New Jersey has joined the growing ranks of jurisdictions that have enacted pay transparency laws. Senate Bill 2310 (“the Law”) was enacted on November 10, 2024, and approved on November 18, 2024 as Public Law 2024, chapter 91. The Law will take effect on June 1, 2025, i.e., “the first day of the seventh month next following the date of enactment,” and will require most New Jersey employers to disclose a wage or salary range and a general description of benefits and other compensation programs in their job postings and advertisements. The Law also will require covered employers to make “reasonable efforts to announce, post, or otherwise make known opportunities for promotion” to current employees, a feature that is not common in similar laws enacted by other jurisdictions.
Covered Employers
The Law applies to any employer that has 10 or more employees over 20 calendar weeks and does business, employs persons, or takes applications for employment within the state.
Note that employers in Jersey City with five or more employees within Jersey City are already required to comply with that city’s ordinance mandating the disclosure of salary information in postings. This ordinance remains in effect, which means that Jersey City employers with five to nine employees that will be exempt from the state’s law must still comply with the city’s law.
California continues to be the birthplace of ideas that complicate employment laws. True to form, it is the first state to adopt the concept of intersectionality in its anti-discrimination statutes.
On September 27, 2024, Governor Newsom signed Senate Bill 1137 (SB 1137) into law. This legislation amends several provisions of existing California law to clarify that unlawful discriminatory practices may include “any combination” of protected characteristics or traits – not just a single one.
Of particular importance to companies: SB 1137 thus modifies the Unruh Civil Rights Act, which prohibits discrimination by business establishments, and California’s Fair Employment and Housing Act (FEHA), which prohibits harassment and discrimination in employment. The updates to these laws will take effect on January 1, 2025.
Lam v. University of Hawaii
While SB 1137 is the first statutory law of its kind, the concept of intersectional discrimination is not new. Thirty years ago, the United States Court of Appeals for the Ninth Circuit addressed this challenge. In Lam v. University of Hawaii, a woman of Vietnamese descent filed a lawsuit against the University of Hawaii Richardson School of Law, alleging that the law school violated Title VII of the Civil Rights Act of 1964 by discriminating against her on the bases of her race, sex, and national origin. Lam had applied but was twice rejected from the law school’s Pacific Asian Legal Studies Program.
Election Day is Tuesday, November 5. During this election season, employers may question whether the law requires them to allow employees time off to vote, often referred to as “voting leave”, and if so, whether such leave is paid. Perhaps just as urgently, employers may need to manage workplace political talk and potential consequences.
The short answer about voting leave is the same lawyers often give: it depends! Most states and many local jurisdictions have their own laws addressing voting leave and related rights. This article is not a comprehensive, state-by-state guide, and employers should check applicable laws in their jurisdictions when in doubt. Instead, this overview is a reminder of potential issues and best practices to ensure a safe and legally sound workplace in the days before and after Election Day.
Voting Leave
State and local laws on voting leave impose varying obligations on employers. Employers should review the applicable state laws and regulations of every jurisdiction in which they have employees. To highlight a few:
- California: if an employee doesn’t have sufficient time outside of working hours to vote, the employee may take off enough working time that, when added to the voting time available outside of working hours, will enable the employee to vote. Up to two hours of working time off must be without loss of pay. The time off can be at the start or end of the working shift. If the employee knows in advance that time off will be necessary to vote, the employee must give the employer at least two working days’ notice. Note that the law requires employers to post a notice to employees advising them of their rights regarding voting leave.
Retail employers in New York State will have to face new requirements beginning on March 4, 2025, as a result of the recent enactment of the State’s Retail Worker Safety Act (“Act”). The Act will impose the State’s latest employment obligations on retail employers, mandating violence prevention training and precautionary workplace measures. Set to become effective about a year after California enacted similar legislation related to employee harassment and violence prevention in 2024, this is yet another state law that aims to ensure safer working environments for retail workers. As many retailers’ busiest season of the year approaches, they will also need to take time to prepare for compliance with the Act’s requirements.
As featured in #WorkforceWednesday®: This week, we’re examining the final mental health parity rules, a National Labor Relations Board (NLRB) memo on restrictive covenant limitations, and New York State’s recently enacted workplace violence prevention law.
We previously reported that the New Jersey Department of Labor and Workforce Development (“NJDOL”) issued proposed regulations to implement New Jersey’s Temporary Workers’ Bill of Rights (the “Act”), including its pay equity requirement. On September 16, 2024, the NJDOL adopted N.J.A.C. 12:72 (the “Regulations”) implementing sections 1 through 7, and 10 of the Act, pertaining to “workplace protections, as well as temporary help service firm and third-party client responsibilities.” The key provisions are summarized below.
Pay Equity Requirement
Significantly, the Regulations provide a formula for calculating the minimum hourly rate of pay for temporary workers, which under the Act is determined by “the average rate of pay and average cost of benefits” of comparator employees, i.e., employees of the third-party client who perform:
the same or substantially similar work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions for the third-party client at the time the temporary laborer is assigned to work at the third-party client.
In a win for businesses, the Massachusetts Supreme Judicial Court (“SJC”) has ruled that individuals in true franchisor-franchisee relationships are independent contractors. In Patel v. 7-Eleven, Inc., the SJC found that defendant franchisor 7-Eleven, Inc. (“7-Eleven”) did not misclassify certain franchisees in violation of the Commonwealth’s independent contractor statute, M.G.L. c. 149, § 148B, which presumptively considers an individual “performing any service” for a putative employer to be an employee of said putative employer, rather than an independent contractor, unless: (1) the individual is free from control and direction in connection with the performance of the service; (2) the service is performed outside the usual course of the business of the employer; and (3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature at that involved in the service performed.
In a long saga to determine whether 7-Eleven properly classified certain franchisees as independent contractors, the United States Court of Appeals for the First Circuit (“First Circuit”) certified two questions to the SJC. On the first question back in 2022, the SJC ruled that where a franchisee is an “individual performing any service” for a franchisor, the independent contractor statute applies to the relationship between the franchisor and the franchisee. The decision here involved a second question that the First Circuit certified to the SJC related to the threshold determination of the independent contractor statute:
Do the plaintiffs perform any service for 7-Eleven within the meaning of the independent contractor statute, where, as here, they perform various contractual obligations under the Franchise Agreement and 7-Eleven receives a percentage of the franchise’s gross profits?
We previously wrote about a Michigan Supreme Court decision to reinstate two voter initiatives – the Wage Act and the Earned Sick Time Act (ESTA) – and state agency responses to that decision (the “Original Order”), which included the filing of a motion asking the court to clarify the Original Order. On September 18, 2024, the Michigan Supreme Court responded, granting the request for immediate consideration and issuing a thirteen-page Order (the “Clarification Order”).
New Details on Coming Adjustments to Michigan Wage Rates
Tip Credit Phase Out
The substantive portion of the Clarification Order re-writes a lengthy and important footnote in the Original Order, including an extension of the gradual phase-out of the tip credit and a clearer definition of the annually increasing percentage amount. Instead of merely saying “The tip credit will be [XX]% of minimum wage,” the Clarification Order provides that “tipped workers’ minimum hourly wage rate must be at least [XX]% of the general minimum wage rate, and the tip credit can be used to satisfy the balance owed to such workers.”
