On October 8, 2021, the New York State Department of Labor (“NYSDOL”) issued guidance in the form of Frequently Asked Questions (“FAQs” or the “Guidance”) to assist employers in navigating the Marijuana Regulation and Taxation Act (“MRTA” or the “Act”) and in understanding what they can and cannot do. As we previously reported, the MTRA, enacted on March 31, 2021, legalized recreational cannabis in the State. Of particular importance to employers, the Act amended New York Labor Law Section 201-D (“Section 201-D”) to create new legal protections for employees who engage in off-duty, off-premises cannabis use.

The FAQs address several common workplace situations related to recreational cannabis use by employees, which we summarize below.

Identifying “Specific Articulable Symptoms of Impairment”

As amended by the MRTA, Section 201-D prohibits employers from discriminating against employees based on their use of cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property.  The law, however, permits employers to take employment action against an employee for cannabis use, provided the employee “manifests specific articulable symptoms of impairment” on the job that either (a) “decrease or lessen the employee’s performance of the employee’s tasks or duties”; or (b) “interfere with the employer’s obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws.”

The Act does not define “impairment,” and the FAQs acknowledge that there is “no dispositive and complete list of symptoms of impairment.”  The FAQs advise employers to determine whether an employee is evidencing articulable symptoms of impairment based upon “objectively observable indications that the employee’s performance of the duties . . . of their position are decreased or lessened.”  As an example, the Guidance explains that operating heavy machinery in an unsafe or reckless manner could be an articulable symptom of impairment.  Of note, the Guidance cautions employers that objectively observable indications of impairment could “also be an indication of a disability[,].” thus tacitly suggesting that employers proceed cautiously before taking adverse action because of presumed cannabis impairment.

The FAQs emphasize that signs an employee may have used cannabis that do not demonstrate impairment, for example, the smell of cannabis, cannot be relied upon as the sole evidence of an impairment and cannot be the sole reason for disciplinary action against an employee.  Similarly, a positive drug test cannot alone serve as the basis for concluding that an employee was impaired at work by the use of cannabis.

In other words, mere indications of cannabis use, such as odor, are not the same as signs of impairment and alone are insufficient to support an adverse employment action.  An employee’s use of cannabis during work hours or while using employer property, however, does constitute grounds for discipline, even without signs of impairment.

Drug Testing of Employees

As we also previously reported, the New York City Human Rights Law prohibits pre-employment testing for cannabis.  Although the MRTA does not ban testing for cannabis, the FAQs confirm that New York employers (outside the City’s five boroughs) may not test employees for cannabis unless they can first point to an articulable symptom of impairment that lessens or decreases performance, or has a bearing on workplace safety.  Thus as a practical matter, the MRTA essentially bars pre-employment and random drug testing for cannabis in New York, except where federal or state law requires—not merely permits—it for the employee’s position (e.g., federally mandated drug testing for drivers of commercial motor vehicles). Reasonable suspicion testing, i.e., where the employee manifests specific articulable symptoms of impairment, is allowed. The Guidance does not address how the law applies to unionized work places that may have collective bargaining agreements or policies permitting random drug testing or have a lower standard for drug testing than what the Act requires.

Use or Possession During Work Hours or on Work Premises

The FAQs state that employers may prohibit cannabis use during “work hours,” which for the purposes of the Act means “all time, including paid and unpaid break and meal periods, that the employee is suffered, permitted or expected to be engaged in work, ‘on-call,’ and all time the employee is actually engaged in work.”

Employers may also prohibit employees from using, possessing or otherwise bringing cannabis onto the employer’s property at any time. An employer’s property includes leased or rented space, company vehicles, and areas used by employees within the employer’s property (e.g., lockers, desks, etc.).

In the hybrid or remote work environment, it is important to note that an employee’s private residence is not considered a “worksite” by the NYSDOL.  Accordingly, an employer may only take action against an offsite remote employee if the employee exhibits articulable symptoms of impairment during work hours, and not for the employee’s use or possession at home.

