New York’s amended HERO Act now in effect

Last month, we reported on New York’s passage of the so-called HERO Act, a landmark law that imposes a novel, sweeping overhaul of the State’s workplace health and safety laws. Although the HERO Act was set to take effect on June 4, the State on June 11 amended the law, including to delay its effective date until July 5. The critical changes to the HERO Act are as follows:

  • Updated deadline to adopt a prevention plan – Under the amendment, the New York State Department of Labor (NYSDOL) has until July 5, 2021 to promulgate industry-specific workplace health and safety standards for preventing exposure to airborne infectious diseases, with which all New York employers are required to comply. (The amendment also specifies that the NYSDOL must develop separate standards for (i) industries representing a significant portion of the workforce, or those with unique characteristics requiring distinct standards, as well as (ii) all worksites that are not included in the specific industry standards.)

The amendment further clarifies that, once the NYSDOL publishes the model standards, employers will have 30 days to adopt their own airborne infectious disease exposure prevention plan. Employers can still either directly adopt the model plan or can adopt a plan that meets or exceeds the model plan’s minimum requirements.

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In first-of-its-kind decision, federal court rules that mandatory workplace COVID-19 vaccine policies are lawful

As states and localities lift COVID-19 restrictions, the business community continues to grapple with the interplay between the COVID-19 vaccine and workplace operations. To address this, some U.S. employers have elected to adopt mandatory vaccination policies. These policies, in essence, require that, subject to exceptions for sincerely-held religious beliefs and disabilities, all employees receive the COVID-19 vaccine as a condition of continued employment.

Not entirely surprisingly, there have been a smattering of legal challenges to mandatory COVID-19 vaccination policies across the country. And on June 12, 2021, a federal court in Texas became the first to rule on the permissibility of such policies. In a landmark ruling, the court concluded that mandatory workplace vaccination policies are lawful under Texas and federal law and may be enforced as a condition of continued employment. The court’s specific findings are discussed below. Continue Reading

Connecticut updates its salary history inquiry and pay equity laws

On June 7, 2021, Connecticut Governor Ned Lamont signed legislation amending the state’s existing salary history inquiry and pay equity statutes. As we discuss below, this amendment – which goes into effect on October 1, 2021 – places additional obligations on Connecticut employers and modifies the existing standard for pay equity claims in the state.

Newly required wage range disclosures

Under the newly-adopted measures, Connecticut employers will be barred from engaging in the following actions related to the disclosure of wage ranges:

  • Failing or refusing to provide an applicant for employment the wage range for a position for which the applicant is applying, upon the earliest of (A) the applicant’s request, or (B) prior to or at the time the applicant is made an offer of compensation; and,
  • Failing or refusing to provide an employee the wage range for the employee’s position upon (A) the hiring of the employee, (B) a change in the employee’s position with the employer, or (C) the employee’s first request for a wage range.

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Sonoma County passes emergency paid sick leave ordinance

Background

Sonoma County (the County) initially enacted Ordinance No. 6320 on August 18, 2020 to provide COVID-19 related paid sick leave to employees not covered by the federal Families First Coronavirus Relief Act (FFCRA) in the unincorporated areas of the County. Ordinance No. 6320 expired on December 31, 2020, however, because its expiration date was tied to the FFCRA.  On January 26, 2021, the County extended Ordinance No. 6320 until June 30, 2021.

On February 9, 2021, the County enacted Ordinance No. 6336, which required all employers in the unincorporated areas of the County to allow their employees to use up to 80 hours of any unused paid leave benefits previously furnished to employees in 2020 for various COVID-19 sick purposes and/or for the care of the employee’s immediate family member whose senior care provider or whose school or childcare provider was closed or was unavailable due to COVID-19 reasons.

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New York updates COVID-19 guidelines for office-based workplaces

Last summer, as New York began the process of non-essential business reopenings, the State issued a series of industry-specific workplace health and safety guidelines with which all businesses were and have continued to be required to adhere.  On the heels of recent CDC guidance loosening workplace-related restrictions for vaccinated employees, New York has updated these guidelines for several industries, including most notably for all office-based work in the Empire State. Critically, the new guidelines incorporate the CDC’s guidelines with respect to social distancing, mask wearing, and capacity restrictions.

