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, against Brookline, its Board of Selectmen, and several Brookline representatives, including a purported elected and appointed official, Stanley Spiegel. The complaint alleged that defendants had discriminated against Alston because of his race by harassing him and terminating his employment, and retaliated against him in violation of federal civil rights statutes. With respect to Spiegel, the complaint contended that, after Alston had made allegations of discrimination against Brookline, Spiegel distributed to other elected officials copies of a letter that “attacked . . . Alston’s courage and credibility” that had been published in a local newspaper. The complaint also asserted that Spiegel had told an individual who supported Alston in pursuing his claims against Brookline that “she would not support Alston if she knew the ‘real story’ contained in Alston’s personnel file.”

After Brookline and the Board moved to dismiss the complaint, Ames filed a first amended complaint. Spiegel then moved to dismiss that complaint and sought Rule 11 sanctions based on the absence of any allegation that accused Spiegel of actionable wrongdoing. Without addressing Spiegel’s motion for sanctions, the court reminded Ames of his obligations under Rule 11, suggested the claims could not be bolstered by “clearer pleading,” but nevertheless gave him an opportunity to file a second amended complaint, which he did.

Ames’s second amended complaint alleged that Spiegel enforced a discriminatory policy “in concert” with Brookline, defended the Board’s conduct, and frequently consulted with members of the Board about unspecified matters. It also added that, when Spiegel circulated the letter that allegedly “attacked” Alston, he pointed out a quotation cautioning readers not to “rush to judgment” about Alston’s case. Finally, the second amended complaint asserted that Spiegel became “extremely agitated” when he interacted with the Alston supporter and told her he was “disgusted.”

Again, Spiegel filed motions to dismiss and for sanctions. This time, the court granted both motions. With respect to the motion for sanctions, the court found that, although it had given Ames “the opportunity to replead against Spiegel,” it did not give him “license to file a frivolous case for the second time.” To “deter future misconduct,” the court ordered Ames to pay over $20,000 as a sanction under Rule 11. Ames appealed this decision.

Analysis

Before addressing the merits of Ames’s appeal, the First Circuit set the stage by outlining the contours of Rule 11. Rule 11 allows a court to sanction a lawyer “for advocating a frivolous position, pursuing an unfounded claim, or filing a lawsuit for some improper purpose.” Claims are frivolous when they are “either not well-grounded in fact or unwarranted by existing law or a good faith argument for an extension, modification[,] or reversal of existing law.” With this standard in mind, Ames argued that the First Circuit should reverse the sanctions order for three reasons, all of which the court rejected.

First, Ames argued that the lower court allowed him to file the second amended complaint, suggesting that it did not consider his claims to be frivolous. The First Circuit rejected this argument. The first amended complaint contained only two allegations against Spiegel – namely, his distribution of a letter to other elected officials and his confrontation with the Alston supporter – and did not link either of them to Alston’s discrimination or retaliation claims. The second amended complaint added a few additional allegations against Spiegel, but they were irrelevant, failed to connect Spiegel to the adverse employment actions at issue, and did not suggest that Spiegel harbored any racial animus toward Alston – a fact the First Circuit found “stunning” in a discrimination case. Notably, although the second amended complaint did not “disregar[d] a statute or circuit precedent directly on point,” that was beside the point. Rather, the inquiry for Rule 11 purposes is whether a “reasonable attorney” “‘would have believed [there was] evidence to support [the] claims.’” Given the dearth of allegations of wrongdoing against Spiegel, the court “answered this question in the negative.”

Second, Ames contended that his client’s claims against Spiegel based on his telling the Alston supporter that she would not support him if she knew the “real story” were an extension of existing law. Specifically, Ames pointed to a 2013 trial court decision that held that an “employer’s dissemination of ‘severely damaging information’ about [an employee] to a media website could support a retaliation claim” and indicated that even a threat of such dissemination could be considered retaliatory. The First Circuit found this analogy unavailing because Ames did not allege that Spiegel was Alston’s employer, had “disseminated any negative information about Alston,” or had even “threaten[ed] any such dissemination.”