Workplace Policies

The FAQs reiterate that amended Section 201-D generally does not permit employers to prohibit the use of cannabis outside of the workplace. New York employers may, however, continue to prohibit employees who work away from their employers’ premises (e.g., in the field or at a client’s location) from using cannabis at those locations.

The Guidance also explains that employers cannot require employees to waive their Section 201-D rights as a condition of hire or continued employment.  Employers engaging in “last chance agreements” with employees should take particular note of this prohibition when drafting those agreements.

Applicability

The FAQs confirm that the MRTA applies to both public and private New York State employers and to all employees over the age of 21.  The Guidance reiterates that the Act does not cover non-employees, such as independent contractors, volunteers, and students who are not employees.

WHAT THIS MEANS FOR EMPLOYERS

New York employers should review their drug-free workplace, conduct and substance abuse and other policies and procedures that may address cannabis use in the workplace, and revise them as needed to comply with Act’s prohibition of discrimination against off-duty, off-worksite use of cannabis.  Employers suspecting cannabis impairment during an employee’s work hours must be able to point to objective indications of impairment, related to either decreased or lessened performance or workplace safety.  Smell alone, for example, is not a sufficient indication of impairment.

Employers should also review their employee policies and practices concerning drug screening and testing, including random and reasonable suspicion-based drug testing.  Employers may wish to consider eliminating pre-employment drug testing for cannabis, unless it is required by state or federal law for the position.  Further, employers with unionized workers should review their collective bargaining agreements and policies to determine what changes may be necessary in response to the Act and whether such changes will be subject to a duty to bargain with employees’ bargaining representatives.

Lastly, employers should monitor the Office of Cannabis Management website for guidance on identifying impaired workers.

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*Kamil Gajda, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.

On Monday, October 25, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued updates to its online technical assistance for employers, providing guidance for managing workplace issues arising from the ongoing COVID-19 pandemic in compliance with the panoply of federal anti-discrimination laws that it enforces.

The updated guidance now includes a new section “L” entitled Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates. The new material includes links to federal regulations regarding religious discrimination as well as previously issued guidance on reasonable accommodations. The new material uses a Question and Answer (“Q&A”) format to address common issues faced by employers mandating employee vaccinations.

In announcing the update, the EEOC acknowledged that many employers are requiring employees to be vaccinated against COVID-19 as a condition of their employment, and listed the following “key updates”:

  • Applicants and employees must inform their employers if they seek an accommodation from the employer’s COVID-19 vaccine requirement due to a sincerely held religious belief, practice, or observance.
  • Title VII requires employers to consider requests for religious accommodations but does not protect social, political, or economic views, or personal preferences of employees who seek exemptions from a COVID-19 vaccination requirement.
  • Employers that demonstrate “undue hardship” are not required to accommodate an employee’s request for a religious accommodation.

The six Q&As offer detailed responses to inquiries on the topics of:

  • Employee notification to employer of a request for religious accommodation: Employees do not need to use “magic words” to seek accommodations, but must convey that there is a conflict between their sincerely held religious beliefs and the employer’s vaccination requirement.
  • Whether employers may question the sincerity of a belief cited in an employee’s request for religious accommodation: While employers generally should assume that a religious accommodation request is based on a sincerely held religious belief, they may make a limited factual inquiry if there is an objective basis for questioning either the religious nature or the sincerity of a particular belief. The EEOC states that an employee’s sincerity is largely a matter of credibility. In determining such credibility, employers may consider factors such as: whether the employee has acted in a manner inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect; and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.
  • How to assess whether a request can be accommodated or poses an undue hardship: An accommodation poses an undue hardship if it will cause the employer to bear more than a “de minimis” (i.e., minimal) cost – in the form of direct monetary costs or operational burdens, including the risk of spread of COVID-19 to other employees or the public. The EEOC directs employers to rely on objective information as opposed to speculation when assessing whether an accommodation will impose an undue hardship.
  • Whether an employer’s accommodation of one request based on sincerely held religious beliefs means that all such requests must be accommodated: Employers must evaluate each accommodation request individually. In doing so, they may consider the type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation.
  • The extent to which employees can demand specific accommodations: Employees are entitled to a reasonable, but not their preferred, accommodation.
  • The permanence of any employee’s accommodation: The accommodation and undue hardship analysis must take into account changing circumstances; therefore, the accommodation may be changed or discontinued.

