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;
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.
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.
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.
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.
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 →
On the heels of Donohue v. AMN Services, LLC recognizing a rebuttal presumption of meal period violations based on the employer’s time records alone – as discussed in our prior blog post – the California Supreme Court has, in another blow to employers, ruled that the premium pay required where the employer does not provide meal, rest or recovery periods is not based on the hourly rate of pay (as had previously been understood). In essence, the California Supreme Court has found that the “rate of compensation” for the purpose of determining the additional hour of pay due to employees who are not provided meal, rest or recovery periods is synonymous with the overtime rate of pay and must include all nondiscretionary payments, not just hourly rates.
On Labor Day, the New York State Commissioner of Health designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to public health. Under the New York HERO Act, employers must either adopt the New York State Department of Labor’s (“NYDOL”) model prevention plan or develop and establish an alternative prevention plan that equals or exceeds the requirements in the NYDOL’s model plan.
The 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, on July 7, 2021. As explained in our prior blog post, those requirements include:
Earlier this week, on August 23, 2021, the U.S. Food and Drug Administration fully approved the Pfizer-BioNTech COVID-19 vaccine. Earlier this year, many employers were hesitant to issue vaccine mandates and expressed concerns about potential legal risks associated with such a mandate since the COVID-19 vaccines were only approved for emergency use. While the full approval designation may not change the legal landscape as it relates to vaccine mandates, many employers may feel more comfortable imposing such mandates.
As explained in our prior blog, employers can mandate employee vaccinations under federal law. The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance several months ago stating that employers generally can mandate COVID-19 vaccinations for employees who physically enter the workplace without running afoul of the federal anti-discrimination laws it enforces. The U.S. Department of Justice (DOJ) also issued a slip opinion on July 6, 2021, regarding vaccination mandates and the emergency use authorization status of the vaccines:
We conclude that section 564(e)(1)(A)(ii)(III) concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs.
Disciplining employees, a critical tool in enforcing workplace rules, has the potential to create problems, especially when relationships deteriorate and emotions run high. Even in situations where an employer is disciplining for the right reason, if it is handled incorrectly, a costly lawsuit or labor grievance could result. Employers, however, cannot ignore misconduct and/or poor performance that negatively impacts productivity, employee morale, workplace culture, or the organization’s ability to meet key goals. Consistent employee discipline can also benefit employers in litigation, union grievances, and inspections and investigations by the EEOC and OSHA.
This webinar will give you a blueprint to lawfully discipline employee and mitigate the risk of future litigation. Participants in this webinar will learn about: Continue reading →
Happy anniversary to the Americans with Disabilities Act (ADA) which turns thirty-one this year. To celebrate its anniversary President Biden is “bringing agencies together to make sure Americans with long COVID, who have a disability, have access to the rights and resources that are due under the disability law.” According to President Biden, this “includes accommodations and services in the workplace, in school, and our health care system so they can live their lives in dignity and get the support they need as they continue to navigate these challenges.” The Department of Health and Human Services (HHS) jointly with the Department of Justice (DOJ), as well as the departments of Education and Labor, have released guidance explaining that long COVID can be a disability under various federal civil rights laws, including the ADA.
“Long COVID.” “Long-haul COVID.” “Post-acute COVID-19.” “Long-term effects of COVID.” “Chronic COVID.” For clarity, all of these terms refer to new or ongoing symptoms experienced by some people after first being infected with COVID-19 and they are generally referred to as COVID long-haulers. Approximately 30% of COVID positive patients are COVID long-haulers and reported continued symptoms as long as nine months after their initial confirmed positive, according to a study published in JAMA Network Open in February. According to the CDC, symptoms may occur regardless of the severity of the COVID illness and include difficulty breathing or shortness of breath, fatigue, sleeping problems, fevers, gastrointestinal issues, anxiety and depression, dizziness on standing, and “brain fog.” Some people who had severe COVID-illness may experience multiorgan effects or autoimmune conditions over a longer time with symptoms lasting weeks or months after COVID-19 illness. Finally, some who were hospitalized as a result of their COVID illness may suffer health effects during their recovery like severe weakness and exhaustion.