Finally, Ames asserted that plaintiffs’ lawyers would be unlikely to replead claims that have been dismissed to preserve their right to appeal the dismissal out of fear of being sanctioned. According to Ames, this was particularly true where, as here, the trial court suggested that the claims were frivolous in its decision allowing them to be refiled. The First Circuit disagreed, reasoning that “the claims against Spiegel [were] frivolous not because the [lower court] predicted as much . . . but because – despite having had the benefit of a warning that the allegations against Spiegel failed to comply with the most basic of pleading requirements – Ames stubbornly persisted in rehashing essentially the same claims.”

Finding no merit in any of Ames’s arguments, the First Circuit denied the appeal and upheld the sanctions. In doing so, it noted its “respect [for] a lawyer’s zealous advocacy for his client,” but cautioned that “[w]hen – as in this case – zealous advocacy is based on nothing more than a wing and a prayer, it is sanctionable.”

Takeaways for Employers

Rule 11 sets a high bar for imposing sanctions on litigants and their attorneys. That bar is not, however, insurmountable. Alston serves as a reminder to companies that the Federal Rules of Civil Procedure provide them with a powerful tool to deter frivolous employment claims. Sometimes, the best defense is a good offense.

After keeping us waiting with baited breath for several years, the Eleventh Circuit finally broke its silence – issuing its long-anticipated ruling in Gil v. Winn-Dixie Stores, holding that websites are not covered as places of public accommodation under Title III of the Americans with Disabilities Act (“Title III” or “ADA”).  In doing so, the Court reversed and vacated the district court’s decision finding that defendant, Winn-Dixie Stores, violated Title III by failing to maintain a website that is accessible to individuals, who are blind or have low vision.

Unfortunately, to the extent that businesses, individuals, and disability rights advocates were hoping that this decision would help provide some much needed definitive guidance in this area of the law, they are all undoubtedly disappointed.  While the decision should diminish plaintiffs’ abilities to successfully mount website accessibility challenges against certain types of businesses/websites in the Eleventh Circuit, it does little to immediately change the current state of the law at the national level.

Notwithstanding, the collective 61-page majority and dissenting opinions, do contain additional analysis into this ever-developing area.  Below are three critical takeaways from this long-awaited decision, as well as our thoughts in looking ahead.

Takeaway #1: According to the Eleventh Circuit, Websites Are Not Places of Public Accommodation Under The ADA

The majority opinion reached its decision by adopting an extremely strict interpretation of the ADA – diverging from many district and appeals courts in other circuits – holding that websites do not qualify as “places of public accommodation” (“PPA”) under Title III, and accordingly, the plaintiff’s inability to access the site, in and of itself, is not a Title III violation.

As drafted, Title III applies to PPA, which, as the Court correctly notes, are expressly defined as physical, tangible, places, like retail stores, hotels, restaurants, and theaters.  Notwithstanding the ADA’s examples of PPA, to date, a number of courts in other Circuits have nevertheless found that businesses must make their websites accessible under Title III, by utilizing one of two theories:

  • the “spirit of the law” theory, which posits that, because the ADA is a broad-reaching civil rights law meant to provide individuals with disabilities with full and equal access to various facets of society, it follows that the ADA must be read to evolve as society and technology evolve, and websites offering goods and services to the public are the modern equivalents of many of the brick and mortar PPA defined in the original text and regulations governing the ADA and, therefore, access must be provided; or
  • the “nexus” theory, which provides that websites that have a “nexus” to physical PPA, must be accessible to individuals with disabilities, because they are an extension of the goods/services/amenities being offered by the clearly-covered PPA.

Here, the majority outright rejected the “spirit of the law” approach as being contrary to the plain and unambiguous text of the ADA and, moreover, chose not to adopt the “nexus” theory (prevalent in the Ninth Circuit’s decision in Robles v. Domino’s), noting it was not something that had been previously followed in the Eleventh Circuit.

