Posts in Technology.
Blogs
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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.

Blogs
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As more organizations across industry sectors store personal data with cloud storage vendors— including the three largest vendors in the world, Amazon Web Services (AWS), Microsoft Azure, and Google Cloud Platform—federal regulatory agencies are increasing their scrutiny of data control efforts and vetting the data privacy and security protocols of third-party vendors. AT&T’s recent settlement with the Federal Communications Commission (FCC) serves as a cautionary tale.

What Is the Cloud?

In case your cloud knowledge is, well, nebulous, cloud data storage allows user organizations to store data on remote servers that are maintained by a third party and are located off site. Users then access the data via the internet. This enables seamless collaboration and accessibility by users in disparate locations, without the burden of physical infrastructure.

According to Precedence Research, the cloud computing market will continue to rise, with the global market predicted to surpass $1 trillion by 2028. A 2023 survey of  hospital and health system leaders conducted by Global Healthcare Exchange (GBX) found “cloud-based solutions are quickly becoming a new standard within hospitals and health systems and impact nearly every domain, including supply chain, clinical, finance, and HR teams.” The survey revealed that nearly 70 percent of all hospitals and health systems are likely to adopt a cloud-based approach by 2026.

The benefits of cloud storage include scalability, cost efficiencies, increased user accessibility, and improved operational resiliency. Cloud technology can even lead to increased cybersecurity. Yet the GBX study still emphasizes the importance of selecting the “right cloud partner” to achieve the best outcome and stronger data security.

Blogs
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As featured in #WorkforceWednesday®This week, we’re spotlighting the Federal Trade Commission’s (FTC’s) decision to withdraw from a federal labor pact; the Equal Employment Opportunity Commission’s (EEOC’s) report on alleged underrepresentation in science, technology, engineering, and mathematics (STEM)-related jobs; and an appellate court’s affirmation of the National Labor Relations Board’s (NLRB’s) McLaren Macomb decision.

Blogs
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As featured in #WorkforceWednesday®This week, we’re interpreting the U.S. Department of Labor’s (DOL’s) recently updated cybersecurity guidance for all employee benefit plans covered under the Employee Retirement Income Security Act (ERISA).

The DOL recently clarified that its 2021 cybersecurity guidance applies to all ERISA-covered employee benefit plans, including health and welfare plans. This clarification raises important questions for employers regarding compliance and security.

Epstein Becker Green attorneys Brian G. Cesaratto and Samuel C. Nolan provide their analysis of the key cybersecurity considerations and best practices for risk mitigation that employers should consider in light of the updated guidance.

Blogs
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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.

Blogs
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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.

Blogs
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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:

Blogs
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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.
Blogs
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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.

Blogs
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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:

Blogs
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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 ...

Blogs
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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 ...

Blogs
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Recently, the Sixth Circuit found that the Fair Credit Reporting Act (“FCRA”) preempted a former employee’s state law defamation claim against his former employer.  While the FCRA can impose burdensome requirements on the entities that fall within its scope, including consumer reporting agencies (“CRAs”), furnishers, or users of consumer reports, the FCRA can also serve as a shield against certain state law tort claims.

In McKenna v. Dillion Transportation, LLC,  plaintiff, a truck driver named Frank McKenna, sued his former employer, Dillon Transportation, LLC, for ...

Blogs
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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 ...

Blogs
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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 ...

Blogs
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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 ...

Blogs
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Since the dawn of digitalization, the collection and retention of personal and other business confidential data by employers has implicated security and privacy challenges—by amassing a treasure trove of data for bad actors (or unwitting/unauthorized employees) and drawing a roadmap for those seeking to breach the system. Adding artificial intelligence (AI) into the mix creates further areas of concern. A recent survey undertaken by the Society of Human Resource Management of more than 2000 human resources professionals indicates that AI is being utilized by the majority of ...