In other words, the Clarification Order spells out that, for example, “80%” means that tipped workers must be paid a base rate that is at least 80% of the general minimum hourly wage rate.
A growing number of states and municipalities have passed “fair chance” laws that, to varying degrees, prohibit employers from inquiring into a job applicant’s criminal background during the hiring process or restrict employers from using certain criminal conviction information in connection with their hiring decisions. Recently, Los Angeles County joined this group and New York City is posed to again amend the rules for its existing law. The Los Angeles developments create new intricacies for employers, while the New York actions may be best understood as clarification of existing law. In either case, keeping up with the changes is important for employers who are hiring in those locations.
Los Angeles County’s New Law
The Los Angeles County Fair Chance Ordinance for Employers (“FCO”) was adopted by the Los Angeles County Board of Supervisors on February 7, 2024, and becomes operative on September 3, 2024. The FCO was designed to complement California’s “Ban-the Box” law, called the Fair Chance Act (“FCA”), and introduces additional compliance requirements for covered employers, including, but not limited to, mandatory language for job postings and solicitations, and written notice requirements in connection with the extension of a conditional offer of employment.
On August 22, 2024, the Michigan Department of Labor & Economic Opportunity (LEO) issued a press release on the heels of the Mothering Justice decision, about which we previously wrote, and which will drastically change the minimum wage, tip credit, and paid sick leave obligations for Michigan employers.
With respect to paid sick leave, LEO announced that it issued new guidance and FAQs on the Earned Sick Time Act, which goes into effect on February 21, 2025. We will be publishing an Insight shortly detailing all the mandatory changes.
With respect to the minimum wage and tip credit changes, on August 21, the state of Michigan’s Attorney General, LEO, and the Department of Treasury asked the Michigan Supreme Court for clarification on how the Treasurer should calculate adjustments for inflation to set new minimum wage rates, as directed by the July 31 decision. The motion outlines a proposed schedule of new minimum wages based on one interpretation of the Supreme Court’s order, but suggests that ambiguity in the order leaves room for interpretation and therefore lays out five options:
The U.S. Departments of Labor (DOL), Health and Human Services, and the Treasury (collectively, the “Tri-Departments”) published a Notice of Proposed Rulemaking (NPRM) on August 3, 2023, to propose new regulations for the Mental Health Parity and Addiction Equity Act (MHPAEA). In particular, the proposed rules would implement amendments to MHPAEA that were passed under the Consolidated Appropriations Act of 2021 (CAA) to require documentation of comparative analyses for Non-Quantitative Treatment Limits (NQTLs). We anticipate that the Tri-Departments will publish new regulations for MHPAEA that will finalize most provisions of the NPRM in the coming days or weeks.
We anticipate that most provisions of the new regulations will finalize the proposed requirements without significant modifications. However, robust public comments were submitted with regard to several key provisions that may cause the Tri-Departments to modify or rescind the proposed rules.
Three of the most controversial provisions from the proposed rules to watch for in the final rules are:
-
Quantitative testing for Non-Quantitative Treatment Limits
- Current guidance: Health plans must ensure that financial requirements (such as copays and coinsurance) and quantitative treatment limits (such as day or visit limits) that apply to benefits for the treatment of mental health and substance use disorders (MH/SUDs) are no more stringent than the predominant level of the financial requirement or treatment limit that applies to substantially all medical and surgical benefits. This is a mathematical test that has been well-established for these numerical limits since the first MHPAEA regulations were published in 2011.
- Potential Change: The 2023 NPRM also proposed to apply this mathematical test to NQTLs. If finalized, this new requirement may effectively prohibit most applications of prior authorization, step therapy, and other forms of utilization management for outpatient and prescription drug benefits for MH/SUD conditions.
Recently, in Lewis v. Crochet et al., the United States Court of Appeals for the Fifth Circuit rejected an attempt by a plaintiff to use the crime-fraud exception to the attorney-client privilege to compel two lawyers’ production of attorney-client privileged documents and information, which they obtained during the course of an investigation they conducted for Louisiana State University in 2013.
Lewis arose out of a lawsuit filed by the plaintiff, an African American woman formerly employed as an assistant athletic director for LSU, claiming that LSU and individual LSU board members discriminated and retaliated against her after she experienced and witnessed numerous instances of racist and sexist misconduct from LSU’s then-head football coach. The privilege dispute came to a head when plaintiff sought to compel LSU’s production of information from the 2013 Title IX investigation into sexual harassment allegations by LSU students against the then-head coach. Those documents remained in the possession of the law firm that conducted the investigation. Attempting to overcome LSU’s assertion of the attorney-client privilege, plaintiff invoked the crime-fraud exception arguing that LSU sought to use its lawyers to fraudulently conceal the documents in violation of Louisiana law prohibiting, among other things, the concealment of public records. The trial court agreed and ordered disclosure, but on an appeal filed by the two lawyers that conducted the 2013 investigation, the Fifth Circuit reversed.
New York City employers, time is running out to update your bulletin boards. Local Law No. 161, which took effect January 2, 2024, requires New York City employers to display and distribute to each employee a multilingual “Know Your Rights at Work” poster (the “Poster”) by no later than July 1, 2024. The Poster’s main feature – a QR code – directs employees to the Workers’ Bill of Rights website created by the New York City Department of Consumer and Worker Protection (DCWP) to summarize protections available under federal, state, and local laws.
Specifically, Local Law No. 161 requires New York City employers to:
On May 14, 2024, New Jersey Attorney General Matthew J. Platkin and the New Jersey Division on Civil Rights (“DCR”) released Guidance on Discrimination and Out-of-State Remote Workers (“the Guidance”), explaining the New Jersey Law Against Discrimination’s (NJLAD) application to remote employees. Noting the rise of telework following the COVID-19 pandemic, the Guidance states that the NJLAD is not limited to protecting only New Jersey-based employees but takes the position that it protects aggrieved employees of New Jersey employers “regardless of their ...
In 2019, in response to the “#MeToo” movement, the New Jersey Legislature enacted a law that made any “non-disclosure provision” in an employment contract or settlement agreement unenforceable against the employee, if the provision had “the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment.” N.J.S.A. § 10:5-12.8(a) (the “Law”). The Law left unanswered whether it applied to “non-disparagement” provisions that are common in agreements settling employment disputes.
On May 7, 2024, the New Jersey ...
New York City’s salary transparency law, which officially took effect in November 2022, requires “an employment agency, employer, or employee or agent thereof” to include a “good faith” salary or hourly wage range for every job, promotion, or transfer opportunity advertised for positions within New York City or involving work to be performed within its jurisdiction. Employers beware: New York City is now actively enforcing this salary transparency law through enforcement actions.
Between October and December 2023, the New York City Commission on Human Rights ...
The California Division of Occupational Safety and Health (Cal/OSHA) has issued its anticipated model Workplace Violence Prevention Plan (for non-health care settings). As we previously noted here, SB 553 added California Labor Code Section 6401.9, which requires virtually all California employers to have a written Workplace Violence Prevention Plan (WVPP) in place by July 1, 2024, either as a stand-alone section in their Injury and Illness Prevention Program (IIPP) or as a separate document.
