revisions to the Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards (“ETS”), effectively returning to the original ETS approved in November 2020.  A week later, however, on June 17, 2021, the Board approved revisions to the ETS (“Revised ETS”) which, among other things, align with current guidance from the California Department of Public Health ...

On June 15, 2021, New York State celebrated reaching 70 percent of its adult population having received at least one vaccination dose. As a result, the State lifted most of its New York Forward industry-specific COVID-19 guidelines—including social gathering limits, capacity restrictions, cleaning and disinfection, health screening, and gathering contact information for tracing—making them optional for most employers. The State has archived its industry-specific reopening guidance, which employers may, but are not required to, continue to follow[1].

What ...

On June 11, 2021, Illinois and the City of Chicago entered Phase 5 of its five-stage reopening plans. As part of the transition, Illinois released Executive Order 2021-12 (the “Phase 5 Reopening Order”) and new Phase 5 Guidance. Chicago also issued Phase 5 Recommendations and provided a helpful graphic that provides additional recommendations, which apply to all businesses. For Illinois and Chicago businesses, Phase 5 means a lifting of many COVID-19 restrictions across industries. Although businesses can start operating closer to normal, Phase 5 is a new normal that ...

It has been an active week in California with the release of new statewide face covering guidance, the alignment of Los Angeles County and San Francisco with this guidance, and the withdrawal of the revised Cal/OSHA Prevention Emergency Temporary Standards by the California Division of Occupational Safety and Health Standards Board (the “Board”).

Of most importance, covered employers and workplaces must continue to comply with the more restrictive original Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS) that have been in place since November 2020, not

In a flurry of activity into the wee hours of June 2, 2021, Illinois legislators concluded a spring session that saw the passage of numerous measures that will affect employers in the state across the span of the employment relationship. Among the most significant of the many bills heading to Governor Pritzker for signature are acts amending the Artificial Intelligence Video Interview Act, the Equal Pay Act, the Victims’ Economic Security and Safety Act (“VESSA”), and the Freedom to Work Act. It is expected that Governor Pritzker will sign all of the above-mentioned bills.

As we previously reported, on May 5, 2021, New York Governor Andrew Cuomo signed the Health and Essential Rights Act (the “HERO Act” or “Act”) into law, permanently codifying COVID-19-related health and safety protocols. In a memorandum issued with the signing, Governor Cuomo announced that he had secured an agreement with the Legislature for amendments to the Act to address certain ambiguities and technicalities.

On May 14, 2021, State legislators introduced bills (S6768/A7477) (“Bills” or the “Amendments”) to address some of the Governor’s concerns. The ...

Beginning June 26, 2021, Pennsylvania’s Living Donor Protection Act (the “LDPA”) will provide time off to organ and tissue donors to cover time off for donation surgery, including necessary preparation and recovery.

Pennsylvania employees will be eligible for leave under the LDPA if they meet the following FMLA eligibility criteria: the employee must (1) work for a covered employer, (2) work 1,250 hours during the 12 months prior to the start of leave, (3) work at a location where 50 or more employees work or within 75 miles of it, and (4) have worked for the employer for 12 months ...

On May 21, 2021, consistent with Governor Newsom's intention to fully reopen California by June 15, the California Department of Public Health (“CDPH”) released “Beyond the Blueprint for Industry and Business Sectors” (“Beyond the Blueprint”), outlining the state’s latest reopening guidelines and restrictions.  Importantly, as reflected in the CDPH’s announcement, most employers (as discussed below) must still follow the more restrictive Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS) (“ETS Standards”) (which we wrote about ...

The Cybersecurity & Infrastructure Security Agency (CISA) and the National Institute of Standards and Technology (NIST) jointly published a new resource as part of their ongoing efforts to promote awareness of, and help organizations defend against, supply chain risks. The publication, Defending Against Software Supply Chain Attacks, provides recommendations for software customers and vendors as well as key steps for prevention, mitigation and resilience of software supply chain attacks.

Software supply chain attacks occur when a cyber threat actor infiltrates a software ...

The Illinois Employee Sick Leave Act (“Act”) is what is known as a “kin care” law; i.e., it generally requires Illinois employers that provide paid or unpaid personal sick leave benefits to their employees to allow employees to use such leave to attend to a covered family member’s illness or injury, “on the same terms” as the employees would use their sick leave benefits for their own illness or injury. A “covered family member” means an employee's “child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild ...

The City of Chicago recently enacted the Chicago COVID-19 Vaccine Anti-Retaliation Ordinance.

