New York HERO Act: COVID-19 Designation as Highly Contagious Communicable Disease Extended Until October 31, 2021

As we previously reported, on September 6, 2021, the New York State Commissioner of Health issued a designation determining COVID-19 to be “a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.”  Such designation triggered requirements on employers to activate their airborne infectious disease exposure prevention plans in accordance with the New York Health and Essential Rights Act (“HERO Act”).

The New York State Department of Labor (“NYDOL”) issued the HERO Act Standards and model plan, which set forth the minimum requirements employers must provide to address exposure to airborne infectious diseases in the workplace.  As explained in our prior blog post, those requirements include:

  • employee health screenings;
  • employee face coverings;
  • personal protective equipment;
  • workplace hand hygiene stations and protocols, which includes adequate break times for employees to wash their hands;
  • cleaning and disinfecting shared equipment and frequently touched surfaces and high-risk areas;
  • social distancing;
  • complying with mandatory or precautionary orders of isolation or quarantine issued to employees;
  • air flow, exhaust ventilation, or other special engineering design requirements;
  • designation of one or more supervisors with the responsibility to ensure compliance with the prevention plan and any applicable federal, state, or local laws, rules, or guidance on preventing the spread of an airborne infectious disease;
  • notice to employees; and
  • verbal review of the infectious disease standard, employer policies, and employee rights under the NY HERO Act.

Employers were required to adopt a model plan Continue reading

California Adds Increased Meal/Rest Period and Workplace Safety Protections for Warehouse Employees Subject to Production Quotas

On September 22, 2021, California became even more labor friendly when Governor Newsom signed AB 701 which adds additional requirements to California’s existing meal and rest breaks rules for non-exempt warehouse employees. Effective January 1, 2022, employers covered by AB 701 must disclose all quotas to warehouse employees that the employee may be subject to.  Employers are subject to a rebuttable presumption of retaliation against employees who are subject to an adverse employment action within 90 days of engaging in protected activity under AB 701.  Employers must make the disclosure to each employee upon hire or within 30 days of the law going into effect.

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Employee Handbooks, Training, and Internal Audits [Webinar Recording]

On September 21, 2021, Aaron R. Gelb and Beeta B. Lashkari presented a webinar regarding Employee Handbooks, Training, and Internal Audits.

While few, if any, employers had time to develop state-of-the-art policies or revamp their training programs in 2020 for matters unrelated to COVID-19, they would be wise to consider taking proactive steps as the world returns to some semblance of normalcy. As employees begin to focus on more mundane matters, they would do well to remember that a well-drafted, up-to-date employee handbook tailored to your organization is an essential element of your compliance program. Effective and engaging training is necessary to communicate your policies and priorities to your employees, and to ensure your managers understand their roles and what is expected of them. A state-of-the-art handbook and top-shelf training will be of little value, however, if your employees and/or managers are not following those policies, it is critical that you conduct compliance audits to ensure your organization is walking the talk.

Participants in this webinar learned: Continue reading

Battle Over Employment Arbitration Agreements In California Continues

By Megan Shaked

The seemingly never ending battle over employment arbitration agreements in California continues with last week’s Ninth Circuit court decision vacating a preliminary injunction over 2019’s California Assembly Bill 51 (previously discussed here and here).

Back in 2019, California Governor Gavin Newsom signed Assembly Bill 51, which added section 432.6 to the California Labor Code and sought to ban new mandatory arbitration agreements to the extent they cover any discrimination claims under the California Fair Employment and Housing Act (FEHA), or any claims under the California Labor Code.  Under this legislation, an applicant or employee could not, as a condition of employment, continued employment or the receipt of any employment-related benefit, be required to waive any right, forum, or procedure under the FEHA or any other specific statute governing employment.  Employers would also be prohibited from threatening, terminating or otherwise retaliating or discriminating against an applicant or employee because of the refusal to consent to a waiver.  Violations of these provisions would constitute unlawful employment practices under the FEHA and would be a misdemeanor.

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Q&As About Fed OSHA’s New COVID-19 Vaccine-Mandate Emergency Rulemaking

By Conn Maciel Carey’s COVID-19 Taskforce

Last Thursday, September 9th, President Biden announced that he is directing OSHA to issue a new Emergency Temporary Standard (ETS) that would require many employers to provide paid time for employees to get and recover from getting vaccinated and to implement “soft” vaccine mandates; i.e., require employees either to be fully vaccinated or get weekly COVID-19 testing, as well as issuing new Executive Orders requiring federal contractors to implement “hard” vaccine mandates.