Among other things, Cal/OSHA’s model WVPP provides some concrete examples of ...
This springtime, Washington, D.C. employers may want to spruce up their compliance checklists to stay ahead of new pay transparency obligations. On January 12, 2024, Mayor Bowser signed the Wage Transparency Omnibus Amendment Act of 2023 (the “Act”), which modifies the Wage Transparency Act of 2014. The Act imposes new pay disclosure requirements for job postings, prohibits employer inquiries into an applicant’s wage history, and directs employers to post a new notice in their workplaces. Like most legislation in D.C., the Act was subject to review for a period of 30 ...
Almost a decade ago, in September 2014, California was the first state in the nation to enact legislation prohibiting non-disparagement clauses that aimed to prevent consumers from writing negative reviews of a business. Popularly referred to as the “Yelp Bill,” AB 2365 was codified at California Civil Code Section 1670.8, which prohibits businesses from threatening or otherwise requiring consumers, in a contract or proposed contract for sale or lease of consumer goods, to waive their right to make any statement—positive or negative—regarding the business or ...
With the potential “tendency of many to ‘overshare,’ documenting everything from their breakfast to their favorite Marvel™ villain” on social media, as recognized in at least one court opinion[1], perhaps unsurprisingly, some employers might consider social media to be a valuable source for insight about applicants or employees. Assembly Bill A836/Senate Bill S2518A (the “Personal Accounts Law”), signed into law by Governor Kathy Hochul on September 14, 2023, however, will soon place new limits on New York employers that seek access to an employee’s or ...
On November 17, 2023, New York Governor Kathy Hochul signed Senate Bill 3255 (the “Act”) into law. The Act amends Section 297-5 of the New York Executive Law (“Section 297-5”) by extending the statute of limitations for filing unlawful discrimination complaints with the New York State Division of Human Rights (the “Division”) from one to three years. According to the Act’s Sponsor Memo, the Legislature recognized that the prior time frame for victims of unlawful discriminatory practices to file administrative complaints with the Division was insufficient ...
As we reported in the first installment of our series on pay transparency, pay equity legislation continues to trend nationwide. While Part I focused on salary range disclosure legislation, in Part II, we highlight mandatory pay data reporting requirements that are being considered in Massachusetts.
What is Mandatory Pay Data Reporting?
Pay data reporting laws require covered employers to submit detailed compensation data reports, often broken down by race and gender, to state-designated agencies. To date, California and Illinois have adopted such laws. Under California law ...
On November 7, 2023, the United States Court of Appeals for the First Circuit affirmed the United States District Court for the District of Massachusetts’ dismissal of a teacher’s suit against her former employer, Austin Preparatory School (“Austin Prep”), in which she claimed the school fired her for requesting extended leave as an accommodation following multiple surgeries. In Der Sarkisian v. Austin Preparatory School, the First Circuit held that Nancy Der Sarkisian’s request for extended leave, with no end date, was unreasonable considering the circumstances ...
With the holidays right around the corner, and local governments grinding to a halt during the holiday season, the City of Evanston, Illinois recently announced that it will postpone enforcement of its Fair Workweek Ordinance (the “Ordinance”) from September 1, 2023 until January 1, 2024. Although directly affecting just a relatively small number of employers that have a presence in Chicago’s neighboring municipality, the Ordinance is complex and notable for a novel hazard pay mandate.
The Ordinance Untangled
In May of 2023, Evanston’s City Council approved ...
As we previously reported, this summer, the U.S. Citizenship and Immigration Services (USCIS) and U.S. Department of Homeland Security (DHS) announced significant updates to enhance the employment verification process. In addition to an alternative procedure for qualified E-Verify employers to virtually inspect employee documents, the USCIS and DHS released a new Form I-9. Employers have been able to voluntarily use the new Form I-9 since August 1, 2023, but as of November 1, 2023, such use is now mandatory. Failure to use the correct edition of the Form I-9 at the time of hire is a ...
On October 26, 2023, the National Labor Relations Board (NLRB or “Board”) issued its Final Rule (the “Rule”) on Joint-Employer status under the National Labor Relations Act (NLRA). Slated to take effect on December 26, 2023, the Rule returns to and expands on the Obama era Browning-Ferris test, scrapping the NLRB’s 2020 Joint Employer test and setting up a potential showdown with the Supreme Court over the “major questions” doctrine and the scope of the NLRB’s administrative authority.
The Final Rule Summarized
Under the new Rule, any entity that shares or ...
Important changes are coming to the Massachusetts Paid Family and Medical Leave law (PFML), which requires covered employers to provide eligible employees with paid time off for certain qualifying absences. First, the Massachusetts legislature recently adopted PFML amendments (HB 4053), which, effective November 1, 2023, permit employees to supplement their weekly PFML benefits with accrued paid leave, including vacation, sick time, and other paid time off (PTO). Second, the Massachusetts Department of Paid Family and Medical Leave (DFML) has released the new contribution ...
On October 7, 2023, California Governor Gavin Newsom vetoed Senate Bill 403 (“SB-403”), legislation that would have been the first state-wide ban on caste discrimination in the United States. We previously reported on SB-403 here.
Governor Newsom released a veto message calling SB-403 “unnecessary.” The message further explained his rationale that “discrimination based on caste is already prohibited” under California law, which “already prohibits discrimination based on sex, race, color, religion, ancestry, national origin, disability, gender identity ...
The start of autumn means cooler weather, falling leaves, and, for employers with New York employees, updates to the New York Paid Family Leave (“Paid Family Leave”) program.
The Paid Family Leave program provides eligible employees with up to 12 weeks of job-protected, partially-paid time off within a 52-week period to care for a family member with a serious health condition, bond with a newborn, or assist when a family member is deployed abroad on active military service. Since Paid Family Leave took effect in 2018, New York employers have seen several changes to the program ...
As employers throughout New York State are now determining how to comply with the newest State-wide pay transparency law, which took effect on September 17, 2023, the New York State Department of Labor (DOL) released proposed regulations to facilitate the legislative goal of increasing pay transparency. As discussed in depth here and here, the law requires employers to disclose the pay range and job description (if existing) in job postings. Should these proposed regulations pass the 60-day comment period unchanged, there are several highlights worth ...
Section 603 of the SECURE 2.0 Act of 2022 (“Section 603”) implements changes to catch-up contributions and is applicable to employers who maintain a 401(k), 403(b), or 457(b) plan with participants who are age 50 and older and whose income from the prior year exceeded $145,000. Section 603 requires that catch-up contributions must be made as Roth contributions (i.e., after tax basis) for those earning more than $145,000. Originally, Section 603 was set to become effective starting in 2024. However, on August 25th, 2023, in response to many industry groups urging for an ...
As a result of a recent Fifth Circuit decision, some employers in Texas will now face a tougher hurdle when defending against Title VII disparate treatment discrimination claims in federal court. The United States Court of Appeals for the Fifth Circuit recently held that in order to establish an actionable claim for disparate treatment discrimination under Title VII, plaintiffs need not plead an “ultimate employment decision” related to hiring, granting leave, terminations, promotions, or pay. In a significant departure from decades-old precedent, the Fifth Circuit held ...