The Vaccine Anti-Retaliation Ordinance allows workers in Chicago – including independent contractors -- to get vaccinated during a scheduled “shift,” requires pay for hours taken to get vaccinated (if an employer mandates the vaccine), and prohibits retaliation for getting vaccinated during a scheduled shift.

Specifically, the Chicago Vaccine Anti-Retaliation Ordinance provides as follows:

1. An employer may not require that a worker only be vaccinated during ...

On March 3, 2021, New York City Mayor Bill DeBlasio issued Executive Order No. 64 (“EO”), which, effective immediately, imposes new sexual harassment reporting requirements on “human services” providers who contract with the City.  The EO requires the Department of Investigation (“DOI”) to review information about sexual harassment complaints and provide its findings to any City agency that contracts with the disclosing provider.

“Human services” is defined by the relevant section of the Administrative Code to include “day care, foster care, home care ...

Preparing the terms of employee compensation can be a resource-intensive task requiring input from stakeholders across numerous departments, including human resources, finance, and legal. However, as the Massachusetts Appeals Court’s recent decision in Alfieri v. Merrimack Pharmaceuticals, Inc. demonstrates, investing those resources to complete the task will pay dividends when an employer is faced with a potentially costly claim for unpaid wages.

Background

In May 2014, Merrimack Pharmaceuticals, Inc. sent Michael Alfieri a letter offering him the position of ...

The Federal Rules of Civil Procedure are intended to promote the “just, speedy, and inexpensive determination” of lawsuits. For companies defending baseless employment claims, those words may feel like an empty promise. The First Circuit’s recent decision in Alston v. Spiegel sanctioning an attorney for filing frivolous discrimination and retaliation claims, however, reminds employers that there are strategies for deterring such claims

Facts

In late 2015, attorney Brooks Ames filed a complaint on behalf of Gerald Alston, a former firefighter for the Town of Brookline ...

Can an employer be held liable under the False Claims Act (“FCA”) for retaliation if it takes some adverse action against a former employee? Until recently, only one federal appellate court had addressed the issue, holding that the FCA does not cover post-employment retaliation.[1] However, on April 1, 2021, the Sixth Circuit reached the opposite conclusion in United States ex rel. Felten v. William Beaumont Hospital, creating a circuit split and different rules for employers in different jurisdictions.

Background

In 2010, David Felten filed an action on behalf of the United ...

On March 4, 2021, Connecticut Governor Ned Lamont signed House Bill 6515, an “Act Creating a Respectful and Open World for Natural Hair,” also known as the CROWN Act (the “Act”).  This legislation bans natural hair discrimination in the workplace by amending Connecticut’s anti-discrimination statute to define “race” as being “inclusive of ethnic traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”  (Conn. Gen. Stat. 46a-51(23)-(24)).   “Protective hairstyles” is defined to include, but not be ...

Today is “Equal Pay Day” in the United States, a symbolic date used to focus attention on gaps that exist between men’s and women’s wages.  Current estimates show that women still only earn 82 cents for every dollar a man makes.  While there are various opinions about the pay gap and what it means, today is not a day to celebrate; rather it is a day for honest reflection.  Ask the question: is your pay system equitable?

While reflecting on Equal Pay Day, also ask, what can employers do?  Treat pay equity as a business imperative and do a deep dive on pay systems and data.  Start with a ...

As we recently reported, as of March 12, 2021, all private employers in New York must provide their employees with up to four hours of paid leave to get each COVID-19 vaccination shot. The State has now released guidance on the new law (“Law”) in the form of Frequently Asked Questions (“FAQs”). Most importantly, the FAQs clarify that the Law does not create any retroactive benefit rights to paid vaccination leave. Accordingly, while an employer is free to apply the law retroactively if it wishes, the Law mandates that “only employees receiving vaccinations on or after March ...

On March 12, 2021, the Equal Employment Opportunity Commission (EEOC) announced that the EEO-1 Component 1 data collection period will open at the end of April 2021 and close in July 2021.  Submission of the EEO-1 Report is required for employers with 100 or more employees, and applicable Federal government contractors with 50 or more employees and contracts of $50,000. The agency has not announced an exact closing date, indicating:

The EEO-1 Component 1 data collection will open at the end of April 2021 and close in July 2021. The exact closing date will be posted when the data collection ...