The new EEOC material provides employers nationwide with further guidance, as many await issuance of a new Emergency Temporary Standard (“ETS”) from the federal Occupational Safety and Health Administration (“OSHA”). OSHA was directed to develop the ETS to implement President Biden’s directive that all U.S. employers with 100 or more employees ensure that all employees are either vaccinated against COVID-19 or produce a weekly negative COVID-19 test.

Employers must also remain mindful of state and local requirements with respect to religious accommodations. For example, New York State and New York City law define “undue hardship” as an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system).

Finally, an employer need not grant a religious accommodation if it would prohibit the employee from performing the essential functions of their position.

There has been a rash of litigation in recent months challenging employers’ COVID-19 vaccination mandates. While most courts have looked favorably upon policies and procedures designed to promote workplace and community health and safety, such practices should be implemented thoughtfully and fairly. Employers fielding requests for accommodations from vaccination (or any other) policies, whether due to religious beliefs or a disability, should consult with counsel to ensure that their responses are defensible against potential claims of discrimination.

 

As featured in #WorkforceWednesdayThis week, we focus on the uptick in requests for remote work as a reasonable accommodation during COVID-19 and what employers should consider when addressing them.

Remote Work and Reasonable Accommodations

A recent Equal Employment Opportunity Commission (EEOC) disability discrimination lawsuit shows the agency is closely watching and is interested in litigating cases where an employer fails to provide employees with reasonable accommodations in connection with requests for remote work during the pandemic. As these requests continue to increase due to COVID-19, attorney Shira Blank tells us more about the EEOC lawsuit and what it could mean for employers in the future.

Video: YouTubeVimeo.
Podcast: Apple PodcastsGoogle PodcastsOvercastSpotifyStitcher.

Important Vaccination Mandate Dates for Covered Federal Contractors

Employers should be aware of several dates and deadlines related to compliance with President Biden’s executive order requiring federal contractors and subcontractors to implement mandatory vaccination policies for their workforces. Read more.

Senior Industry Leaders Need to Learn About AI

Incorrectly adopting artificial intelligence (AI) and algorithms for important employment functions can lead to liability, such as when algorithms facilitate the selection of qualified individuals for hire or promotion. Far too often today, AI exposes businesses to liability because decision makers don’t understand how their AI and underlying algorithms really work. Senior leaders and in-house counsel should consider educational programs to help them better make decisions about AI. Read more.

For Other Highlights and more news, visit http://www.ebglaw.com/eltw231.

*UPDATE, Nov. 11, 2021: Deadline for Compliance Extended to January 18, 2022, and Federal Guidance Updated. Stay tuned!

In response to the Path Out of the Pandemic: COVID-19 Action Plan announced by President Biden on September 9, and Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (the “Order”), signed by the President the same day, the Safer Federal Workforce Task Force (“Task Force”) issued “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” (“Guidance”) on September 24, 2021. We addressed the Order and Guidance in prior blog posts, one from October 13, 2021, and one from September 28, 2021.

The Order requires all executive departments and agencies of the federal government to ensure that covered contracts and contract-like instruments include a clause (“Clause”) requiring covered federal government contractors and subcontractors at any tier (“Covered Contractors”), for the duration of their respective contracts, to comply with the requirements of the Order and all guidance published by the Task Force.  The requirements apply to new contracts awarded on or after October 15, 2021, and to contracts entered before that date when an option is extended or an extension is made.