When the pandemic abruptly shifted many employment relationships from offices and other physical workplaces to remote environments, many governmental and regulatory authorities responded by modifying existing protocols to accommodate new realities. Among those were temporary adaptations to long-standing federal requirements for inspecting identification and verifying employment eligibility, whereby employers were permitted to forego standard document inspection procedures while completing Form I-9.
As we previously reported, on May 8, 2023, the New Jersey Department of Labor and Workforce Development (“NJDOL”) published a web page providing guidance in the form of Frequently Asked Questions (the “FAQs”) to assist employers in complying with the provisions of the Temporary Workers’ Bill of Rights (the “Law”). Recently the NJDOL released proposed regulations to implement the Law (the “Proposed Regulations”) that elaborate on many of the Law’s provisions, including its pay equity requirement. Public comment on the Proposed Regulations will be accepted until October 20, 2023.
In addition to the Proposed Regulations, the NJDOL has also updated its FAQs.
With amendments to the Colorado Equal Pay for Equal Work Act (the “Act”) set to take effect on January 1, 2024 (the “2024 Amendments”), the Colorado Department of Labor and Employment (“CDLE”) has started the process of updating its compliance guidance for employers. The first update comes in the form of a revised Interpretative Notice & Formal Opinion ("INFO") #9, which the CDLE published on July 28, 2023.
On June 30, 2023, the Supreme Court of the United States declined to weigh in on whether gender dysphoria can qualify as a disability under the Americans with Disabilities Act (“ADA”), allowing to stand the Fourth Circuit’s decision in Williams v. Kincaid, which extended ADA protection to transgender people experiencing gender dysphoria.
As the first federal appellate decision of its kind, Williams had — and will continue to have — a significant impact on employers (covered by Title I of the ADA), and places of public accommodations (covered by Title III of the ADA).
As we previously reported, on July 5, 2023, the New York City Department of Consumer and Worker Protection (DCWP) began enforcing Local Law 144 of 2021 (the “Law”) regulating the use of automated employment decision tools (AEDT). In preparation for the July 5 enforcement date, last week, the DCWP published Frequently Asked Questions (FAQ) concerning the use of AEDTs on its fact page for the Law. The FAQ contain an overview of the Law and general information and guidance regarding bias audit requirements, data requirements, independent auditors, responsibility for bias audits, notice requirements, and complaints.
As explained in the FAQ, the Law applies to employers and employment agencies that use AEDT:
The Supreme Court delivered its highly anticipated consolidated decision yesterday in the two affirmative action cases on its docket, Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (collectively, the “SFFA” cases). At issue in the SFFA cases is whether Harvard and the University of North Carolina (“UNC”) violate the Equal Protection Clause of the Fourteenth Amendment (and, in turn, Title VI of the Civil Rights Act of 1964) in their consideration of race in their admissions processes. In answering this question in the affirmative, the Court’s majority opinion significantly restricts – and, some would argue, eliminates – affirmative action programs in higher education.
On June 29, 2023, the Supreme Court of the United States issued three opinions. Of them, Groff v. DeJoy ("Groff”),in which the Court unanimously revised the standard for determining whether accommodating an employee’s religious beliefs would constitute an “undue hardship” under Title VII of the Civil Rights Act of 1964 (“Title VII”), will have the most immediate impact on employers. In Groff, the Court held that employers cannot deny a religious accommodation by demonstrating that it would result in only more than a de minimis cost, but rather must demonstrate that it would result in a substantial cost.
Governor Jared Polis recently signed into law legislation (SB 23-105 or the “Amendments”) that will soon change Colorado employers’ disclosure and notice requirements under the state’s Equal Pay for Equal Work Act (“Act”).
As we previously reported, in addition to prohibiting sex-based wage discrimination, the Act requires all employers, regardless of where they are located, with at least one Colorado-based employee to (1) notify their Colorado-based employees of internal opportunities for promotion and (2) disclose salary and benefits information in job postings for all positions that are or can be performed in Colorado. The Amendments modify the Act by:
On May 17, 2023, Michigan Governor Gretchen Whitmer signed SB 147 into law, amending the Elliot-Larsen Civil Rights Act (“ELCRA”) to expand its protections from workplace discrimination to those who have abortions. The law is expected take effect on March 31, 2024, ninety-one days after final adjournment of the Michigan Legislature’s 2023 Regular Session and will apply to any Michigan employer with one or more employees. This is the second time this year that the Michigan Legislature has amended ELCRA, joining SB 4 in early March 2023, which amended ELCRA to add protections for individuals based on their sexual orientation, and gender identity or expression.
It’s time for covered employers to update their Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) posters.
The U.S. Department of Labor (DOL) has issued an updated FLSA Minimum Wage Poster to reflect covered employers’ new lactation accommodation obligations under the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act.
*UPDATE: Mayor Adams signed Int. 0209-2022 into law on May 26, 2023. It will take effect on November 22, 2023.
Mayor Eric Adams finds on his desk this week a New York City Council bill that would provide New York City based employees, visitors, and residents protection from discrimination based on their height or weight. The proposed local law would amend Section 8-101 of the Administrative Code of the City of New York, also known as the NYC Human Rights Law (NYCHRL).
On May 11, 2023, an overwhelming majority of the New York City Council (44 out of 51 members) voted to amend the Administrative Code to add two more characteristics, height and weight, to this list. The bill will take effect 180 days after Mayor Adams signs it into law. If he does so, New York City will join a small cohort of places (including Michigan, Washington State and Washington, D.C., to name a few) that have legislated on this issue.
Some of the most notable recent mass shootings in the United States have been perpetrated by current or former employees in their workplaces. For example, on April 10, 2023, an employee of a bank in Louisville, Kentucky, who had been notified that he was going to be terminated, shot and killed five bank employees and wounded many others who were attending a morning staff meeting. In 2021, a Santa Clara Valley Transportation Authority employee shot and killed nine of his fellow employees in a San Jose, California railyard. In its publication, “Active Shooter Incidents in the United States in 2022”, the FBI reported that of the 50 active shooter incidents in the United States in 2022, 14 of them, comprising 28 percent of the total, occurred in “commerce” settings.
Columbus has joined Toledo, Cincinnati, and a number of states and locales around the country, in banning employers from asking job applicants about their salary history.
Effective March 1, 2024, covered employers in Ohio’s capital will be prohibited from:
- inquiring about an applicant’s salary history,
- screening applicants based on their salary history,
- relying solely on salary history when deciding whether to offer an applicant employment or determining their compensation, and
- retaliating against applicants for not disclosing their salary history.
Salary History
Currently, neither the federal Fair Labor Standards Act (FLSA) nor the Equal Pay Act (EPA) prohibit employers from screening applicants based on prior salary, requesting an applicant’s salary history, or conditioning an applicant’s employment on providing their salary history. However, salary history bans, which are intended to eliminate the perpetuation of discriminatory pay disparities, have become increasingly common both at the state and local level. As of April 2023, more than 40 states and localities have adopted some form a salary history ban.