Recruiting qualified applicants and hiring top talent have always been time-consuming endeavors that come with constant worry about making a wrong hire. Added to this, the COVID-19 pandemic effectively put a halt to employers’ ability to evaluate applicants in-person. These factors, and others, have led many employers to adopt or to, consider adopting, artificial intelligence (AI) tools to optimize recruitment by introducing efficiencies, reaching a broader pool of applicants, increasing consistency and uniformity in the evaluation of applicants, and, in some cases, helping employers meet diversity, equity, and inclusion goals. Typically, employers opting to use AI, contract with third-party vendors that offer AI-powered algorithms, which perform a variety of functions, such as cognitive assessments, personality tests, and video interviews.

Enacted on December 4, 2020, the Internet of Things Cybersecurity Improvement Act of 2020 (the “IoT Act”) is expected to dramatically improve the cybersecurity of the ubiquitous IoT devices.[1] With IoT devices on track to exceed 21.5 billion by 2025, the IoT Act mandates cybersecurity standards and guidelines for the acquisition and use by the federal government of IoT devices capable of connecting to the Internet. The IoT Act, and the accompanying standards and guidance being developed by the National Institute of Standards and Technology (NIST) will directly affect ...

A critical component of a successful employer-employee relationship is the employer’s fair and equitable treatment of employees, often embodied in the employer’s employee engagement, retention, and compensation practices.  When it comes to compensation, U.S. employers must comply with federal and applicable state equal pay laws that prohibit discriminatory pay practices, and a myriad of state and local laws banning inquiries into, or the use of, prior salary history in setting pay.  Yet, compensation bias and discrimination still exist and continue to be the subject of ...

As featured in #WorkforceWednesday:  In this episode, hear from EEOC Commissioner Keith Sonderling. As a sitting commissioner, Mr. Sonderling has a unique perspective on priorities, new initiatives, and the outlook for what employers can expect from the agency in 2021. Attorney David Garland leads the conversation.

Employers and the New Administration is a special podcast series from Employment Law This Week®, with analysis of the first 100 days of the Biden administration. Special podcast episodes air every other #WorkforceWednesday.

If you’d like to hear ...

On February 22, 2021, Governor Murphy signed three separate cannabis reform bills into law that formally legalize the use and possession of recreational marijuana in the Garden state: (1) the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” (the “Cannabis Act”) (NJ A21), which legalizes the recreational use and possession of cannabis or cannabis products (collectively “cannabis items”) for adults; (2) a  decriminalization law (NJ A1897), which legalizes the possession of up to six ounces of cannabis and provides for ...

The Westchester County Human Rights Commission (the “Commission”) has announced that the county’s Earned Sick Leave Law, which went into effect on April 10, 2019, has been preempted by New York’s Paid Sick Leave Law (“Law” or “PSLL”), which took effect on September 30, 2020. Westchester County’s law had required that eligible employees accrue one hour of sick time for every 30 hours worked, up to a maximum of 40 hours per year.

As we previously covered, the PSLL applies to all private employers and employees in New York State, and requires employers to provide up to 40 ...

The Illinois Department of Labor (IDOL) has issued March 2021 guidance for employers on “Compensation, Paid Leave and the COVID-19 Vaccine,” advising employers on providing employees with time off and flexibility in order to get the first (and as necessary, the second dose) of the COVID-19 vaccine.

Mandatory Vaccination Programs

The IDOL guidance states that pursuant to the Illinois Minimum Wage Law and the federal Fair Labor Standards Act, if an employer requires employees to get vaccinated, then the time the employee spends getting the vaccine “is likely compensable,” ...

The New York City Council is planning to evaluate how effectively both the City, as an employer, and private employers disseminated and implemented COVID-19 workplace guidance over the past year with the goal of strengthening how the public and private sectors manage future public health emergencies. On February 28, 2021, the Council enacted Int. 2161-2020 (the “Law”), which establishes a board to review the workplace health and safety guidance that agencies and private employers issued to their respective employees during the COVID-19 pandemic. The newly formed board will ...

As featured in #WorkforceWednesday:  In the past week, regulatory withdrawals, rollbacks, or new proposed rules are impacting everything from COVID-19 vaccine incentives to joint-employer status.

We previously discussed the EEOC’s proposed new wellness program incentive rules under the ADA and GINA in our post, How Big Can the Carrot Be?  The proposed rules were to replace the EEOC’s previous “health-contingent” wellness program regulations, which had been struck down by the U.S. District Court for the District of Columbia because they allegedly permitted large incentives that the court found were essentially coercive and thus in violation of the ADA and GINA proscriptions permitting only voluntary disclosures of disability or genetic-related information ...