Important Dates for Covered Contractors:

  • October 15, 2021 – For all contracts awarded prior to October 15, where performance is ongoing, the Clause must be incorporated when an option is exercised or an extension is made. Between October 15 and November 14, agencies must include the Clause in their solicitations.  The government encouraged agencies and contractors to include the Clause in contracts that were solicited before October 15, but did not require them to do so.
  • November 14, 2021 – All new contracts awarded on or after November 14 must include the Clause.
  • December 8, 2021 – All Covered Contractor Employees under existing contracts are to be fully vaccinated for COVID-19 no later than December 8, unless the employee is legally entitled to an accommodation. The Guidance, however, is silent as to the treatment of employees who are not vaccinated by the deadline, and it does not require contractors to terminate the employment of unvaccinated workers. Employers need to consider how they will respond to employees who refuse to be vaccinated and are not entitled to an accommodation under the law.  In doing so, employers should review the FAQs issued to federal agencies regarding vaccination and the considerations listed for enforcement of the vaccination requirement.
  • Post-December 8, 2021 – All Covered Contractor Employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.

As of October 15, 2021, federal agencies are directed to include the Clause mandating compliance with the Order in their covered government contracts.  At present, some agencies are being very aggressive in demanding that the Clause be included in new contracts and before any existing contract option or renewal is acted upon.  Contractors should therefore begin the process of collecting employee vaccination information. To be fully vaccinated by the December 8, 2021 deadline, Covered Contractor Employees must receive their final shot by November 24, 2021.  Covered Contractors should also set a date well in advance of December 8, 2021, by which employees may request accommodations so that the employers can engage in the interactive process. Accommodations could include regular COVID-19 testing, masking, social distancing and/or remote work.

We will continue to monitor the ongoing developments regarding federal government-mandated vaccinations and remain available to assist companies in determining the applicability and implementation of the Order’s requirements.

 

As featured in #WorkforceWednesday:  This week, we review the status of the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard (ETS) requiring employers to mandate vaccines.

Employers Await White House Decision on OSHA ETS

Last week, OSHA sent to the White House its draft emergency temporary standard, which will require employers with 100 or more employees to ensure that their employees are vaccinated or provide a negative COVID test at least weekly. The Office of Information and Regulatory Affairs will now review OSHA’s ETS, holding meetings with business groups, worker groups, and other interested parties. Meanwhile, further clarification has been released on the mandatory safety protocols and vaccination requirements federal contractors must implement.

Texas Governor Bans Vaccine Mandates

In direct response to the federal contractor mandate and pending ETS, Texas Governor Greg Abbott instituted an executive order prohibiting Texas employers from mandating vaccines for employees who object to becoming vaccinated due to “personal conscience,” including religious beliefs and medical reasons. Read more about the Texas order.

Health Plan Discounts OK for Vaccinated Employees

The U.S. Departments of Labor, Health and Human Services, and the Treasury collectively published Frequently Asked Questions (FAQs) around health premium incentives for vaccines. The FAQs clarified that employers can give premium discounts or impose a surcharge on health plan participants based on their COVID-19 vaccination status. The Equal Employment Opportunity Commission took a similar position earlier this year.

See below for the video and podcast links. For Other Highlights and more news, visit https://www.ebglaw.com/eltw230.

Video: YouTubeVimeo.
Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.

Since President Biden issued Executive Order 14042 (the “Order”), and the Safer Federal Workforce Task Force (the “Task Force”) issued companion Guidance interpreting the Order (our summary of which can be found here), there have been additional developments providing further clarity on the implementation of the required COVID-19 safety protocols for federal contractors.

On September 30, 2021, the Federal Acquisition Regulation (“FAR”) Council issued a Memorandum on Issuance of Agency Deviations to Implement Executive Order 14042.  Since that date, a number of federal agencies have issued class deviations to incorporate required language into their covered contracts.  On October 4, 2021, the Task Force updated its FAQs on Vaccinations.

FAR Council Memo

The much-anticipated FAR Council Memorandum provides federal agencies that award contracts under the FAR with direction for the incorporation of a clause into their solicitations and contracts to implement the requirements of the Order and Task Force Guidance (the “FAR Deviation Clause”).  The memorandum includes the language of the FAR Deviation Clause, which provides, in relevant part:

  • Contractors subject to the FAR Deviation Clause must comply with all guidance, including guidance conveyed through FAQs that may be amended during the performance of the contract, published by the Task Force.
  • Contractors must include the substance of the FAR Deviation Clause in, and flow down its requirements to, all subcontracts of any tier that exceed the simplified acquisition threshold ($250,000) and are for services, including construction, that are performed whole or in part within the United States or its outlying areas.