Instead, the Eleventh Circuit held that the impetus is on Congress to amend the ADA if its protections should be extended to websites, and absent Congress broadening the definition of PPA to include websites, it declined to “extend ADA liability to the facts presented to [it] here.”

Takeaway #2: The Eleventh Circuit Entertains an Alternative Theory of Potential Liability Under Title III, But Finds That It Still Doesn’t Result in Winn-Dixie’s Website Violating Title III

Having rejected the two theories noted above, the Appellate Court adopted an alternative, “third” theory of liability – the “intangible barrier” theory.  Specifically, the Court held that if a website is inaccessible to individuals with disabilities, that website would violate Title III only where it creates an “intangible barrier” to accessing goods/services in a physical, brick and mortar location.  The Court found that the inaccessibility of Winn-Dixie’s website did not present an “intangible barrier,” because it has a “limited use;” it is not the sole access point to the company’s stores, and it does not prevent the plaintiff from enjoying or accessing the goods/services that Winn-Dixie offers in its stores.  (Indeed, the Court noted that the plaintiff had admittedly shopped at one of Winn-Dixie’s stores for years before he brought his lawsuit).  Critically, the Court noted that Winn-Dixie’s website does not allow users to make purchases on the site; to the contrary, any purchases are made at the stores, and it held that anything a user could do on the website, it could also do at the stores.

Importantly, the majority was not swayed by the plaintiff’s arguments that the website’s inaccessibility forced him to confront additional inconveniences that individuals without disabilities, who could use the website, would not encounter (e.g., longer in-person wait times to pick up medications; inability to independently access coupons at home), and rejected his contention that these inequities denied him full and equal enjoyment of the grocery store or met the “intangible barrier” test.

Takeaway #3: This Decision’s Implications Are Limited

Ultimately, while this decision is sure to garner a significant amount of coverage, and does certainly make it harder to bring website accessibility claims under the ADA in the Eleventh Circuit, for the near-term future, it is unlikely to have a significant impact on this area of the law at a national level.

Although the majority held that Winn-Dixie did not violate Title III by maintaining an inaccessible website, it took great care to mention more than once that the fact that the website did not contain an e-commerce component linked to the store was a factor in reaching its decision.

Undoubtedly, the decision provides businesses with ammunition to aggressively fight back against cases filed in the Eleventh Circuit where: (i) a business is cyber-only and entirely unconnected to a physical PPA; or (ii) the website in question is predominantly informational and does not contain an e-commerce component.  Given that a significant number of website accessibility lawsuits and demand letters continue to emanate from Florida, this should provide relief to Florida businesses that fit into one of these two categories.

As noted above, the Eleventh Circuit’s decision is inconsistent with those in several other circuits and district courts, and accordingly, is unlikely to deter plaintiffs from simply switching forums and asserting claims in jurisdictions that have adopted more pro-plaintiff theories of the law, such as New York, Massachusetts, Vermont, or California, where Title III and/or state/local law currently require accessible websites.

Looking Ahead

Plaintiff’s counsel in this case has vowed to appeal to the Supreme Court.  While the Supreme Court previously rejected Domino’s efforts to seek review of its case in the Ninth Circuit, it is possible that the tension between the two cases will finally be enough for the Court to grant certiorari.

Separately, while recent efforts over the past six months have proven unsuccessful, there is bipartisan interest among some members of Congress to amend the ADA to expressly address digital accessibility.  Similarly, we anticipate that if Congress confirms Kristen Clarke to serve as the head of the U.S. Department of Justice’s Civil Right Division (“DOJ”), DOJ’s Disability Rights Section is apt to work with the U.S. Access Board to reignite prior efforts under the Obama Administration to promulgate and adopt federal regulations governing website and mobile application accessibility.  Interested parties should keep an eye out for announcements of such developments this July around the anniversary of the ADA and will, of course, report on any such announcements.