As featured in #WorkforceWednesday:  This week on our special podcast series, Employers and the New Administration, we look at how the Biden administration’s approach to wage and hour issues will impact employers. Special podcast episodes air every other #WorkforceWednesday.

The Wage and Hour Division of the U.S. Department of Labor (DOL) has already adopted the Biden administration’s commitment to enforcement, its movement against arbitration agreements, and a fresh view on worker classification. What other wage and hour developments can employers expect under ...

As we previously reported, the Massachusetts Department of Family and Medical Leave (“DFML” or the “Department”) continues to provide guidance as it rolls out the state’s Paid Family and Medical Leave program (“PFML” or the “law”), which provides eligible workers with partial income replacement benefits for qualifying reasons.  As a reminder, beginning January 1, 2021, workers may take paid family leave to: (i) bond with a newborn, newly adopted child, or new foster child; (ii) manage family affairs for a family member who is on active military duty in a ...

As featured in #WorkforceWednesday:  This week kicks off Employers and the New Administration, a special podcast series on how the Biden administration’s first 100 days will impact employers. In this episode, attorney David Garland interviews attorney Gregory Keating on what the nomination of Marty Walsh as Labor Secretary means for employers.

The series will air every other week in #WorkforceWednesday and on your preferred podcast platform.

See below for the video and the extended podcast edition. Visit our site for more news.

Video: YouTube, Vimeo, Instagram.

In our previous blog, we featured the California Privacy Rights Act’s Enhanced Cybersecurity Safeguards.[1] We now highlight significant privacy safeguards under the California Privacy Rights Act (“CPRA”) that will require advance planning in preparation for its January 1, 2023 effective date.[2] These new requirements will impact the collection and use of personal information across each organization. In particular, businesses, at a minimum, will need to assess and plan for:

• the effective implementation of data minimization policies, practices, and ...

In 2019, the Connecticut legislature passed sweeping changes to the state’s existing Family and Medical Leave Act, about which we previously reported here.  One of the most significant changes is that beginning in 2022, eligible employees will be entitled to paid family and medical leave.  Although the paid leave requirement does not take effect until next year, there are a number of 2021 deadlines about which employers should be aware.

Website and Mandatory Employer Registration

The 2019 amendments to the PFMLA created the Connecticut Paid Leave Authority (the ...

On January 29, 2021, the Occupational Safety and Health Administration (OSHA) published revised COVID-19 guidance to help employers identify risks and determine appropriate control measures to protect workers from COVID-19 exposure. The guidance entitled, "Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace"  “(the “Guidance”) is not mandatory, but it is likely a precursor to enforcement standards that are also under review by OSHA.

On his first full day in office, President Biden directed OSHA to issue this revised ...

On January 20, 2021, Mayor Jim Kenney signed legislation amending the Philadelphia Fair Practices Ordinance, which prohibits covered employers from procuring, considering, or otherwise using a job applicant’s or employee’s credit-related information in connection with hiring, discharge, tenure, promotion, discipline, or consideration of any other term, condition, or privilege of employment with respect to such employee or applicant.

The amendment, which takes effect on February 20, 2021, expands the scope of covered employers to include financial institutions and ...

As featured in #WorkforceWednesday:  This week, we look at leadership changes and new religious guidance from the Equal Employment Opportunity Commission.

Video: YouTube, Vimeo, Instagram.

On his first day in Office, President Biden issued Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” (“Executive Order”), stating that “[i]t is . . . the policy of [his] Administration that the Federal Government should pursue a comprehensive approach to advancing equity for all.” The Executive Order revokes President Trump’s Executive Order 13950, which had imposed restrictions on workplace diversity training under the guise of combatting race and sex stereotyping.

As we reported in our ...

On January 21, 2021, in an effort to provide enforcement of more stringent worker safety standards, President Biden issued an Executive Order (‘EO”) on Protecting Worker Health and Safety. The EO specifically orders the Occupational Safety and Health Administration (“OSHA”) of the Department of Labor to:

1. issue, within two weeks of the date of the EO, revised guidance to employers on workplace safety during the COVID-19 pandemic;
2. consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such ...

On December 21, 2020, Congress passed the Consolidated Appropriations Act of 2021 (CAA) which modifies or extends to March 14, 2021 many of the relief programs first created in March 2020 by the Coronavirus Aid, Relief and Economic Security Act (CARES Act), including three expanded unemployment insurance benefits programs (which we previously blogged about here) and a new benefit program for “mixed earners”.  We provide here a summary of the updates to those programs.