The new guidelines, which all employers with office-based operations are required to read and affirm, include the following key points:

  • The guidelines confirm that New York employers may accept proof of vaccination status through paper form, digital application, or the State’s Excelsior Pass.
  • New York employers were previously required to ask a detailed set of daily health screening questions to all workplace visitors. Under the newest iteration of the guidelines, however, employers now need only ask whether an individual: (1) is currently experiencing, or recently experienced (in the last 48 hours), any new or worsening COVID-19 symptoms; (2) has had close contact in the past 10 days with any person confirmed by diagnostic test, or suspected based on symptoms, to have COVID-19; and (3) has tested positive through a diagnostic test for COVID-19 in the past 10 days.
    • The guidelines confirm that, since some COVID-19 symptoms may occur with pre-existing medical conditions (such as allergies or migraines, as diagnosed by a health care practitioner), individuals need only answer “yes” as to experiencing symptoms if they are “new or worsening.”
    • In addition, employees who are fully vaccinated or who have, in the last three months, fully recovered from COVID-19 are no longer required to answer the “close contact” screening question.
  • The guidelines confirm that health screenings may be performed via signage, at point of entry, by e-mail/website, by telephone, or by electronic survey before individuals enter the establishment.
  • The guidelines repeal the requirement that employers maintain a close contact log. Previously, employers were required to maintain a log of every person, including employees and visitors, who may have had close or proximate contact with other individuals at the worksite or area.  Now, keeping such a log is recommended “[t]o the extent possible.”
  • Following CDC guidance, fully vaccinated individuals are no longer required to wear face coverings or social distance, however, individuals who are unvaccinated or whose vaccination status is unclear must continue to do so. The guidelines provide employers with some “discretion” on implementing these standards, although the specifics of what is discretionary are not entirely settled.

All New York employers with office-based operations should review the updated guidelines in full, affirm their compliance with same on the New York Forward website, and update their business safety plans accordingly.

If you have any questions or concerns about these updated guidelines or how they affect your company, Reed Smith’s experienced Labor & Employment Group is ready to speak with you.

New York State Department of Labor confirms that New York State paid sick leave applies to COVID-19 vaccine recovery time

As we previously reported, over the past year, New York State has adopted a statewide sick leave law, paid leave for COVID-19 vaccination, and paid quarantine leave.  Last week, the New York State Department of Labor (NYSDOL) issued guidance on the use of New York State Sick Leave (NYSSL) as it pertains to employees receiving the COVID-19 vaccine.

Critically, this guidance states that “employers are obligated to honor the employee’s desire to use accrued sick leave for the recovery of any side effects of the COVID-19 vaccination.”  Practically speaking, this means that COVID-19 vaccine side effects are a qualifying reason for an employee to use NYSSL.  In light of this guidance, New York employers should ensure that employees who obtain the COVID-19 vaccine receive appropriate time off for both receiving the vaccine and recovering from any vaccine side effects.

If you have any questions or concerns about this guidance or how it affects your company, Reed Smith’s experienced Labor & Employment Group is ready to speak with you.

Virginia adopts new laws effective July 1 that continue to transform the employment landscape

Following last year’s wave of new employment laws (previously covered as follows: Part 1, Part 2, and Part 3), Virginia has adopted a variety of new laws that will take effect July 1 and continue to transform the Commonwealth’s employment law landscape. Virginia employers should carefully review these new laws to ensure compliance in this changing environment and in light of newly expanded enforcement mechanisms.

Minimum wage increase

While Virginia adopted incremental increases to the minimum wage set to reach $15 per hour by 2026, the first step-increase was delayed due to the pandemic. Effective May 1, 2021, the minimum wage increased to $9.50 per hour and is set to increase again effective January 1, 2022.  The Virginia Department of Labor and Industry (DOLI) has issued a minimum wage guide for employers that includes an optional workplace posting announcing this increase.

The Virginia Overtime Wage Act

Governor Ralph Northam signed the Virginia Overtime Wage Act, which will take effect on July 1, 2021 and now provides overtime protections for employees under state law (previously overtime protections were only under federal law). While the new law incorporates the exemptions from overtime under the federal Fair Labor Standards Act (FLSA) and purports to graft the FLSA’s overtime protections into state law, there are several notable differences between the FLSA and Virginia’s new law.

Unlike the FLSA, Virginia’s new law (i) establishes a three-year statute of limitations thereby allowing recovery of up to three years of back wages, unlike the FLSA’s typical 2-year lookback; (ii) does not provide for any good faith defense for employers; and (iii) forecloses an employer from using the fluctuating workweek method or from paying a fixed amount to cover straight time wages for all hours worked. Accordingly, non-exempt employees paid a salary or on some other non-hourly basis are entitled to overtime for any hours worked over 40 at “one and one-half times” a regular rate of 1/40th of all wages paid for that workweek.  Also unlike the FLSA, the new law’s definition of “employer” includes derivative carriers within the meaning of the federal Railway Labor Act. Unlike prior Virginia law, the new law provides for a private right of action under Virginia’s wage payment statute (with enhanced remedies enacted last year). Continue Reading

Is that a smile that I see? Pennsylvania businesses adjust reopening plans as the statewide mask mandate is scheduled to be lifted

On May 27, 2021, Pennsylvania Acting Health Secretary Alison Beam announced at a press conference that Pennsylvania’s statewide masking order is slated to be lifted in its entirety effective June 28, 2021. This announcement comes on the heels of the Wolf Administration’s May 4, 2021 announcement that all COVID mitigation orders in Pennsylvania would be lifted effective May 31, 2021, except for the masking order. The May 27 announcement reflects a change of course that sets a firm expiration on the masking requirements, regardless of the Commonwealth’s vaccination rate at that time.