The FAR Council Memorandum clarifies that the Clause must be included in the following solicitations and contracts for services:

  • new contracts awarded on or after November 14, 2021 from solicitations issued before October 15, 2021 (including new orders awarded on or after November 14 from solicitations issued before October 15 under existing indefinite delivery, indefinite quantity (IDIQ) contracts);
  • new solicitations issued on or after October 15, 2021 and contracts awarded pursuant to those solicitations (including new solicitations issued on or after October 15 for orders awarded pursuant to those solicitations under existing indefinite-delivery contracts);
  • extensions or renewals of existing contracts and orders awarded on or after October 15, 2021; and
  • options on existing contracts and orders exercised on or after October 15, 2021

Importantly, the memorandum reiterates the Task Force Guidance’s encouragement that agencies include the COVID-19 safety protocols and the FAR Deviation Clause in contracts and subcontracts not expressly covered by the Order, including contracts that have been or will be awarded prior to November 14 on solicitations issued before October 15; and contracts that are not covered or directly addressed by the Order, because the contract or subcontract falls under the simplified acquisition threshold or is a contract or subcontract for the manufacturing of products.

The FAR Deviation Clause, however, does not apply to contracts with Indian Tribes under the Indian Self-Determination and Education Assistance Act, or solicitations and contracts in which performance is outside the United States or its outlying areas.

The FAR Council directs agencies to act expeditiously to issue deviations so that contracting officers may begin to apply the Clause on or before October 15, 2021.  Pursuant to a September 30, 2021, letter from the Civilian Agency Acquisition Council (the “CAAC Letter”), agencies that adopt the Clause without change will be considered to have consulted with the CAAC Chair, as required by FAR 1.404(a)(1).

Class Deviations by Federal Agencies

Following the FAR Council’s directive and the issuance of the CAAC Letter, a number of federal agencies have since issued class deviations, including the Department of Defense, the Department of Homeland Security, the Department of Justice, the Department of Veteran Affairs, the General Services Administration (“GSA”) (as well as modification to the Multiple Award Schedule), the National Aeronautics and Space Administration, and the Millennium Challenge Corporation.

These class deviations provide further insight as to how individual agencies will approach the Order and any mass modification program.  The GSA, in particular, provides detailed information in its Class Deviation CD-2021-13 as to the scope, applicability, and implementation of the Order and its corresponding Guidance.  In order to simplify compliance tracking, vendor communication, and customer messaging efforts, the GSA will incorporate the Clause into all new and existing contracts, including contracts solely for products.  The FAR Deviation Clause will be incorporated into GSA contracts through a bilateral modification.

GSA contracting officers are asked to complete as many modifications as possible before November 14, 2021.  The GSA also provides some insight as to potential interim penalties, at least with respect to IDIQ contracts, that are not returned signed by that date.  Contracting officers may temporarily hide contractor information on GSA websites and/or e-tools, or flag contractors that have not accepted the modification.  Such actions could clearly impact potential new or additional business for contractors that have not signed the modification.

Task Force FAQs

In addition to the FAQs provided for federal contractors, the Task Force also has updated its FAQs regarding vaccination for federal employees.  Although these vaccination FAQs do not apply directly to federal contractors, they are a useful guide to issues that will be confronted by contractors seeking to comply with EO 14042.

For instance, the FAQs address the considerations federal agencies should take into account when determining whether an employee should be entitled to an exception to the vaccination requirement.  The FAQs instruct agencies to consider “factors such as the basis for the claim; the nature of the employee’s job responsibilities; and the reasonably foreseeable effects on the agency’s operations, including protecting other agency employees and the public from COVID-19.”  Employees who are granted an exception “would [generally] need to follow applicable masking, physical distancing, and testing protocols for individuals who are not fully vaccinated, as well as applicable travel guidance.”  But, in certain cases in which the agency determines that no safety protocol other than vaccination would adequately protect coworkers, the agency may deny the requested accommodation.