Federal Pandemic Unemployment Compensation

The CAA includes a modified version of the Federal Pandemic ...

Many employers have established wellness programs to promote employee health and, in doing so, help counter the ever increasing costs associated with employer-sponsored health benefit plans. Often employers want to establish programs that provide employees with incentives to achieve certain health outcomes, such as smoking cessation or weight loss. Employers must exercise caution in creating such health-contingent wellness programs, which necessarily require employees to disclose health information, because the Americans with Disabilities Act (“ADA”) and the ...

On January 14, 2021, President-elect Joe Biden released his $1.9 trillion emergency stimulus plan, designed primarily to guide the country through the next medical and economic stages of the COVID-19 pandemic.  The American Rescue Plan (“ARP”) also includes non-COVID-19 related proposals, such as a mandatory $15 per hour minimum wage and funding to improve cybersecurity.

The following is a non-comprehensive overview of the ARP, which will require Congressional legislative passage.

On December 27, 2020, President Donald Trump signed into law a $900 billion pandemic relief bill that provides extended relief for qualified student loan borrowers. Known as the “Heroes Act,” the stimulus package is a win for borrowers seeking student loan repayment from their employers.

The initial $2.2 trillion stimulus package that Congress passed in March 2020 – the “Cares Act” –temporarily expanded Section 127 of the Internal Revenue Code (the “IRC”) to permit employers to make tax-free payments of up to $5,250 during calendar year 2020 towards employees’ ...

As featured in #WorkforceWednesday:  With President-Elect Biden's inauguration next week, and the Democrats taking a narrow majority in both houses of Congress, we’re likely to see shifts in policy at the agencies that regulate employment. Attorney Robert O'Hara discusses what we're likely to see coming out of the EEOC in the near term, and how the change in party control could affect the agency moving forward.

Video: YouTube, Vimeo.

On October 1, 2020, numerous laws in Maryland providing expanded protections for both existing employees and job applicants addressing race and sex discrimination, pay equity, and wage transparency went into effect.  As we begin a new year, employers should review these new laws to ensure compliance.

Expansion of Employers’ Notification and Reporting Obligations for Workforce Layoffs

Maryland has instituted its own version of the federal Worker Adjustment and Retraining Notification (“WARN”) Act with the passage of H.B. 1018/S.B. 780. This “mini” WARN Act revises ...

The California Privacy Rights Act (“CPRA”) leaps forward on cybersecurity by amending the California Consumer Privacy Act (“CCPA”) to impose enhanced protections. The CPRA enhancements apply to “for profit” companies and other organizations: (a) with more than $25 million in gross revenues in the preceding calendar year, or (b) that annually buy, sell or share the personal information of 100,000 or more consumers or households, or (c) that derive at least 50 percent of their annual revenue from selling or sharing consumer personal information ...

As featured in #WorkforceWednesday:  President-Elect Biden has chosen Marty Walsh to serve as Labor Secretary in his administration. Walsh is Boston’s mayor and a former top union leader. Attorney David Garland tells us more.

Video: YouTube, Vimeo, Instagram.

On October 30, 2020, the Department of Labor (DOL) adopted the Final Rule amending the Investment Duties DOL Regulation, §2550.404a-1, which governs the obligations of ERISA fiduciaries when selecting investments for ERISA plans.  The Final Rule made several changes to the June 2020 Proposed Rule, which proposed to define the duties of fiduciaries when considering investments that promote environmental, social, and corporate governance goals (ESG investments).  As reported here, DOL received extensive and largely negative comments to the Proposed Rule and most of the ...

As many employers approach their one-year anniversary of working from home, it is obvious that the COVID-19 pandemic has permanently changed both how and where we work. By 2025, an estimated 36.2 million Americans will be working remotely—a staggering 87% increase from pre-pandemic levels.  Moreover, surveys reveal that company leaders plan to permit employees to work from home at least part of the time upon reopening their offices. However, a remote workforce poses a challenge for employers that must display certain notices and posters in their workplaces to advise employees of ...

On December 23, 2020, Governor Cuomo signed into law Assembly Bill A5240A (“Law”), amending the State’s Civil Rights Law and Education Law to make all single-occupancy bathrooms located in public places, including schools, restaurants, bars, and other establishments, gender-neutral. The Law closely mirrors a similar New York City law passed in 2016, and marks a step toward equal access to public space for transgender and gender nonconforming individuals across the State.