Pennsylvania’s masking order, which was amended March 17, 2021, incorporates by reference the CDC’s Guidance for Fully Vaccinated People under its exceptions from the statewide masking requirements. As such, the masking requirements under the order were effectively lifted for those who have been fully vaccinated (except for in certain limited circumstances, pursuant to CDC guidance), but still applied to those who were not fully vaccinated. At the May 27 press conference, Acting Health Secretary Beam stated that, even once the statewide masking order is lifted, Pennsylvania should continue to follow CDC guidance for wearing a mask. However, the lifting of the masking order indicates that such compliance will be recommended, but not required under state order. That certainly is an important point for which Pennsylvania employers will seek clarity as they eagerly take steps towards returning their workforce to the workplace. Continue Reading

New Jersey expands COVID changes to include employers not open to the public

As previously discussed, on May 24, 2021, New Jersey Governor Phil Murphy announced the lifting of COVID-19 mask requirements for certain employers, while continuing to require masks for others. In a point of frustration for many New Jersey employers, the requirements seemed to require masking and social distancing in an inconsistent manner, and imposed greater restrictions on employers that are not open to the public.

Governor Murphy revisited this decision shortly after, issuing Executive Order No. 243 (EO 243), providing much-anticipated changes and guidance for the rest of New Jersey’s employers.

Under EO 243, the following changes will take effect on June 4, 2021:

  1. Fully vaccinated employees, who have verified their vaccination status, can work without masks or social distancing. Importantly, employers must continue to require masks and social distancing for any employees who are not fully vaccinated and where the employees’ vaccination status cannot be confirmed.
  2. Employers can permit visitors to enter the worksite without masks or social distancing, regardless of vaccination status.
  3. Employers can require employees to report to the office. Effective June 4, Paragraphs 10 and 11 of Executive Order 107, which mandated employers to accommodate remote work wherever possible, are rescinded. For the first time since the start of the pandemic, employers are free to require their remote-capable employees to physically report to work.

All other workplace safety requirements set forth in Executive Order 192 remain in effect, including daily health checks. While employers are now free to adopt policies eliminating masks and social distancing, consistent with the above, they may also choose to keep mask and social distancing requirements in place. Employers cannot prohibit masks, nor can they retaliate against any employee for wearing a mask.

Employers should also be mindful that they might still need to provide accommodations, including remote work accommodations in appropriate cases, for medical and/or religious reasons.

If you have any questions about these new changes, or require assistance in any issues with your workforce, Reed Smith’s experienced Labor & Employment attorneys are available to assist.

NJ employers ready to ditch the masks? Not so fast.

UPDATE: On May 26, 2021, Governor Murphy announced that he will be signing another Executive Order, effective Friday, June 4, 2021, that will: (1) Allow employers to implement policies for vaccinated employees to forego masking & social distancing; and (2) Rescind the requirement for mandatory remote work arrangements.  We will provide further guidance on these changes when the Executive Order is issued.

On May 24, 2021, New Jersey Governor Phil Murphy announced that he is lifting the indoor mask mandate in most circumstances effective May 28, 2021. Many New Jersey employers interpreted this to mean that they may choose to eliminate mask requirements in their workplaces beginning this Friday. However, the issuance of Executive Order No. 242 (EO 242) proved to be much narrower when it comes to many employers. The Executive Order lifts the mask mandate for “indoor public spaces,” however, “indoor public spaces” explicitly does not include “indoor work spaces of employers, as defined in Executive Order No. 192 (2020) (EO 192), that do not open their indoor spaces to the public for purposes of sale of goods, attendance at an event or activity, or the provision of services.” In other words, EO 242 only lifts the mask mandate for employers that are open to the public.

The Order goes on to explicitly preserve all of the requirements in EO 192 for indoor workspaces not open to the public (the requirements of EO 192 are discussed in detail here). This includes social distancing, face coverings, and daily health screenings – all regardless of vaccination status. Given Governor Murphy’s comments during the press conference, in which he noted that New Jerseyans are traveling out of state to eat or shop without a mask, the move seems to be aimed only at countering this economic impact. The change appears illogical to many, as vaccinated employees at an employer not open to the public must wear a mask, while an unvaccinated employee at an employer open to the public can work without a mask.

The Governor’s Order reserved the right of owners of businesses open to the public to impose their own mask requirements and no entity can implement a rule that prohibits mask wearing.

In a point of frustration for many New Jersey employers, the Executive Order also does nothing to rescind or loosen the requirement of Executive Order No. 107 (reaffirmed in EO 192) that employers must accommodate remote-capable employees with telework arrangements wherever practical. Hopefully, New Jersey will address these issues in the coming weeks, but for now, employers who operate non-public workplaces must continue the status quo.

Reed Smith’s Labor & Employment team will continue to monitor these changes and provide updates as they are available. If you have any questions in the meantime, Reed Smith’s attorneys are available to assist.

 

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