While we anticipated OSHA would reconsider the need for a broader COVID-19 ETS applicable beyond just the healthcare sector in light of the impact of the Delta variant, President Biden’s decision to use a new ETS focused on vaccinations and testing as a central element of his newly unveiled Path Out of the Pandemic – COVID-19 Action Plan raises a host of challenges for employers across the country.  To help our clients and friends in industry prepare for and navigate this emergency rulemaking, we have prepared an extensive list of Q&As about OSHA’s Emergency Rulemaking for a COVID-19 Vaccine-Mandate ETS.  Also, here are links to an article we prepared summarizing OSHA’s new emergency rulemaking, a recording of the webinar about the ETS we conducted last week, and the slides we used.

We understand from our contacts at OSHA that the agency will move much more quickly to prepare and send this ETS to the White House, so it is imperative that the employer community come together now to identify shared concerns and considerations and begin advocating to OSHA and OMB so that this new ETS is one with which industry can reasonably manage.  To that end, Conn Maciel Carey LLP is organizing a coalition of employers and trade groups to advocate for the most reasonable fed OSHA COVID-19 emergency rule focused on vaccination and testing possible.

For several reasons, we believe this emergency rulemaking may be the OSHA rulemaking that has the most opportunity for industry influence that we can recall.  First, Continue reading

Fed OSHA’s New COVID-19 Vaccine-Mandate Emergency Rulemaking [Webinar Recording]

On Sept. 17, 2021, attorneys from Conn Maciel Carey LLP’s COVID-19 Task Force presented a webinar reviewing OSHA’s new COVID-19 emergency rulemaking focused on vaccine and testing mandates for many US employers.

On Sept. 9th, President Biden revealed a new COVID-19 Action Plan with one of several key goals to “Vaccinate the Unvaccinated.” The most notable aspect of that plan is a directive to federal OSHA to develop a 2nd COVID-19 Emergency Temporary Standard requiring all but small employers in all industries to implement “soft” vaccine mandates; i.e., require employees to either be fully vaccinated or get weekly testing. The President also directed OSHA to include in this new ETS a requirement that employers provide paid time for employees to get vaccinated and recover from ill effects of the vaccine. Separately, the President issued Executive Orders setting “hard” vaccine mandates for federal contractors and healthcare workers.

The President’s announcement was lean on details, and prompted as many questions as it answered. The attorneys from CMC’s OSHA and Employment Law practices discussed our take on the burning questions raised by this latest development on the COVID-19 front: Continue reading

[Webinar] Employee Handbooks, Training, and Internal Audits

On Tuesday, September 21, 2021 at 1 p.m. ET, join Aaron R. Gelb and Beeta B. Lashkari for a webinar regarding Employee Handbooks, Training, and Internal Audits.

While few, if any, employers had time to develop state-of-the-art policies or revamp their training programs in 2020 for matters unrelated to COVID-19, they would be wise to consider taking proactive steps as the world returns to some semblance of normalcy. As employees begin to focus on more mundane matters, they would do well to remember that a well-drafted, up-to-date employee handbook tailored to your organization is an essential element of your  compliance program. Effective and engaging training is necessary to communicate your policies and priorities to your employees, and to ensure your managers understand their roles and what is expected of them. A state-of-the-art handbook and top-shelf training will be of little value, however, if your employees and/or managers are not following those policies, it is critical that you conduct compliance audits to ensure your organization is walking the talk.

Participants in this webinar will learn: Continue reading

Biden’s New COVID-19 Action Plan:  Wage and Hour Issues with Vaccine Mandates

As we advised last week, on September 9, 2021, President Biden issued a new COVID-19 Action Plan that directs federal OSHA to issue a new Emergency Temporary Standard requiring all businesses with 100 or more employees to ensure their workers are either vaccinated or tested once a week.  In response to this Action Plan, we are getting a number of questions from clients relating to various employment-related issues, including a variety of wage and hour issues.  Given that it is a safe assumption that many of you either already have, or will have, similar questions, we thought it would be beneficial to set forth some of the common questions we have received below:

Question 1.  For employees who claim that they cannot receive the vaccine due to religious or medical reasons and thus will need to receive weekly COVID-19 testing, who will be required to pay for that testing? 

Answer:  Biden’s announcement and Action Plan do not say whether it is the employer or employee who is responsible to pay for testing. Thus, we cannot answer this question with absolute certainty.  Nevertheless, there are subtle signals in the language of the Action Plan that appears to indicate the Administration’s intentions to place the cost burden on the employees:

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[Bonus Webinar] Fed OSHA’s 2nd COVID-19 Emergency Temporary Standard: Vaccine and Testing Mandates

Join attorneys from Conn Maciel Carey LLP’s COVID-19 Task Force on Fri., Sept. 17th at 1 PM ET for a webinar reviewing OSHA’s 2nd COVID-19 emergency rulemaking focused on vaccine and testing mandates for many US employers.