In cases in which the agency denies an exception, the employee must receive their first (or, if a one-dose series, only) dose within two weeks of the denial, and the second dose (if applicable) within 6 weeks of receiving the first dose.  Employees that refuse vaccination are subject to discipline, up to and including termination of employment. The FAQs recommend the adoption of an enforcement process that includes a brief, five-day period of education and counseling to encourage vaccination, followed by progressive discipline that would include a short suspension of 14 days or less.

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With October 15, 2021 almost here, and the other upcoming deadlines in the Guidance, we anticipate further clarifications from the Task Force and individual agencies.  We will continue to monitor the ongoing developments in this area and remain available to assist companies in determining the applicability and implementation of the Order’s requirements.

On Monday, October 11, 2021, Texas Governor Greg Abbott issued Executive Order GA-40 (the “Order”) prohibiting vaccine mandates by any entity. The Order, which was effective upon issuance, states: “No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” It provides for a maximum fine of up to $1,000 per violation for any failure to comply with the order. In addition, it suspends the powers of the state’s emergency management director and the authority of local officials, including the Department of State Health Services’ preemptive authority, with respect to the declaration of local disasters and coordination or control of public health emergencies, to the extent necessary to ensure they do not impose restrictions that are inconsistent with the Order.

The Order is intended to remain in effect until Texas lawmakers pass legislation on the subject. To that end, Gov. Abbott has asked that the issue be added as an item to the third legislative special session, which ends on October 19, 2021.

The Order’s preamble strongly encourages COVID-19 vaccines for those who are eligible to receive vaccination, but asserts that vaccination must be voluntary for Texans and goes on to characterize the Biden Administration’s vaccination policy as “yet another instance of federal overreach” that is “now bullying many private entities into imposing COVID-19 vaccine mandates.”

This newest executive order currently leaves open the question of whether its prohibition of vaccine mandates by employers creates an impermissible conflict with federal vaccination mandates, including the federal contractor vaccine program and the anticipated Emergency Temporary Standard to be issued by the Occupational Safety and Health Administration. For now, Texas employers contemplating vaccine mandates or making decisions based on employees’ refusal to get vaccinated will be constrained to walk a fine line to maintain state and federal compliance.  We are continuing to track updates regarding this Order, as well as any legislative developments that would lend more insight and guidance.

As featured in #WorkforceWednesday:  This week, we focus on what can be learned from the Equal Opportunity Employment Commission’s (EEOC’s) fiscal year (FY) 2021 filings as employers continue to navigate COVID-19 in the months ahead.

EEOC: Back in Enforcement Action

The EEOC increased its FY 2021 filings by 12 percent, signaling to employers that the agency is returning to a more robust enforcement level after a downturn in activity last year amid COVID-19. Attorneys Jim Petrie and Amy Bharj tell us more about what we can learn from the past year’s cases.

Video: YouTubeVimeo.
Podcast: Apple PodcastsGoogle PodcastsOvercastSpotifyStitcher.

New York Limits Private Confidential Settlements of Human Rights Complaints

The New York State Division of Human Rights (NYSDHR) has issued a notice announcing a significant change in policy regarding the NYSDHR’s processes for complaint resolution. After October 12, 2021, the NYSDHR will no longer grant requests for discontinuance of complaints due to confidential private settlements. Private confidential settlements will no longer be an option for complaints filed after October 12. Read more.

Anti-Harassment Training for the Virtual and Hybrid Workplace

As the past year’s EEOC filings indicate, it has become critical that your anti-harassment training addresses inappropriate behaviors that can occur in virtual spaces, such as texting, chats, and social media. Learn more about how our e-learning course, Halting Harassment, has been updated to include scenarios employees may encounter in the virtual and hybrid work environment. Read more.

See below for the video and podcast links. For Other Highlights and more news, visit http://www.ebglaw.com/eltw229.