In the interim, as we’ve noted for years, the best way to currently avoid falling prey to website accessibility lawsuits like Gil v. Winn-Dixie Stores and Robles v. Domino’s’s is to achieve substantial conformance with the Web Content Accessibility Guidelines (“WCAG”) 2.1 Levels A and AA (as confirmed via human-based auditing from both the code and user perspectives), maintain internal digital accessibility policies and corporate governance procedures, include website accessibility obligations in all contracts with third-party vendors, provide training to relevant employees regarding developing, operating, and maintaining an accessible website, and ensure that these efforts are ongoing, and not simply one-time efforts.

As featured in #WorkforceWednesday: This week on our special podcast series, Employers and the New Administration, employers await action from two agencies: the Office of Federal Contract Compliance Programs and the Occupational Safety and Health Administration. Guest attorney Bob O’Hara discusses the regulatory actions employers should anticipate. 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 Biden administration’s first 100 days. Special podcast episodes air every other #WorkforceWednesday. Subscribe on your preferred podcast platform.

See below for the video edition and the extended audio podcast:

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 States and the State of Michigan against his employer, William Beaumont Hospital, alleging that it had violated the FCA and a comparable Michigan law by paying physicians for referrals of Medicare, Medicaid, and TRICARE patients. Felten also asserted a retaliation claim against Beaumont based on actions it had allegedly taken against him because he “insist[ed] on compliance with the law.” The United States and Michigan took over the prosecution of their claims and settled them against Beaumont, leaving only Felten’s claims for retaliation and attorneys’ fees and costs before the court.

While those claims were pending, Beaumont terminated Felten’s employment. According to Felten, Beaumont then “intentionally maligned [him] . . . in retaliation for his reports of its unlawful conduct.” As a result, Felten claimed he was “unable to obtain a comparable position in academic medicine.” Based on the actions Beaumont allegedly took toward Felten after his termination, Felten filed a claim under the FCA’s anti-retaliation provision.

In response, Beaumont moved to dismiss Felten’s post-employment retaliation claim. The trial court granted that motion, “holding that the FCA’s anti-retaliation provision does not extend to retaliation against former employees.” It reasoned that 31 U.S.C. § 3730(h)(1)’s reference to “in the terms and conditions of employment” “mean[t] that the provision’s coverage encompasses only conduct occurring during the course of a plaintiff’s employment.”

Decision

In a split decision, the Sixth Circuit reversed the lower court’s dismissal of Felten’s claim. The court recognized that the main issue was the “temporal meaning of the word ‘employee’ and the prohibited employer conduct in the anti-retaliation provision.” It began the analysis by reviewing the text of the FCA’s anti-retaliation provision to determine if “the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case,” which if so, would end the inquiry, and if not, would require a review of the “broader context” of the statute and statutory purpose. The relevant statutory language provides:

(1) In general.–Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.

(2) Relief.–Relief under paragraph (1) shall include reinstatement with the same seniority status that employee, contractor, or agent would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees. An action under this subsection may be brought in the appropriate district court of the United States for the relief provided in this subsection.

Based on this language, the court found three reasons why extending the statute’s protections to former employees was “the more accurate reading,” versus limiting them to current employees:

  • The statute refers to “[a]ny employee[s],” not just “current employees.” Additionally, the “in the terms and conditions of employment” qualifier that the lower court relied on does not imply a temporal limitation, since “many terms and conditions of employment . . . can persist after an employee’s termination,” such as restrictive covenants and severance pay.
  • The FCA does not define “employee,” and dictionaries do not limit the definition of “employee” to “current employee.”
  • The remedial scheme of the FCA is expansive and ostensibly provides former employees with relief in the form of reinstatement, “special damages,” and potentially other remedies.

Despite these textual clues suggesting that § 3730(h)(1) could be read to extend to former employees, the Sixth Circuit found that the statute’s use of “employee” was ambiguous. To resolve that ambiguity, the court looked to the purposes of the FCA. “The FCA is designed to ‘discourage fraud against the government.’” Its anti-retaliation provision promotes that end by encouraging employees to report fraud by “‘protect[ing] persons who assist [in its] discovery and prosecution.’” “If employers can simply threaten, harass, and discriminate against employees without repercussion as long as they fire them first,” the court reasoned, “potential whistleblowers could be dissuaded from reporting fraud against the government.” For that reason, the Sixth Circuit held “that the anti-retaliation provision of the FCA may be invoked by a former employee for post-termination retaliation by a former employer.”

