On September 24, 2021, the Safer Federal Workforce Task Force issued guidance for federal contractors and subcontractors concerning various safety protocols (the Guidance) as required by President Biden’s Path Out of the Pandemic and Executive Order 14042 (the Order). The stated purpose of the safeguards set forth in the Guidance are to decrease the spread of COVID-19, which will decrease worker absences, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal Government.

As a threshold matter, the Order does not apply to all federal contractors. Specifically, the Order applies to contracts for services, construction, or leasehold interest in property; services covered by the Service Contract Labor Standards; concessions; and work relating to federal property lands and related to offering services for federal employees, their dependents, or the general public. The Order specifically excludes grants, contracts or contract-like instruments with Indian Tribes, contracts with a value equal to or less than the FAR simplified acquisition threshold (currently $250,000), employees performing work outside the United States, and subcontracts solely for the provision of products. However, the Guidance also strongly encourages agencies to incorporate clauses requiring compliance with the Order into contractors that are not covered or directly addressed by the Order.

Further, the requirements apply only to a covered contract, which is defined as one that includes a provision that the contractor will “comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.” Stated differently, simply being a federal contractor does not mean all employees must be vaccinated by the deadline.  Instead, the requirements apply to any new solicitations issued on or after October 15, 2021, the option to extend an existing contract on or after October 15, 2021, and new federal contracts awarded on or after November 15, 2021. However, agencies are again strongly encouraged to incorporate a clause requiring compliance with the Order into existing contracts and contract-like instruments prior to the date upon which the Order requires inclusion of the clause.Continue Reading Federal contractors and subcontractors receive guidance on President Biden’s vaccine mandate, including December 8, 2021 compliance date

Earlier this year, New York lawmakers passed a novel, sweeping overhaul of the State’s workplace health and safety laws. Known as the HERO Act, the law is intended to “to protect employees against exposure and disease during a future airborne infectious disease outbreak.”

Among other things, the HERO Act requires that the New York State Department of Labor (NYSDOL) create written model airborne infectious disease exposure prevention standards to cover Empire State workplaces. More particularly, the NYSDOL is tasked with creating separate model 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 NYSDOL’s publication of the model standards is important for a host of reasons, including because all New York employers – regardless of size, industry, or location – will then have 30 days from the date on which the NYSDOL publishes the model written standards, to establish their own airborne infectious disease exposure plan. This requirement can be satisfied by adopting the NYSDOL’s model standards (as applicable based on industry), which it is expected that many, if not most, New York employers will do. (The requirement can also be satisfied by instead adopting an alternative plan that meets or exceeds the NYSDOL’s standards.)

To that end, earlier today, the NYSDOL, in consultation with the New York State Department of Health, issued the long-awaited Airborne Infectious Disease Exposure Prevention Standard, Model Airborne Infectious Disease Exposure Prevention Plan, and various industry-specific model plans for the prevention of airborne infectious disease. The specific industries covered are agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail. All of the materials can be accessed here.Continue Reading BREAKING: New York Labor Department unveils guidance on HERO Act, starting the clock for all Empire State employers to adopt airborne infectious disease exposure plans

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.Continue Reading New York’s amended HERO Act now in effect

Well, that was fast! As we reported on Tuesday, the New York State legislature passed a sweeping bill in late April known as the HERO Act. The HERO Act represents a massive change to the Empire State’s workplace health and safety protocols.

At the time of our initial post, the HERO Act was awaiting Governor Andrew Cuomo’s signature. That signature came late Wednesday. Notably, however, the Governor has asked the legislature to make certain technical changes to the law, including giving the New York State Department of Labor and employers more specific instructions in developing and implementing the workplace standards required by the HERO Act. In addition, Governor Cuomo has asked that lawmakers add a requirement for employers to cure violations in order to better protect the safety of workers and limit claims by employees for violations, in limited circumstances where employers are acting in bad faith and failing to cure deficiencies.Continue Reading New York’s landmark HERO Act becomes law – With some caveats

In late April, New York State legislators passed a bill that can best be described as a “game changer.” Known as the Health and Essential Rights – or HERO – Act, the bill proposes a novel, sweeping overhaul of the Empire State’s workplace health and safety laws. Among other things, the HERO Act directs New York State Department of Labor (NYSDOL) to create minimum workplace safety standards, requires all New York business to adopt airborne infectious disease exposure plans, and authorizes the creation of joint labor-management workplace safety committees within every company.