Amendments to the pending New York State law requiring employers to advertise salary ranges were signed into law by Governor Kathy Hochul on March 3, 2023. The salary transparency law with the amendments (which we previously summarized here) will become effective on September 17, 2023.
On February 21, 2023, the Seattle City Council passed a first of its kind ordinance that amends Seattle’s existing anti-discrimination laws to prohibit caste discrimination. The ordinance, CB 120511, prohibits employers from discriminating against individuals based on caste with respect to “hiring, tenure, promotion, terms, conditions, wages or privileges of employment, or with respect to any matter related to employment.” The amendment also bans discrimination based on caste with respect to public accommodations. Seattle employers should take note of the new amendment and update their policies to include caste as a protected category.
On February 13, 2023, the New York State Legislature approved an amendment, S1326 (the “Amendment”), to the upcoming New York State Pay Transparency Law S9427A (the “Law”), clarifying that the Law’s requirement that employers to disclose a minimum and maximum salary range in advertisements and postings for job opportunities applies, with limited exception, to remote positions. In addition, the Amendment would also eliminate one of the Law’s recordkeeping obligations and define the term “advertisement.” If signed by the Governor, as is expected, the Amendment will be part of the Law when it takes effect this Fall.
On February 2, 2023, the Illinois Supreme Court filed an opinion in Jorome Tims v. Black Horse Carriers, Inc., holding that Illinois’ Biometric Information Privacy Act (BIPA) is subject to a single, five-year statute of limitations period.
On January 26, 2023, a Michigan appellate court panel in Mothering Justice v. Attorney General issued a ruling to halt changes to the State’s paid sick leave law and an increase to the State’s minimum wage for hourly workers that were set to go into effect on February 19, 2023. The ruling is the latest development in a saga that has been ongoing for more than four years.
On January 1, 2023, Washington joined the growing list of states requiring pay transparency in job postings. Amendments (the “Amendments”) to the Washington State Equal Pay and Opportunities Act (the “EPOA”) require covered employers to disclose pay range, benefits, and other compensation in job postings. The Washington Department of Labor and Industries issued an administrative policy (the “Guidance”) to provide guidance regarding the broadened disclosure requirements.
California is one of a growing list of states requiring employers to make certain pay transparency disclosures to employees and applicants. California employers already had an obligation to provide pay scales to job applicants upon request; however, as we previously reported, under SB 1162, employers must now disclose pay scales to current employees upon request, and employers with 15 or more employees must include pay scales in job postings.
Now that the New Year is underway, employers should ensure that required messaging about employee/workers’ rights is up to date and conforms with federal, state, and local law.
In the wake of the landmark decision in Dobbs v. Jackson Women's Health Organization, we have been closely monitoring legal developments across the country. In addition to well publicized “trigger laws” that were effectuated as a result of the U.S. Supreme Court’s order, states have taken up a variety of legislative actions in response to the ruling, which placed authority for the regulation of abortion with the states.
It is time to update your workplace signage. On October 19, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) issued a new workers’ rights poster, which it quickly revised and re-issued on October 20, 2022. The new “Know Your Rights” poster replaces the EEOC’s “Equal Employment Opportunity is the Law” poster, which had been in place for more than a decade, and it features several substantive changes.
Employers with employees in the District of Columbia have until Monday, October 31, 2022, to comply with a specific notice provision contained in the D.C. Non-Compete Clarification Amendment Act of 2022 (B24-0256) (the “Amendment”).
For more than two and a half years, employers across the country have navigated a nuanced web of legal requirements and guidance to safely operate during the global COVID-19 pandemic. Recent updates to the legal landscape at the federal, state, and local level, however, have left many employers asking: is the COVID-19 pandemic finally over? For now, the answer remains “no.” This post discusses three key reasons why employers should continue to operate with the pandemic in mind.
On Tuesday October 4, 2022, the White House Office of Science and Technology Policy (“OSTP”) released a document entitled “Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People” (the “Blueprint”) together with a companion document “From Principles to Practice: A Technical Companion to the Blueprint for an AI Bill of Rights” (the “Technical Companion”).
On Friday, September 23, 2022, the New York City Department of Consumer and Worker Protection (“DCWP”) released a Notice of Public Hearing and Opportunity to Comment on Proposed Rules related to its Automated Employment Decision Tool law (the “AEDT Law”), which goes into effect on January 1, 2023. As we previously wrote, the City passed the AEDT Law to regulate employers’ use of automated employment decision tools, with the aim of curbing bias in hiring and promotions; as written, however, it contains many ambiguities, which has left covered employers with open questions about compliance.
On September 20, 2022, Mayor Eric Adams announced that New York City’s COVID-19 vaccine mandate for private employers is ending. The City’s mandate for municipal employees, however, will remain in effect.
With the final quarter of 2022 approaching, New York employers should be aware of the changes to the New York Paid Family Leave (“Paid Family Leave”) program set to take effect in 2023. Employers can expect an increase on the weekly benefits cap, as well as a decrease in the employee contribution rate.
Beginning in 2018 and increasing in benefits over the past few years, the Paid Family Leave program provides eligible employees with up to 12 weeks of job-protected, partially-paid time off to bond with a new child, care for a family member with a serious health condition, or to provide assistance when a family member is deployed abroad on active military service. As we previously reported, New York expanded the program’s definition of “family member” to include “siblings,” which will take effect on January 1, 2023. “Sibling” includes biological or adopted siblings, half-siblings, and step-siblings.
The California legislature has presented S.B. 1162 (“the Bill”) to Governor Gavin Newsom. If the Governor signs the Bill into law, California will follow the lead of jurisdictions like Colorado and New York City by requiring many employers to include pay scales in job postings. The Bill would also impose pay equity reporting requirements, not just on large employers obligated to do so under federal law, but on any private employer with 100 or more employees, including those whose “employees” are hired through labor contractors. Those reports will also have to include breakdowns of aggregate data not previously collected.
On August 16, 2022, in Williams v. Kincaid, the Fourth Circuit held that gender dysphoria can qualify as a disability under the Americans with Disabilities Act (the “ADA”). This is the first federal appellate decision which extends the ADA’s protections to transgender people experiencing gender dysphoria and it will have a significant impact on all entities covered by the ADA, including employers (covered by Title I of the ADA), and public accommodations (covered by Title III of the ADA). Prior to this holding, several of the district courts have come down both ways on the issue.
After two and a half years of promoting protocols aimed at reducing transmission of coronavirus, on August 11, 2022, the CDC eliminated its recommendation that people quarantine after exposure to COVID-19 and updated other recommendations. In recognition of how vaccination, boosters, and improved treatments have the reduced risk of severe illness, hospitalization, and death, the CDC has “streamlined” its guidance regarding what actions people should take to protect themselves and others if they are exposed to COVID-19, become sick, or test positive for the virus. The CDC now recommends that instead of needing to quarantine, someone who has been exposed to COVID-19 only needs to wear a high-quality mask for 10 days. During the 10-day masking period, individuals (regardless of vaccination status) should monitor their symptoms and get tested after five days, regardless of symptoms.