What Employers Should Do Now

Although Beaumont is binding precedent only in the Sixth Circuit, it is a useful reminder to employers throughout the United States that negative statements about a former employee may potentially give rise to costly litigation and potential liability under various theories, such as whistleblower retaliation under the FCA (in the Sixth Circuit and potentially in any state outside of the Tenth Circuit), retaliation under Title VII of the Civil Rights Act, defamation, and intentional interference with prospective business relationships. As a result, employers should train managers (up to and including executives) and human resources professionals on proper communications about a former employee’s performance and separation, and should consult with counsel about the content of such communications in high-risk situations.

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[1] Potts v. Center for Excellence in Higher Education, Inc. (10th Cir 2018).

As part of the American Rescue Plan Act of 2021 (“ARPA”), signed into law on March 11, 2021, employers will be required to provide, on a tax-free basis, a subsidy to employees and their qualified beneficiaries to pay 100% of the COBRA continuation premium for group health plan coverage. This subsidy applies only to “assistance eligible individuals,” who are eligible for COBRA as a result of an involuntary termination of employment or a reduction in hours and who are, or could have been, eligible for COBRA during the period of April 1, 2021 through September 30, 2021 (the “Subsidy Period”).

The COBRA subsidy is available to: (1) any eligible individual who is enrolled in COBRA (or will enroll in COBRA) for coverage during the Subsidy Period; and (2) any former employee (who is otherwise an eligible individual) who did not elect COBRA coverage or dropped COBRA coverage prior to April 1st , but would otherwise be within the employee’s 18-month COBRA coverage during the Subsidy Period. Premiums for COBRA-qualified beneficiaries who are eligible for the COBRA subsidy will be paid by the federal government through payroll tax credits against employers’ quarterly Medicare taxes.

  • Plan administrators are required to begin notifying eligible individuals of the COBRA subsidy within 60 days after April 1, 2021 (i.e., by May 31, 2021). This special election opportunity will also allow these individuals to make a prospective COBRA election for the period beginning April 1, 2021, without requiring payment of premiums retroactive to the original loss of coverage, which is a departure from the normal COBRA rules. In such a case, the maximum COBRA period is not extended (that is, it is still counted from the date of the original qualifying event).
  • The COBRA subsidy must be provided to eligible individuals for up to 6-months, from April 1, 2021 through September 30, 2021. Subsidies can end prior to September 30, 2021 if an individual’s original COBRA maximum period of coverage is exhausted, or an individual becomes eligible for Medicare or group health plan coverage. Individuals are required to notify the plan if they become eligible for other group health plan coverage. It is not clear yet whether becoming eligible for coverage under a spouse’s plan will disqualify an otherwise-eligible individual from receiving this coverage.
  • In the coming weeks, the DOL is required to issue model COBRA notices addressing the subsidy availability, extended election period, and subsidy expiration, and we expect the government agencies to issue guidance on various issues related to the subsidy, including the new notice obligations.

Our colleagues Denise Dadika and Vidaur Durazo of Epstein Becker Green have a new post on the Health Employment and Labor blog that will be of interest to our readers: “Changing Floors: Minimum Wage Increases for Health Leaders to Consider”.

The following is an excerpt:

2021 is set to be a landmark year for the number of jurisdictions raising wage floors across the country. According to a National Employment Law Project report, as of January 1, 2021, 20 states and 32 municipalities raised their minimum wage. By the end of 2021, the report tracks that as many as 24 states and 50 municipalities will increase wages for the lowest-paid workers.