The bill now heads to Governor Andrew Cuomo’s desk, where it is expected to be signed in the near term. Below we will outline the key provisions of the HERO Act.
Continue Reading New York legislators pass sweeping new workplace health and safety bill

At a union event on Labor Day in 2020, President Biden vowed to be “the strongest labor president you have ever had.”  Although he has only been in office a short time, his administration is already taking steps to honor that pledge.  Specifically, on February 4, 2021, House and Senate Democrats introduced the Protecting the Right to Organize (PRO) Act.   The PRO Act previously passed the House in February 2020 and President Biden has committed to sign it into law if passed in this Congress.  If enacted, the PRO Act will fundamentally reshape the American workplace.
Continue Reading Labor law under the Biden administration: A preview of the PRO Act

Federal law, as well as many state and local laws, require employers to display notices and posters in the workplace advising employees of their rights.  With many employers operating remotely due to COVID-19, however, questions regarding these statutory posting requirements have arisen.  In response, on December 29, 2020, the United States Department of Labor released guidance addressing the permissibility of providing the required postings through electronic means.

By way of background, no less than 15 federal laws, including the Fair Labor Standards Act, the Family and Medical Leave Act, and the Employee Polygraph Protection Act, require employers to display notices or posters in the workplace advising workers of their rights under such laws.  Generally speaking, the notices or posters must be physically displayed in a conspicuous location that can be easily accessed by all employees (break rooms and cafeterias, for instance, are common locations for this).
Continue Reading Pandemic or not, employers must still comply with notice-posting requirements under federal law

Earlier this year, the U.S. Department of Labor (DOL) issued a rule updating its interpretation of the “joint employer” doctrine under federal wage and hour law.  Yesterday, however, a New York federal judge struck down a significant portion of the rule.  Judge Gregory H. Woods’ 62-page decision delivers a significant blow to businesses that had relied on the business-friendly nature of the DOL’s new rule.

By way of background, the joint employment doctrine refers to a situation where a worker is deemed employed by more than one entity at the same time.  If multiple entities are considered joint employers, they can then generally each be held jointly and severally liable for workplace violations (e.g., discrimination, harassment, retaliation, unpaid wages).
Continue Reading New York federal judge nixes U.S. Department of Labor’s new “joint employer” rule

The National Labor Relations Board (the “Board”) issued a decision on July 21, 2020, which will aid employers in their ability to discipline or discharge an employee who engaged in abusive or offensive conduct in connection with protected concerted activity. In General Motors LLC, 369 NLRB No. 127 (2020), the Board modified its standard for determining under what circumstances profane language or sexually or racially offensive speech loses the protection of the National Labor Relations Act (the “Act”).

Before today, there were several circumstance-specific standards used by the Board in determining whether an employee was lawfully disciplined or discharged when they made profane, racist or sexually harassing comments in connection with Section 7 activity. There was one standard for workplace confrontations with supervisors or managers as applied in Atlantic Steel. A second standard was used for examining social media posts and most other  interactions between employees, referred to as the “totality of circumstances.”  Still, another standard was used when offensive statements or conduct occurred on the picket line, as set forth in Clear Pine Mouldings. All of these standards assumed that the employee’s Section 7 activity was inseparable from the abusive comments and conduct. Additionally, in many circumstances the outcome of those cases conflicted widely with an employer’s obligations under federal, state and local discrimination laws.Continue Reading NLRB ends long-time standard which protected obscene, racist and sexually harassing speech in connection with Section 7 activity

Several labor organizations, along with racial and social justice organizations, conducted a mass walkout on July 20, 2020 to protest racial inequality and working conditions in the United States.  Thousands of workers in more than 200 cities walked off the job on a full-day strike while others who were unable to strike for a full day walked out about for eight minutes.  According to the Strike for Black Lives website, the purpose of the strike was to demand higher wages, better jobs, the right to unionize, and healthcare for all.  These organizations specifically call for corporations to address racism in the workplace, raise wages, provide healthcare, and provide ample personal protective equipment (PPE), among other things.

These types of mass walkouts raise several considerations for employers as they attempt to balance their support for racial and social justice with their tolerance of competing views and their need to maintain operations.  While some employers may allow their employees to participate with little to no disruption to their operations, others, such as hospitals, will have to find ways to continue to run their operations (perhaps by hiring temporary workers) if they find themselves with reduced staff.  Other employers may be forced to temporarily close or take other measures to manage the sudden loss of available employees.
Continue Reading Responding to employee advocacy and workplace walkouts during times of protest