On Sept. 9th, Pres. Biden revealed a new COVID-19 Action Plan with one of several key goals to “Vaccinate the Unvaccinated.” The most notable aspect of that plan is a directive to federal OSHA to develop a 2nd COVID-19 Emergency Temporary Standard requiring all but small employers in all industries to implement “soft” vaccine mandates; i.e., require employees to either be fully vaccinated or get weekly testing. The President also directed OSHA to include in this new ETS a requirement that employers provide paid time for employees to get vaccinated and recover from ill effects of the vaccine. Separately, the President issued Executive Orders setting “hard” vaccine mandates for federal contractors and healthcare workers.

The President’s announcement was lean on details, and prompted as many questions as it answered. Join the attorneys from CMC’s OSHA and Employment Law practices to talk through our take on the burning questions raised by this latest development on the COVID-19 front: Continue reading

Federal OSHA to Issue Another COVID-19 Emergency Temporary Standard Setting a “Soft” Vaccine-Mandate

By Conn Maciel Carey’s COVID-19 Taskforce

Yesterday, September 9th, President Biden issued new Executive Orders requiring federal contractors and healthcare employers to implement “hard” vaccine mandates, and directed federal OSHA to issue a new Emergency Temporary Standard that would require many employers to provide paid time for employees to get vaccinated and recover from the vaccine, and to implement “soft” vaccine mandates; i.e., require employees to either be fully vaccinated or get weekly COVID-19 testing.

The push now for a broader COVID-19 ETS applicable beyond just healthcare is a step for which we have been bracing for a while now.  In June, when OSHA issued its COVID-19 ETS that was limited only to the healthcare industry, the vast majority of employers dodged the bullet, but since the explosion of new cases because of the Delta variant, we began to see that bullet more as a boomerang, likely to come back around for the rest of industry.  Here are five signals we picked up that OSHA was likely to revisit its decision in June to limit its COVID-19 ETS to only healthcare employers:

    1. The rate of community transmission and COVID-19 deaths around the country has returned to the level we were experiencing in the Spring of this year when OSHA delivered to OMB a proposed ETS that was written to cover all industries.  To the extent the decline in cases and deaths was a major factor in OSHA’s decision to limit the ETS to just healthcare, that factor no longer cuts in favor of a healthcare-only rule.
    2. Between the time OSHA delivered the broad proposed ETS and the time it issued the narrow healthcare-only ETS, the CDC released groundbreaking guidance relaxing COVID-19 protocols for vaccinated individuals.  OSHA’s decision to limit the ETS to just healthcare only a month later had to be influenced by that seismic shift.  But since that time, in July, CDC backtracked on its guidance for vaccinated workers, causing OSHA to adjust its own guidance in that regard.
    3. Since issuing the ETS for healthcare, OSHA has been under pressure from national unions and worker advocacy groups to expand the ETS to all industries, both in the form of written comments during the ETS’s post-issuance comment period and a lawsuit filed by AFL-CIO challenging OSHA’s decision to limit the ETS to just healthcare.
    4. There has been a growing tension between the Biden Administration and certain Republican governors, particular DeSantis in Florida and Abbott in Texas, around mask and vaccine mandates.  The Biden Administration could resolve that tension by issuing a specific federal OSHA regulation setting requirements for masking and vaccinations, which would likely preempt conflicting state laws.
    5. The White House has changed its tune about strict COVID-19 protocols and vaccine mandates dramatically since the OSHA ETS was issued.  The Administration’s decision to limit the ETS to healthcare only was likely at least partially politically-motivated; i.e., a broad ETS was too unpopular due to the massive decline in COVID-19 cases and deaths.  However, we have started to see President Biden take politically risky moves around vaccinations; e.g., reinstituting mask recommendations for vaccinated individuals and setting a “soft” mandate for federal workers and contractors and encouraging industry to set similar mandates.  If the politics of aggressive COVID-19 requirements influenced OSHA’s decision to issue a narrow rule in June, it appears the Administration has changed its political calculation in the face of the spread of the Delta variant surge.

Those were the main signals we saw that kept us up at night worried OSHA would deliver to OMB a new or amended COVID-19 ETS that would apply to all industries.  But President Biden’s announcements yesterday sent the strongest signal yet that we will soon see further regulatory action from federal OSHA on the COVID-19 front.  A lot of questions remain, and we expect those to be answered in time as the new rules take effect, but we wanted to share with you what we know so far, as well as our preliminary thoughts/speculation about some of those questions.

What Happened Yesterday?

Let’s start with the President’s “Path Out of the Pandemic: POTUS COVID-19 Action Plan.” Continue reading