Blogs
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A recent decision from the Northern District of Illinois highlights new legal hurdles for employers using AI-powered video interview technologies under Illinois’ Biometric Information Privacy Act (BIPA), 740 ILCS 14/15.  In Deyerler v. HireVue, initially filed over two years ago in January 2022, a class of plaintiffs alleged that HireVue’s AI-powered facial expression and screening technology violated BIPA.  According to the complaint, HireVue collected, used, disclosed, and profited from “biometric identifiers” without complying with the requirements of BIPA.  ...

Blogs
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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 ...

Blogs
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On December 8, 2023, the California Privacy Protection Agency (“CPPA”) Board (the “Board”) held a public meeting to discuss, among other things, regulations addressing: (1) cybersecurity audits; (2) risk assessments; and (3) automated decisionmaking technology (“ADMT”).  After years in the making, the December 8 Board meeting was another step towards the final rulemaking process for these regulations.  The Board’s discussion of the draft regulations revealed their broad implications for businesses covered by the California Consumer Privacy Act ...

Blogs
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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 ...

Blogs
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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 ...

Blogs
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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 ...

Blogs
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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 ...

Blogs
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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 ...

Blogs
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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 ...

Blogs
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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 ...

Blogs
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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 ...

Blogs
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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 ...

Blogs
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While recent public attention has largely focused on generative artificial intelligence (AI), the use of AI for recruitment and promotion screening in the employment context is already widespread.  It can help HR-professionals make sense of data as the job posting and application process is increasingly conducted online. According to a survey conducted by the Society for Human Resource Management (SHRM),[1] nearly one in four organizations use automation and/or AI to support HR-related activities, such as recruitment, hiring, and promotion decisions, and that number is posed ...

Blogs
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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 ...

Blogs
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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 ...

Blogs
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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 ...

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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).

Blogs
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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:

Blogs
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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.

Blogs
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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.

Blogs
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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:

Blogs
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As featured in #WorkforceWednesday This week, we analyze how employers can benefit from artificial intelligence (AI) innovations while remaining in compliance with federal regulations:

AI is evolving faster than ever before. How can employers prepare for the future of AI in the workplace? Epstein Becker Green attorneys Alexander J. Franchilli and J.T. Wilson III tell us how looming federal regulations and diversity, equity, and inclusion concerns are creating a turbulence of compliance and innovation.

Blogs
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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.

Blogs
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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.

Blogs
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On May 3, 2023, Maryland Governor Wes Moore signed into law SB 828, which amends the state’s Family and Medical Leave Insurance Program (the “Program”) that was originally established in April 2022. As we previously reported, the Program generally provides eligible employees with 12 (but in some cases, 24) weeks of paid leave to be used for certain covered family and medical-related absences. The Program and SB 828’s amendments—which will take effect on June 1, 2023—are nuanced, so below are five significant updates from the new legislation for Maryland employers to consider.

Blogs
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*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. 

Blogs
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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.

Blogs
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As featured in #WorkforceWednesday This week, we’re taking a closer look at ChatGPT, exploring the opportunities and risks associated with this artificial intelligence (AI) technology, and providing valuable insights for employers who are looking to stay ahead of the curve:

ChatGPT is set to become the next big thing for employers and beyond. What potential issues should employers be aware of? Epstein Becker Green attorney Brian G. Cesaratto explains how critical it is for employers to think through the workplace-related risks.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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As we previously noted, New York City’s Automated Employment Decision Tools Law (“AEDT Law”), regulating employers’ use of automated employment decision tools, with the aim of curbing bias in hiring and promotions, had an effective date of January 1, 2023.  In late September 2022, we reported about the New York City Department of Consumer and Worker Protection (“DCWP”) issuing a Notice of Public Hearing and Opportunity to Comment on Proposed Rules related to the AEDT law.  The hearing subsequently took place on November 4, 2022, and dozens of organizations and individuals submitted comments, leaving many observers wondering whether the comments would impact the quickly approaching January 1, 2023 enforcement date and how the DCWP would interpret the law.