Back in March 2021, when it wasn’t easy for many people to get an appointment for an inoculation against COVID-19, New York State created an incentive for employees to get vaccinated. A new provision was added to the Labor Law, requiring employers to provide paid leave time to employees to obtain each dose. As we previously noted, this statute was intended to sunset on December 31, 2022. However, as this year’s busy legislative session wound down, a bill extending the provision was delivered to Governor Kathy Hochul, who signed off on a 12-month extension of the law’s effective date, through December 31, 2023. Thus, New York employers will be required to provide their employees up to four hours of paid time off for each COVID-19 shot through (at least) the end of next year.
On June 7, 2022, the District of Columbia Council approved the Fiscal Year 2023 Budget Support Act of 2022 (“Act”), which includes an increase to the number of weeks of paid leave available to eligible employees through the Universal Paid Leave Act (“UPLA”) (also known as “Paid Family Leave,” or “PFL”). Generally, as we previously explained, PFL-eligible employees are those who spend at least 50 percent of their work time – whether full time or part time – in D.C.
On June 15, 2022, the U.S. Court of Appeals for the Fifth Circuit held that COVID-19 does not qualify as a “natural disaster” under the federal Workers’ Adjustment and Retraining Notification (“WARN”) Act, effectively foreclosing one important argument used by employers in defense of COVID-19-related WARN lawsuits. As this is the only appellate court to affirmatively interpret WARN’s “natural disaster” exception, barring a split by other circuits, this case sets an important precedent in ongoing COVID-19-related WARN litigation, as well as WARN suits related to future pandemics.
Over the past several years, workplace artificial intelligence (“AI”) tools have matured from novel to mainstream. Whether facilitating attracting, screening, hiring, and onboarding job applicants or charting the career path or promotability of current employees, workplace AI tools will likely become more prevalent. Legislators and administrative agencies have taken note and are in various stages of examining and regulating these tools, with the primary goal of ensuring that they do not violate federal and state laws prohibiting workplace discrimination.
On Thursday, May 12, 2022, New York City Mayor Adams signed the bill (previously described here) amending New York City’s new law that requires employers to list wage or salary ranges on job advertisements. Most significantly, among other changes, the amendment pushes the effective date of the law from May 15, 2022, to November 1, 2022.
Where is the impact of alleged employment discrimination? That is the question when evaluating whether a remote worker can assert claims under the New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”), according to a recent decision by U.S. District Judge Edgardo Ramos. Relying on state law, Judge Ramos concluded that the basis for subject matter jurisdiction has not changed during the COVID-19 pandemic and remains grounded in New York’s “Impact Test,” meaning courts will look to where the impact of alleged discriminatory conduct was felt. Thus, regardless of whether an employer is located in New York, the anti-discrimination laws are intended to protect employees who live or work in New York.
A California Superior Court judge has invalidated state legislation that required boards of publicly held corporations headquartered in California to include a minimum number of directors from underrepresented communities. The court’s decision effectively strikes down Assembly Bill No. 979 (“AB 979”), a law enacted with the goal of increasing diversity on boards of directors, paving the way for a parallel outcome to a similar challenge of a statutory mandate for increased gender diversity on boards of directors.
Promotion of “Underrepresented Communities” Struck Down
Due to a surplus in the Universal Paid Leave Fund (the “Fund”), D.C. employees who are covered by the District’s Paid Family Leave (PFL”) program will soon be eligible for the maximum amount of paid family leave benefits permitted under the law.
As discussed in our previous Insight, starting in 2022, under the Universal Paid Leave Emergency Amendment Act of 2021 (“PLEAA”), the District’s Chief Financial Officer (“CFO”) may modify the maximum duration of leave available under the PFL program annually depending upon the projected balance of the Universal Paid Leave Fund. On March 1, 2022, the Acting CFO certified that the Fund has enough money to increase the potential maximum duration of qualifying paid leave available to D.C. employees as follows:
On March 29, 2022, the U.S. House of Representatives passed H.R. 2954, entitled “Securing a Strong Retirement Act” (“Secure 2.0”), which would, among other things, impose additional requirements on employers that sponsor 401(k) and 403(b) plans. Secure 2.0 has not yet been passed by the Senate, and is likely to undergo changes, if passed by the Senate. Nevertheless, the following overview of some of the provisions included in the House version of Secure 2.0 provides a preview of the types of changes that retirement plans sponsors may be required (or permitted) to implement, as early as this year or in 2023:
On March 28, 2022, the New York City Commission on Human Rights released official guidance (Guidance) regarding the upcoming pay transparency law, Int. 1208-B (Law), which requires all advertisements for jobs, promotions, and transfer opportunities for positions performed in the City to include a minimum and maximum salary range. As we previously reported, the City Council passed the Law on December 15, 2021, and it currently is expected to take effect on May 15, 2022.
In addition, amendments to the Law have recently been introduced in the New York City Council (T2022-5021 (Bill)) which, if passed, will modify the Law in important ways, including delaying its effective date and further clarifying its requirements.
On March 28, 2022, District of Columbia Mayor Muriel Bowser signed D.C. Act 24-350, postponing the applicability date of the Ban on Non-Compete Agreements Amendment Act of 2020 (D.C. Act 23-563) (the “Act”) until October 1, 2022. As we previously reported, the D.C. Council will likely use the coming months to consider various amendments, which will hopefully offer clarity to employers.
The New York HERO Act website was quietly updated on the afternoon of March 18, 2022 to confirm that the designation of COVID-19 as an airborne infectious disease that presents a serious risk of harm to the public health has ended. This means the “activation” of HERO Act safety plans is over.
On March 17, 2022, the designation of COVID-19 as an airborne infectious disease that presents a serious risk of harm to the public health under the HERO Act ended. Private sector employers are no longer required to implement their workforce safety plans.
Next month, New Jersey private employers will need to start informing drivers before using GPS tracking devices in the vehicles they operate. A new state law that becomes effective April 18, 2022, requires employers to provide written notice to employees before using “electronic or mechanical devices” that are “designed or intended to be used for the sole purpose of tracking the movement of a vehicle, person, or device.” The notification requirement applies to both employer-owned or -leased and personal vehicles.
The U.S. Cybersecurity and Infrastructure Agency (CISA) has urged a “Shields Up” defense in depth approach, as Russian use of wiper malware in the Ukrainian war escalates. The Russian malware “HermeticWiper” and “Whispergate” are destructive attacks that corrupt the infected computers’ master boot record rendering the device inoperable. The wipers effectuate a denial of service attack designed to render the device’s data permanently unavailable or destroyed. Although the malware to date appears to be manually targeted at selected Ukrainian systems, the risks now escalate of a spillover effect to Europe and the United States particularly as to: (i) targeted cyber attacks including on critical infrastructure and financial organizations; and (ii) use of a rapidly spreading indiscriminate wiper like the devastating “NotPetya” that quickly moves across trusted networks. Indeed, Talos researchers have found functional similarities between the current malware and “NotPetya” which was attributed to the Russian military to target Ukranian organizations in 2017, but then quickly spread around the world reportedly resulting in over $10 billion dollars in damage.[1] The researchers added that the current wiper has included even further components designed to inflict damage.