Much like its New York City counterpart, the Law does not require businesses or schools to build new ...

As featured in #WorkforceWednesday:  The Department of Labor will look very different under President-Elect Biden from how it did under President Trump, and the changes could come in the early days of Biden’s presidency. Attorney Paul DeCamp tells us more.

Video: YouTube, Vimeo, Instagram.

Proposed Paid Sick Leave Law Regulations

As we previously reported, New York State’s Paid Sick Leave Law (“PSLL”) went into effect on September 30, 2020. The PSLL requires all New York private employers to provide paid sick leave, which employees may begin using as of January 1, 2021. The amount of sick leave that employers must provide their employees annually depends on the employer’s size and income. On December 9, 2020, the NY Department of Labor published proposed regulations clarifying a number of issues relating to the PSLL as summarized below.

Definitions

• Defines ...

The first COVID-19 vaccines have started being shipped across the U.S. with the expectation that millions of doses will be administered over the next few weeks, with many times more over the coming months.  This is unequivocally good news and reason for optimism.  Meanwhile, however, the pandemic continues to spread nationwide and the numbers are rising rapidly.

The unabated second wave spike of COVID-19 infections arriving with the holiday season and our traditional time for gatherings has led governors, mayors and health departments across the country to tighten restrictions on ...

On December 2, 2020, the Equal Employment Opportunity Commission (“EEOC”) announced a new interactive data search and mapping tool, named “EEOC Explore,” which permits users to access “the most current, granular, and privacy protected aggregate EEO-1 data publicly available,” covering over 56 million employees and 73,000 employers across the United States. According to the agency, EEOC Explore “enables stakeholders to explore and compare data trends across a number of categories, including location, sex, race and ethnicity, and industry sector without the ...

As featured in #WorkforceWednesday:  News that a potential COVID-19 vaccine could be imminent brings employers to their next challenge: workplace vaccine policies and procedures. Attorneys Jennifer Barna and Nathaniel M. Glasser tell us more. You can also read about the issues in Business Insider (subscription required).

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Just one week after ordering new business restrictions to combat the recent surge of COVID-19, Governor Larry Hogan announced further mitigation measures in Maryland that will dial back business operations.

On November 17, 2020, Governor Hogan issued Executive Order 20-11-17-01, which amends and restates Executive Order 20-11-10-01 (which we previously summarized here).  The amended order goes into effect at 5:00 p.m. on Friday, November 20, 2020.

The amended order, titled “Regulating Certain Businesses and Facilities and Generally Requiring Use of Face Coverings,” has ...

The final installment of a 10-part series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.

Did COVID-19 end sexual harassment?

Did a global pandemic that sent humanity indoors, forcing many of us to work remotely (if at all) and to be socially distant while avoiding handshakes and touching obviate the need for such an obvious rule?  Well, not exactly.  I have been advising clients on this rule and the ripe environment for harassment claims since the pandemic began, and in candor, my position has been met with varying degrees of skepticism (yes, you can still see ...

Michigan recently announced two COVID-19 developments that will impact employers and their workplaces.  Most recently, the Michigan Department of Health and Human Services (MDHHS) issued new restrictions for business operations in the state that are set to take effect on November 18 and last through December 8, 2020 (the “Three Week Pause Order”).  The Three Week Pause Order followed an announcement late last week by the Michigan Occupational Safety and Health Administration (MIOSHA) of a State Emphasis Program (SEP) focused on in-door activities and venues, including ...

As COVID-19 cases continue to rise across the nation, the District of Columbia, Maryland, and Virginia all recently have implemented additional mitigation measures that impact business operations.  Below is a summary of the key restrictions of which businesses within the DMV should be aware.

District of Columbia

The District of Columbia maintains a compilation of Phase Two Guidance to assist all businesses in reopening (or staying open) responsibly.  Recently, on November 6, 2020, Mayor Muriel Bowser issued Mayor’s Order 2020-110, which modifies previous quarantine ...

On November 11, 2020, the European Data Protection Board (EDPB) issued eagerly awaited guidance for complying with the requirements of the General Data Protection Regulation (GDPR) for protecting the privacy rights of individuals in their personal data subject to potential transfer from the European Union (EU) to the United States and other countries. The guidance comes in the wake of the uncertainly following the Court of Justice’s July 16, 2020 decision in Schrems II invalidating the EU-US Privacy Shield and upholding the use of standard contractual clauses as a permissible ...