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

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

In addition, the Law amends N.J.S.A. 10:3-1 to eliminate a mandatory retirement provision that permitted governmental employers to require retirement when employees attained a particular age, if the employer could show “that the retirement age bears a manifest relationship to the employment in question.”  With the amendment, public employers may require retirement upon attainment of a set age only if they can show that the person is “unable to adequately perform the[ir] duties.”

What This Means for Employers:

The Law gives stronger protections to employees over the age of 70 and makes it more difficult for New Jersey public employers and higher education institutions to set mandatory retirement ages.  It also enhances the incentives for employees over age 70 to file a claim if they believe they have been terminated, not hired, or passed over for promotion because of age.  With the enactment, New Jersey employers must be ever more mindful to ensure their employment decisions are based on qualifications and other legitimate business reasons, and not on stereotyped notions of age.

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Kamil Gajda, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.

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

To help employers comply with the HERO Act’s requirements, the New York State Department of Labor (“NYSDOL”) has published a variety of guidance materials, such as model Safety Plans, including Information and Frequently Asked Questions (“FAQs”) that were recently updated. The new FAQs contain important changes for employers concerning Safety Plans, as required under Section 1 of the HERO Act, as well as the HERO Act’s joint labor-management workplace safety committee requirements under Section 2, effective November 1, 2021. FAQs are now available in 11 languages on the NYSDOL’s HERO Act website.

Safety Plan Updates (Section 1 of the HERO Act)

The updated FAQs focus on the requirements imposed by Section 1 of the HERO Act, which is the portion of the law mandating employers to implement Safety Plans when an infectious disease is designated as a serious risk. The FAQs now state that employers must implement HERO Act Safety Plans specifically for COVID-19 due to the New York Commissioner of Health’s designation. Importantly, the updated FAQs eliminate certain guidance contained in the previous FAQs regarding alternative Safety Plans. As a reminder, employers who do not adopt a model Safety Plan as provided by the NYSDOL, and instead create their own Safety Plan, must engage their employees in meaningful participation to develop such an alternative plan.

This left the question open as to whether minor (or more substantial) alterations to a model Safety Plan could potentially convert such plan into an alternative Safety Plan, and thus require meaningful participation from employees. The previous FAQs stated that “amendments to such [model Safety Plans] that go beyond the open fields of such template likely do constitute an ‘alternative plan’ requiring employee review and/or participation.” This language has been removed from the current FAQs. Accordingly, employers should still be cautious in making any modifications to their Safety Plans outside of the open fields where they are required to input information, such as in the Physical Distancing and Engineering/Administrative Controls sections.

According to the updated FAQs, employers should no longer be on the lookout for any additional model Safety Plans. As of this writing, the NYSDOL has released a general model Safety Plan in English as well as in Spanish, and 11 industry-specific model Safety Plans. The previous FAQs stated that the NYSDOL will consider additional templates as such feedback is received, but this language has been removed from the updated FAQs.

Additionally, the updated FAQs provide that employers who have a workplace safety committee in place under Section 2 of the HERO Act must review any Safety Plan modifications made after November 1, 2021 with such workplace safety committee.

Workplace Safety Committee Updates (Section 2 of the HERO Act)

While these updated FAQs are, per their new title, focused on Section 1 of the HERO Act, they also provide some clarity regarding Section 2 – the workplace safety committee portion of the HERO Act. Effective November 1, 2021, Section 2 requires private employers with 10 or more employees to allow employees to establish and administer a joint labor-management workplace safety committee.

The previous FAQs created some confusion, as certain areas of the guidance indicated that employers with 10 or more employees were required to establish such workplace safety committees, not merely allow the employees to establish them. The updated FAQs resolve this confusion by now matching the statutory language that employers need only allow employees to create such committees. Thus, consistent with legislative language, there is no affirmative HERO Act requirement for employers to create workplace safety committees.

The updated FAQs also explicitly provide that the NYSDOL will provide additional guidance regarding Section 2 of the HERO Act prior to November 1, 2021. We will provide updates as they become available.