New York employers seeking further relaxation of COVID-19 mitigation protocols after the recent lifting of a statewide mask mandate will have to wait. The designation of the virus as a “highly contagious communicable disease that presents a serious risk of harm to public health” that had been extended through February 15, 2022 was extended yet again. An order by the New York State Commissioner of Health continues the designation, made pursuant to the New York HERO Act, through March 17, 2022. This means that New York employers must continue to implement their safety plans ...
On February 9, 2022, New York Governor Kathy Hochul announced that she would let the New York mask mandate lapse on its Thursday, February 10, 2022 expiration date. The Governor’s lifting of the statewide rule, which required businesses to either require proof of vaccination or universal masking indoors, does not yet include an end to mandatory masking in schools, despite a slew of action to that effect in neighboring states, including New Jersey, Connecticut, and Massachusetts. California is also allowing statewide masking requirements for businesses and many other indoor public spaces to expire on February 15, 2022.
On January 27, 2022, the California Supreme Court, in Lawson v. PPG Architectural Finishes, Inc. (Cal., Jan. 27, 2022) __ P.3d __, 2022 WL 244731, clarified the evidentiary standard for presenting and evaluating retaliation claims under California Labor Code Section 1102.5 (“section 1102.5 whistleblower retaliation claim”). Lawson involved a workplace retaliation claim brought by a sales representative selling paint products to home improvement stores in Southern California. The plaintiff claimed his employer terminated him because he complained about being instructed to alter the tint of certain paint colors to avoid having to repurchase less popular paints from the retailer later.
In 2003, California lawmakers enacted Labor Code Section 1102.6, setting forth a framework for whistleblower retaliation claims that varied from the burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (“McDonnell Douglas”). Despite section 1102.6’s enactment, some California courts continued to apply the McDonnell Douglas test to section 1102.5 whistleblower retaliation claims.
In connection with the new Emergency Temporary Standards (ETS) that went into effect on January 14, 2022, the California Division of Occupational Health and Safety (Cal/OSHA) has released the following COVID-19-related resources for employers:
As we have previously explained, pursuant to Section 1 of the NY HERO Act, employers were required to prepare an airborne infectious disease exposure plan, and implement such plans when the New York State Commissioner of Health has made a designation that a highly contagious communicable disease presents a serious risk of harm to public health. Currently, such a designation is in effect until February 15, 2022. The New York State Department of Labor (“NYSDOL”) prepared model plans based on their published Airborne Infectious Disease Exposure Prevention Standard (“Standard”). On August 25, 2021, the NYSDOL published a set of emergency regulations, identical to the Standard, in the New York State Register. Although they had not been formally adopted, most businesses have been following the Standard.
The New York State Acting Commissioner of Health has extended the designation of COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to public health under the NY HERO Act until February 15, 2022. Accordingly, the airborne infectious disease exposure prevention plans required under Section 1 of the Act must be kept in place through that date, at which point the Commissioner will review whether the designation should be continued.
NYC employers will soon be required to include a minimum and maximum salary on all job postings for positions performed within the City. As we previously reported, the City Council passed Int. 1208-B (Law) on December 15, 2021, and due to new NYC mayor Eric Adam’s inaction within the 30-day veto period, it became a law as of January 15, 2022. Beginning May 15, 2022, the Law requires employers with four or more employees to include a “good faith” minimum and maximum salary range on for all advertised NYC job, promotion and transfer opportunities. Additionally, the Law makes the failure to include salary range an unlawful discriminatory practice under the City’s Human Rights Law.
As we previously reported, in December New York Governor Kathy Hochul issued a mandate requiring that masks be worn in all indoor public places, unless the business or venue requires proof of vaccination for entry. As part of the state’s “Winter Surge Plan 2.0”, the mandate, which was initially set to expire on January 15, has now been extended for an additional two weeks, through February 1, 2022.
New York recently updated two significant aspects of its Paid Family Leave program: (1) expanding the definition of “family member” to include siblings and (2) increasing the cap on weekly benefits available.
Since its inception in 2018, Paid Family Leave has offered eligible employees the ability to take job protected, partially-paid time off to bond with a new child, care for a family member with a serious illness, or provide assistance when a family member is deployed abroad on active military duty. In 2020, after years of gradual increases in the maximum amount of leave and benefits, eligible employees may use up to 12 weeks of Paid Family Leave per rolling 52-week period.
On December 22, 2021, the New York State Department of Labor (NY DOL) issued the long-awaited proposed rule (Proposed Rule) regarding the workplace safety committees that are required by the New York HERO Act (HERO Act). While there is no current effective date for the Proposed Rule (which is first subject to a public comment period and a February 9, 2022 hearing), employers should become familiar with, and consider taking actions to timely comply with the Proposed Rule should it be adopted as currently drafted.
The HERO Act
In May of 2021, New York responded to workplace safety and health issues presented by the COVID-19 pandemic by enacting the HERO Act. Since that time, the State has amended the HERO Act to allow the NY DOL additional time to create model safety standards for infectious disease exposure plans (“safety plans”) mandated by the HERO Act and to allow employers additional time for compliance.
Earlier this year, the New York State Workers' Compensation Board adopted amendments to the regulations for the New York Paid Family Leave Benefits Law clarifying that when Paid Family Leave (PFL) is taken intermittently, the maximum number of intermittent leave days an employee may take is based on the average number of days the employee works per week.
On December 27, 2021, the Centers for Disease Control and Prevention (CDC) announced an update to its isolation and quarantine guidance. Although the CDC’s update shortens both the isolation and quarantine periods, as described more fully below, the changes largely affect only asymptomatic individuals. Moreover, because local guidance may differ from the CDC’s recommendations, employers should keep in mind all applicable state and local requirements when deciding whether to amend their own rules.
On December 22, 2021, the New York Department of Labor (“DOL”) adopted rules (“Rules”) implementing the state’s sick leave law (NY Labor Law §196-b, or the “Sick Leave Law”), providing long-awaited clarification of the Sick Leave Law, which went into effect over a year ago on September 30, 2020. The Rules, codified as Section 196 to Title 12 of the NYCRR, were proposed on December 9, 2020, and adopted without change. In addition to providing definitions of terms used in the Sick Leave Law, the Rules address three topics: (i) documentation an employer may require to verify an employee’s eligibility to use sick leave; (ii) how to count the number of employees an employer has for the purposes of determining employees’ sick leave entitlement; and (iii) how to calculate an employee’s accrual of sick leave. In addition, the DOL’s response to public comments it received after the Rule was proposed, explain how carryover of accrued unused sick leave works.
On the evening of Wednesday, December 22, 2021, the Supreme Court of the United States announced that it will hold a special session on January 7, 2022, to hear oral argument in cases concerning whether two Biden administration vaccine mandates should be stayed. One is an interim final rule promulgated by the Centers for Medicare and Medicaid Services (“CMS”); the other is an Emergency Temporary Standard (“ETS”) issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”). The CMS interim final rule, presently stayed in 24 states, would require COVID-19 vaccination for staff employed at Medicare and Medicaid certified providers and suppliers. The OSHA ETS, which requires businesses with 100 or more employees to ensure that workers are vaccinated against the coronavirus or otherwise to undergo weekly COVID-19 testing, was allowed to take effect when a divided panel of the United States Court of Appeals for the Sixth Circuit, to which the consolidated challenges had been assigned by the Judicial Panel on Multidistrict Litigation, issued a ruling on December 17, 2021, lifting a stay that had been previously entered by the Fifth Circuit. Multiple private sector litigants and states immediately challenged the decision.