As featured in #WorkforceWednesday:  California voters passed Proposition 22, which will exempt app-based transportation and delivery network companies from the state’s AB5 worker classification law. Attorneys Amy Ramsey and Kevin Sullivan tell us what this means for CA employers and the gig economy more broadly. You can read more here.

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Take a deep breath. Now exhale. While the country awaits the results of the presidential race and many others that are still too close to call, the 2020 election made one thing clear: the march toward 50-state legalization of marijuana (and now perhaps other drugs) continues. On Tuesday, voters in five states decided to legalize recreational or medical marijuana, while Oregon voted to decriminalize most hard drugs, including heroin and cocaine. We summarize each ballot initiative and its outcome below.

Arizona

Ballot Summary: Although a similar initiative was narrowly defeated at ...

Although cannabis (marijuana) remains an illegal substance under federal law, companies in the cannabis industry are not exempt from complying with federal laws in general. A recent flurry of complaints filed in federal courts and with federal administrative agencies have highlighted the obligation of companies in the cannabis industry to comply with Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act of 1967 (the “ADEA”), and the Americans with Disabilities Act (the “ADA”). These employers must also remain compliant ...

As featured in #WorkforceWednesday:  This week, workplace safety and liability issues are top of mind while employers also look ahead to the tax issues telecommuting will cause this tax season.

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As featured in #WorkforceWednesday:  Employers fear that the COVID-19 pandemic could undo recent progress towards workforce equity, with women and caregivers leaving the workforce in droves. Flexible time off, remote work policies, and employee benefits, like on-site child care, are just a few options employers can deploy to retain female talent. Learn more about the legal issues.

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As COVID-19 cases once again surge across the country, Washington, D.C. employers must remember to provide both paid and unpaid leave under the new District of Columbia Coronavirus Support Temporary Amendment Act of 2020 (D.C. Law 23-130) (the “Act”).  Although passed in July 2020, the Act formally became effective on October 9, 2020 and will remain in effect through the end of the declared COVID-19 public health emergency—currently December 31, 2021.  The law repeals the emergency laws that we previously blogged about, but carries over the additional obligations to provide ...

As featured in #WorkforceWednesday: The Centers for Disease Control and Prevention broadened its definition of “close contact.” Now, spending a total of 15 minutes within six feet of an infected individual over a 24-hour period counts as close contact. Previously, it was an exposure period of 15 consecutive minutes.  Attorney Denise Dadika explains what this change means for employers.

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As the pandemic continues into 2021, many employers are contending with their workers’ significantly increased caregiving responsibilities.  Parents – many without viable day care or other childcare options – must try to balance work with the challenges of caring for their children and overseeing their education (and entertainment). Other employees find themselves at the forefront of caregiving for sick family members and for family members at high risk for serious illness, if they become infected by COVID-19.

Recent data has revealed the disproportionate impact that ...

October has brought a weekly flurry of changes to Michigan’s COVID-19 legal landscape. [1] On Thursday October 22, 2020, Governor Whitmer added to this recent activity by signing three bills into law that provide employers with significant liability protection and employees with job protections related to COVID-19.

Employer Protections: Liability Shield

Titled the “COVID-19 Response and Reopening Liability Assurance Act,” HB 6030 provides employers with immunity from liability for a “COVID-19 claim” as long as the employer acted in compliance with all federal ...

Part 9 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.

If the Rules of the Road: Return to Work in the Time of COVID-19 series has given you any takeaways, it should be that it pays to be prepared, to be safe, and to anticipate workplace issues before they arise. This means taking stock of what has happened in the past year and what challenges lie ahead. There is almost nothing the pandemic has not affected in our lives, or in business and the workplace and the challenges have been daunting. Challenges have included, coping with illness, the stressors of ...

As featured in #WorkforceWednesday:  This week, federal contractors receive guidance on diversity training, while many employers are committing to diversity and inclusion anew with updated plans and time off to vote.

Video: YouTube, Vimeo, MP4, Instagram.

At the onset of the COVID-19 pandemic, Governor Ned Lamont declared a public health and civil preparedness emergency in Connecticut.  In connection with this declaration, Governor Lamont has issued numerous Executive Orders throughout the pandemic.  The Executive Orders were set to expire on September 9, 2020, if they were not terminated earlier.

On September 1, 2020, Governor Lamont extended the existing public health and civil preparedness emergency until February 9, 2021. In addition, on September 8, 2020, Governor Lamont issued Executive Order 9A, which reissues and extends ...