Perhaps as a reaction to the steadily growing Fight for $15 movement or in response to the COVID-19 pandemic, 40 cities and counties will have met or exceeded a $15 minimum wage by the end of 2021. Eight states — California, Connecticut, Illinois, Florida, Maryland, Massachusetts, New Jersey, and New York — and the District of Columbia, will raise their state minimum wage to $15 or higher by 2026. Florida voters’ recent approval of a ballot initiative to raise the state’s minimum wage to $15 by 2026 may evidence a shift of public support for an increased minimum wage. Indeed, a 2019 Pew Research Center survey revealed that upwards of two thirds of Americans support a $15 minimum wage. President Biden also supports increasing the minimum wage to $15, and while Congress unsuccessfully sought to include a provision to raise the federal hourly minimum wage from $7.25 to $15 in the recent American Rescue Plan COVID-19 stimulus bill, we expect further action to increase the federal minimum wage.

Click here to read the full post on the Health Employment and Labor Blog.

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 limited to, “wigs, headwraps and hairstyles such as individual braids, cornrows, locs, twists, Bantu knots, afros and afro puffs.”

Connecticut joins several other states, including California, Colorado, Maryland, New York, New Jersey, Virginia and Washington, as well a number of cities and counties, in passing similar CROWN Acts. A number of other states are in the process of enacting similar legislation.  The U.S. House of Representatives passed a federal version of the CROWN Act in September 2020, and it is awaiting a potential vote in the Senate.

Employers should review their policies, particularly their grooming and appearance policies, to ensure they comply with the Act. Employers should also consider training their human resources and employee relations staff, as well as hiring managers and supervisors, on this issue.  Finally, note that the term “ethnic traits historically associated with race” is not limited to just hair texture and protective hairstyles.  Therefore, this law may be interpreted more broadly over time.

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 12, 2021 are eligible for paid leave.”

The FAQs also Clarify or Reiterate the Following Points:

  • The leave mandate applies to each vaccine injection. Thus, if an employee needs two or more doses of the vaccine, he or she is entitled to up to four hours of leave for each
  • Paid vaccination leave is available only for an employee’s need for time off to get vaccinated him or herself; the leave may not be used to assist a relative or another individual in getting vaccinated.
  • An employer may not substitute paid vaccination leave with any other paid leave benefit, such as paid sick time.
  • Although the Law itself is silent on the issue, according to the FAQs, employers may require employees to provide notice of their need to take vaccination leave. While the FAQs do not address the details of such notice, employers should ensure that any notice requirement is reasonable under the circumstances. For instance, an employee may get an appointment “last-minute” because of a cancellation and, thus, may not be able to provide advance notice. On the other hand, employees who require two doses of a vaccine usually are scheduled for their second dose at the time they get their first inoculation. Accordingly, in this situation, it would be reasonable to expect the employee to give advance notice of the date he or she will again need leave to receive the second shot.
  • Although verification also is not addressed by the Law, according to the FAQs, employers may require employees to submit documentation proving that they, in fact, used the leave time to get vaccinated. The FAQs, however, “encourage” employers “to consider any confidentiality requirements applicable to such records prior to requesting proof of vaccination.”
  • Employees must be paid at their regular rate of pay.
  • The Law will sunset on December 31, 2022.

Questions Not Addressed by the FAQs

Neither the Law nor the FAQs distinguish between full-time and part-time employees. Accordingly, employers should play it safe and assume that part-time employees must be treated the same as full-time workers with respect to both the amount of leave time and the rate of pay to which they are entitled.

Further, while the FAQs reiterate that “the rights afforded under this law may be waived in a collective bargaining agreement” (“CBA”) as long as the CBA “specifically reference[s]” the Law, another section of the Law only exempts a CBA (or employer policy) if it grants “a greater number of hours” to get vaccinated for COVID-19. Hence, as the FAQs offer no clarification, prudence warrants that employers subject to a CBA meet both conditions for a waiver to be valid and for an employer to be exempt from the Law, i.e., the CBA must provide at least four hours of leave for each required injection and it must contain waiver language that explicitly references the Law.

Finally, the Law does not mandate, and the FAQs do not address, employer-provided notice of employees’ rights under the Law. Employers may choose to provide such notice if they wish.

We will update this blog post should the State issue any further guidance on the Law.