Workforce Bulletin

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 ...

On March 28, 2022, District of Columbia Mayor Muriel Bowser signed D.C. Act 24-350, postponing the applicability date of the Ban on Non-Compete Agreements Amendment Act of 2020 (D.C. Act 23-563) (the “Act”) until October 1, 2022.  As we previously reported, the D.C. Council will likely use the coming months to consider various amendments, which will hopefully offer clarity to employers.

The first state to implement workplace health and safety standards for COVID-19 is poised to roll back those requirements. Virginia’s Permanent COVID-19 Employee Health and Safety Requirements (the “Permanent Standard”) established requirements for employers to control, prevent, and mitigate the spread of COVID-19.  However, with the Omicron wave receding, Virginia Governor Glenn Youngkin says the Permanent Standard presents “a significant burden on businesses” and should be reconsidered.

Pursuant to Governor Youngkin’s Executive Order issued on January 15, 2022, the Virginia Safety and Health Codes Board (the “Board”) convened on February 16, 2022, to determine whether the Permanent Standard is still necessary.  Adopting the Virginia Department of Labor and Industry’s (“DOLI”) recommendation, the Board agreed that there is no continued need for the Permanent Standard because the virus, “based on emerging scientific and medical evidence, . . . no longer constitute[s] a grave danger to employees in the workplace.”

On February 9, 2022, New York Governor Kathy Hochul announced that she would let the New York mask mandate lapse on its Thursday, February 10, 2022 expiration date. The Governor’s lifting of the statewide rule, which required businesses to either require proof of vaccination or universal masking indoors, does not yet include an end to mandatory masking in schools, despite a slew of action to that effect in neighboring states, including New Jersey, Connecticut, and Massachusetts. California is also allowing statewide masking requirements for businesses and many other indoor public spaces to expire on February 15, 2022.

On 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.

On December 27, 2021, the Centers for Disease Control and Prevention (CDC) announced an update to its isolation and quarantine guidance. Although the CDC’s update shortens both the isolation and quarantine periods, as described more fully below, the changes largely affect only asymptomatic individuals. Moreover, because local guidance may differ from the CDC’s recommendations, employers should keep in mind all applicable state and local requirements when deciding whether to amend their own rules.

On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” Technical Assistance Questions & Answers (the “Guidance”). The most significant change is the addition of a long-awaited discussion of “long COVID,” which other federal agencies had identified as a disability in joint guidance issued back in July.

The Guidance now contains a new Section N, which addresses when COVID-19 can be considered a disability under each of the three standards of the Americans with Disabilities Act (ADA), i.e., “actual disability,” “record of disability,” or “regarded as an individual with a disability.”  Regardless of which definition may apply, the Guidance stresses the usual ADA rubric—that employers must conduct a fact intensive, case-by-case analysis to determine if an applicant or employee with COVID-19 or “long COVID” has a covered disability under the ADA.

The Commissioner of the New York Department of Health has extended the designation of COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to public health under the NY HERO Act until January 15, 2022, at which point the designation will be reviewed. Accordingly, the airborne infectious disease exposure prevention plans required under Section 1 of the Act must be kept in place through that date.

Although the New York State Department of Labor has published guidance stating that it would provide additional guidance by November 1, 2021 on Section 2 of ...

UPDATE: New York State issued FAQs confirming that the mask mandate applies to private businesses and their employees. Employers in office spaces must either require proof of vaccination or impose a mask mandate. Masks must be worn except “when eating, drinking, or alone in an enclosed room.”

As we previously reported, President Biden issued Executive Order 14042 (the Order), which mandated that employees of contractors and subcontractors performing work on federal contracts be fully vaccinated against COVID-19 by January 18, 2022.  Challengers from seven states—Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia (the Plaintiff States)—and various state agencies, filed suit against President Biden and his Administration, seeking injunctive relief against enforcement of the Order.  On December 7, 2021, the United States District Court for the Southern District of Georgia granted the motion and issued a nationwide preliminary injunction against the enforcement of the vaccine mandate.

The Court’s Decision

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.

As we previously reported, the Centers for Medicare and Medicaid Services’ (CMS) interim final rule (“the Rule”) requiring full COVID-19 vaccination for staff and others at Medicare- and Medicaid-certified providers and suppliers (i.e., the “vaccine mandate”) has been challenged in the U.S. District Courts for the Eastern District of Missouri (“the Missouri Court”) and the Western District of Louisiana, Monroe Division (“the Louisiana Court”).  As of the date of this writing, both Courts have granted preliminary injunctions placing the Rule on hold.

On November 29, 2021, the Missouri Court granted a preliminary injunction of the Rule, which applies to the coalition of ten states [1] that filed the challenge there. The following day, the Louisiana Court entered a similar injunction, which applies to the remaining forty states.

The Decisions

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.

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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.

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 ...

On July 13, 2020, the New York City Health Department released a COVID-19 Face Coverings Frequently Asked Questions document (“FAQs”), encouraging anyone in New York City to wear a face covering in any indoor setting that is not their home, even if proper social distancing, i.e., 6 feet of separation, can be maintained.  The recommendation comes as the City continues to reopen and more people are returning to the workplace.

The FAQs reiterate New York State’s requirement (per various Executive Orders) that face coverings be worn at all times when unable to maintain proper social ...