Blogs
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Laws protecting whistleblowers generally afford anti-retaliation protections when employees “step out of their role” to report discrimination and dangerous or illegal activity, but not to employees when they are performing their issue spotting job duties.  Employers who understand this distinction are well positioned to manage underperforming employees in sensitive issue-spotting roles such as information technology, compliance, internal audit and even in-house counsel without running afoul of anti-retaliation laws.  The Second Circuit Court of Appeal’s recent decision affirming the Southern District of New York’s dismissal of whistleblower retaliation claims in Johnson v. Board of Education Retirement System of City of New York illustrates this distinction.

Blogs
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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.

Blogs
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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.

Blogs
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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”).

Blogs
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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.

Blogs
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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”).

Blogs
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As featured in #WorkforceWednesday:  This week, we look at the trend of “quiet quitting” and the legal and technology considerations employers should weigh when navigating the issue.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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As featured in #WorkforceWednesdayThis week, we focus on compliance and transparency when using artificial intelligence (AI) tools in employment decision-making.

Blogs
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Prompted by the widespread adoption and use of video-conferencing software following the COVID-19 pandemic, many employers have shifted toward video interviews to evaluate potential hires. Even as employers have begun to require in-office attendance, the widespread use of video interviewing has continued, because it is a convenient and efficient way to evaluate applicants. Some of the video interviewing tools used by employers incorporate the use of artificial intelligence (AI) in an effort to maximize the effectiveness of the interview process. Often, employers contract with third-party vendors to provide these AI-powered interviewing tools, as well as other tech-enhanced selection procedures.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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On March 15, 2022, President Biden signed into law the 2022 Consolidated Appropriations Act containing the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (the “Cyber Incident Reporting Act”). While President Biden’s remarks highlighted the $13.6 billion in funding “to address Russia’s invasion of Ukraine and the impact on surrounding countries,” the 2022 Consolidated Appropriations Act contained numerous other laws, including the Cyber Incident Reporting Act, which should not be overlooked. The Cyber Incident Reporting Act puts in motion important new cybersecurity reporting requirements that will likely apply to businesses in almost every major sector of the economy, including health care, financial services, energy, transportation and commercial facilities. Critical infrastructure entities should monitor the upcoming rule-making by the Cybersecurity and Infrastructure Security Agency (“CISA”), as the final regulations will clarify the scope and application of the new law.

Blogs
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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.

Blogs
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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.

Blogs
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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:

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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.

Blogs
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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 ...

Blogs
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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.

Blogs
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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

Blogs
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On November 19, 2021, the U.S. House of Representatives passed the Build Back Better Act (BBBA or the Act), [1] which, if enacted, would be the first federal enhancement of family and medical leave for private sector workers since the enactment of the Family and Medical Leave Act (FMLA) in 1993. While the BBBA does not go as far as initially proposed (12 weeks of paid leave), it would expand upon the FMLA’s current unpaid protections by providing up to four weeks of paid caregiving leave. Further, the BBBA would allow paid leave benefits for a broader group of eligible workers and for additional qualifying family members beyond those covered by the FMLA. If enacted, the paid family leave program would become effective January 2024.

Blogs
Clock 4 minute read

As of December 11, 2021, the Bill regulating employers’ use of automated employment decision tools has been enacted.  Compliance with the Bill’s requirements begins January 1, 2023.

***

Joining Illinois and Maryland, on November 10, 2021, the New York City Council approved a measure, Int. 1894-2020A (the “Bill”),  to regulate employers’ use of  “automated employment decision tools” with the aim of curbing bias in hiring and promotions.  The Bill, which is awaiting Mayor DeBlasio’s signature, is to take effect on January 1, 2023. Should the Mayor not sign the Bill within thirty days of the Council’s approval (i.e., by December 10), absent veto, it will become law.

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