New York City’s private employer vaccine mandate became effective Monday. December 27, 2021 and, the City has updated its FAQs document and the Accommodations Guidance document (“Guidance”).
Guidance Updates: The Guidance was amended to reflect that the New York City Human Rights Law provides for accommodations for pregnancy and for victims of domestic violence, sex offenses, or stalking in addition to medical and religious reasons. The Guidance also clarifies that the examples for medical exemptions for vaccination were those that had been found worthy by the CDC and New York City Department of Health and Mental Hygiene. Further, the Guidance modifies some language on the religious accommodation checklist around the types of information needed to support religious accommodation requests. As we previously shared, the checklist the City recommends that employers maintain and complete in connection with each religious accommodation request does not alleviate an employer’s need to analyze such requests on a case-by-case basis.
On Monday, December 20, District of Columbia Mayor Muriel Bowser announced a “situational update,” declaring a state of emergency due to the “Winter 2022 Surge” in COVID-19 cases driven by the Delta and Omicron variants. The District will combat the current rise in COVID-19 cases with a six-pronged approach outlined in an action plan (the “Plan”) published by the Mayor’s Office and implemented under Mayor’s Order 2021-147 (the “Order”). The Plan includes expanding free testing programs, a new indoor mask mandate, and a vaccine mandate for city employees and contractors.
Expanded Testing
The District has been operating a program called “Test Yourself DC,” which provides free PCR testing kits for use at home. On December 20, 2021, nine new pick-up/drop-off sites were added to the program, making a total of 36 locations available. The Test Yourself locations are in addition to the eight public testing sites staffed by health professionals administering free PCR COVID-19 tests. Further, the program will be expanded to include “Test Yourself Express,” which will offer free at-home rapid antigen COVID-19 testing kits at eight DC public libraries. District residents who provide proof of residency will be permitted to get two free rapid tests per day and must report their results via an online portal.
Recent data thefts and systems intrusions, particularly with respect to ransomware, have assured that cybersecurity is top of mind for corporate executives and compliance officials. We at EBG have tried to keep you up to date with respect to legislative, regulatory and litigation developments and recommended best practices and procedures.
As we close out the year, we all should remain mindful that cyber criminals, especially those who are supported or protected by foreign adversaries, have little incentive to rest up during the holidays.
On December 13, 2021, the California Department of Public Health (“CDPH”) announced new Guidance for the Use of Face Coverings (“CDPH Guidance”), implementing a mandatory mask mandate for individuals (employees and patrons) in all indoor public settings, irrespective of vaccination status, beginning on December 15, 2021 through at least January 15, 2022. The CDPH Guidance requires that masks be worn by all individuals over the age of two, unless exempt for disability-related or medical condition-based reasons, and recommends the use of surgical masks or higher-level respirators.
FAQs issued by the CDPH specify that the CDPH Guidance applies to workplaces, and clarify that local public health regulations remain in effect for localities that have previously adopted face covering measures prior to issuance of the CDPH Guidance that apply regardless of vaccination status. That is, the CDPH Guidance only applies to local health jurisdictions that do not have existing indoor masking requirements. Notably, the San Francisco Department of Public Health (“SFDPH”) has taken the position, in its updated Order and FAQs, that its own masking rules remain in place—including exemptions for “stable cohorts” with 100% vaccination rates, among other criteria. Marin County and Contra Costa County have taken similar positions regarding the applicability of local health order mask exceptions. It remains unclear whether local mask exceptions apply given the CDPH Guidance masking rules.
On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” Technical Assistance Questions & Answers (the “Guidance”). The most significant change is the addition of a long-awaited discussion of “long COVID,” which other federal agencies had identified as a disability in joint guidance issued back in July.
The Guidance now contains a new Section N, which addresses when COVID-19 can be considered a disability under each of the three standards of the Americans with Disabilities Act (ADA), i.e., “actual disability,” “record of disability,” or “regarded as an individual with a disability.” Regardless of which definition may apply, the Guidance stresses the usual ADA rubric—that employers must conduct a fact intensive, case-by-case analysis to determine if an applicant or employee with COVID-19 or “long COVID” has a covered disability under the ADA.
The Commissioner of the New York Department of Health has extended the designation of COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to public health under the NY HERO Act until January 15, 2022, at which point the designation will be reviewed. Accordingly, the airborne infectious disease exposure prevention plans required under Section 1 of the Act must be kept in place through that date.
Although the New York State Department of Labor has published guidance stating that it would provide additional guidance by November 1, 2021 on Section 2 of ...
Important guidance regarding COVID-19 testing in the workplace was recently issued by the Centers for Medicare & Medicaid Services (“CMS”) in the form of Frequently Asked Questions regarding Over the Counter (“OTC”) Home Testing and CLIA Applicability.
CMS regulates clinical laboratory testing pursuant to the federal Clinical Laboratory Improvement Act (“CLIA”). Generally, a laboratory or clinical setting (such as a physician’s office) must obtain CLIA certification to perform laboratory testing. Some OTC tests, however, are approved by the Food and Drug Administration (“FDA”) for home use and the new FAQs address the use of OTC home tests in the workplace.
Governor Ron DeSantis recently signed HB 1-B, Ch. 2021-272, Laws of Fla. (the “Vaccination Exemption Law”), which prohibits every private employer from issuing COVID-19 vaccination mandates for its Florida employees without allowing employees to opt out for five specific exemptions: (i) medical reasons, including pregnancy or expectation of pregnancy, as determined by a physician, advanced practice registered nurse, or physician assistant; (ii) religious reasons, based on a sincerely held belief; (iii) COVID-19 immunity, based on prior COVID-19 infection, as documented by a lab test; (iv) periodic testing, agreed to by the employee and at no cost to the employee; or (v) based on compliant use of employer-provided personal protective equipment (“PPE”), agreed to by the employee. Employers that receive a “completed exemption statement” must allow the requesting employee to “opt out” of the employer’s vaccination requirements.[1] Employers will be found to have violated the Vaccination Exemption Law by failing to provide for exemptions in their COVID-19 vaccination mandate and terminating the employee—which includes “the functional equivalent of termination,” as defined below.
On December 2, 2021, the Florida Department of Legal Affairs issued a Notice of Emergency Rule (the “Rule”), further defining key provisions of the Vaccination Exemption Law. Moreover, this Department (headed by the Attorney General) has issued guidance in the form of FAQs (the “Guidance”), outlining the employee complaint procedure for potential employer violations of the Vaccination Exemption Law.
The Rule
Blog Editors
Recent Updates
- Video: Biden’s Final Labor Moves - Employment Law This Week
- Video: Workplace Investigation Protocols - One-on-One with Greg Keating
- Differing Approaches to Earned Wage Access Programs Lead to Regulatory Conflict
- Podcast: Beyond Non-Competes - IP and Trade Secret Assessment Strategies for Employers – Employment Law This Week
- On Trend: New Jersey Hops on the Pay Transparency Bandwagon