In the last several years, a growing number of states and municipalities have passed “ban the box” laws that to varying degrees prohibit employers from inquiring into a job applicant’s criminal background until later in the hiring process and/or restrict employers from using certain criminal conviction information in connection with their hiring decisions.  Recently, St. Louis, Missouri joined this group, while California and Hawaii expanded their existing prohibitions on criminal history inquiries.

St. Louis, Missouri

Under the St. Louis ban the box Ordinance (the ...

Part 8 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.

If there has been one, singular guiding principle or mantra that has sustained us, challenged us, and in some cases, inspired us over these last few months, this is it: “Don’t Waste the Crisis.” It is also the mantra that will propel us forward.

Flashback to the eve of Governor Cuomo’s Executive Order in March, shutting down New York State and New York City as the nation and the world watched. In the countdown leading up to its effective date, there was a palpable feeling of existential ...

The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) recently updated its COVID-19 Frequently Asked Questions (“FAQ”) regarding employers’ reporting obligations during the COVID-19 pandemic.

As previously reported, effective as of May 26, 2020, OSHA has declared COVID-19 a recordable illness for all employers.  Thus, employers are responsible for recording workplace cases of COVID-19 on a OSHA 300 Log if the case:  (1) is confirmed COVID-19, as defined by Centers for Disease Control and Prevention (“CDC”); (2) is ...

In this installment of Epstein Becker Green’s “Class Action Avoidance” webinar series, attorneys Lauri F. Rasnick and Frank C. Morris, Jr. address potential discrimination class actions related to office reopenings, the changing way in which we work, and the impact that the pandemic has had on individuals in protected classes.

As many employers think about reopening their offices and other workspaces, they should consider how they do so very carefully in order to avoid decisions that may adversely impact certain protected groups or lead to disparate decision making.

As featured in #WorkforceWednesday:  While some might expect U.S. Supreme Court nominee Amy Coney Barrett to be a pro-employer judge, her record on labor and employment decisions could tell a different story. Attorney David Garland discusses Judge Barrett’s record and what it could mean for employers should she be confirmed to the High Court. Read more about Judge Barrett’s record (subscription required).

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After repeated introductions over the course of several years in both the U.S. House of Representatives and the Senate, on September 14, 2020, the House passed HR 2694, the Pregnant Workers Fairness Act (“PWFA”). The stated purpose of the legislation is to “eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.” If passed by the Senate and signed into law, the Act would ...

As featured in #WorkforceWednesday:  Workplace incidents—ranging from shootings and assaults to less severe violence—have spiked across a variety of industries during the COVID-19 pandemic. Attorney Beth McManus discusses the steps employers can take to address and prevent workplace violence in the current environment. Read more.

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As featured in #WorkforceWednesday:  The appropriate response to an employee’s controversial off-duty or other conduct, particularly conduct that occurs on social media, has long been an uncertain area for employers. And in these polarized times, that uncertainty is only growing. Attorney Adam Forman speaks to how employers can legally respond to offensive employee conduct that occurs beyond the workplace.

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Part 7 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.

What can jazz teach us about COVID-19? What lessons can we learn from the great masters like Miles Davis, John Coltrane, and Duke Ellington at this very moment?

As it turns out—a lot.

In a unique way, jazz, a truly American, musical art form, perhaps perfectly embodies this moment. Jazz is about democracy – about different people, from different backgrounds, experiences, ethnicities, coming together – inclusively – to make music and make things happen – to swing. Jazz is about ...

The Connecticut Commission on Human Rights and Opportunities (“CHRO”) recently extended the deadline for employers to provide sexual harassment training for their employees, from October 1, 2020, to January 1, 2021, due to the COVID-19 pandemic. The CHRO announcement is available here.

The CHRO website states that this is a blanket extension, and employers do not need to make a request to obtain the extension. Previously, the CHRO announced a 90-day extension for employers, under limited circumstances, which required employers to make a written request to the CHRO seeking an ...

On September 17, 2020, California Governor Gavin Newsom signed Senate Bill 1383 (“SB 1383“), expanding job-protected family leave for employees of companies with five or more employees. Previously, only employees of companies with 20 or more employees were entitled to these protections. According to the Governor’s office, this law, which becomes effective January 1, 2021, will expand job-protected family leave to nearly six million additional Californians.

Existing Law

The California Family Rights Act (“CFRA”) currently makes it any an unlawful employment ...