New York enacts sweeping expansion of state’s whistleblower law

Although New York has had an employment-related whistleblower statute for decades, many employers may not have been aware of it. That is because the statute itself – N.Y. Labor Law section 740 – has been fairly limited in its scope and application. Indeed, it has only protected employees who disclose employer activity that violates laws relating to public health and safety or to health care fraud. Disclosures of other unlawful activities have not been protected by section 740.

That will no longer be the case, however, starting next year. Late last month, New York Governor Kathy Hochul signed a bill that will amend and effectively overhaul section 740. The amended law, which is scheduled to take effect on January 26, 2022, drastically expands the breadth and scope of section 740 by making it significantly easier for New York workers to bring a claim, lengthening the statute of limitations, and imposing a notice requirement on employers.

Overview of key updates to section 740

  • Independent contractors can bring claims too: As a starting point, under the amended law, not only will current and former employees be able to assert legal claims against the employer, but so too will independent contractors.
  • Broad expansion of protected activity: Perhaps the most noteworthy aspect of the amendment is how it expands the types of employee activities that are protected under section 740 of the Labor Law.

Previously, section 740 was a narrow statute that primarily barred employers from taking retaliatory action against employees only where the employee had disclosed or threatened to disclose to a supervisor or public body, or had objected to or refused to participate in “an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud.” The prior version of the law thus required that an actual legal violation have occurred – i.e., an employee’s reasonable belief that a violation had occurred was insufficient – and was intended to curb only activities that posed a substantial and specific danger to public health or safety or that constituted health care fraud.

The amended statute, however, broadly expands this scope of protected activity. Specifically, the law now bars employers from taking retaliatory action where the employee discloses or threatens to disclose to a supervisor or public body, or objects to or refuses to participate in “an activity that the employee reasonably believes is in violation of law, rule or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.” The new definition, therefore, essentially protects, and bars employers from retaliating against, workers who report any actual, or reasonably perceived by the employee, violation of any law, rule, regulation, executive order, or judicial or administrative decision, ruling, or order at all, regarding of its subject matter. To say that this is a dramatic expansion of Section 740 would be an understatement.

Continue Reading

New York confirms that paid leave for COVID-19 vaccination may be used for booster shots

As we previously reported, earlier this year New York lawmakers passed a law requiring that all Empire State employers provide their employees with up to four hours of paid time off to receive the COVID-19 vaccine. Shortly thereafter, the New York State Department of Labor (NYSDOL) published guidance on the measure, clarifying that: (i) the leave is only available for an employee’s own receipt of the COVID-19 vaccine; (ii) the leave must be paid at an employee’s regular rate of pay; and (iii) the law does not permit employers to substitute other existing leave options available to the employee, including New York State Paid Sick Leave.

Just recently, however, the NYSDOL revised its guidance to confirm that, even though the CDC has not yet incorporated booster shots into its definition of “fully vaccinated” against COVID-19, paid COVID-19 vaccination leave nevertheless “applies to any COVID-19 vaccination received by an employee, including booster shots.” New York employers should immediately update any COVID-related paid sick leave policies to reflect this change.

We will continue to monitor employer obligations and vaccine updates related to COVID-19 in New York. If you have any questions about how these measures impact your workforce, Reed Smith’s experienced Labor & Employment Group is ready to speak with you.

OSHA issues COVID-19 ETS for large private employers

Update – On November 6, 2021 the Fifth Circuit Court of Appeals issued a temporary stay of the ETS.

On November 4, 2021, OSHA issued an unpublished version of its long-awaited Emergency Temporary Standard (ETS) as to COVID-19 vaccination or testing requirements covering most private employers with 100 or more employees. The ETS is scheduled to be published and take effect on November 5, 2021. As summarized below, the ETS requires covered employers to establish either (1) a mandatory vaccination policy requiring that all covered employees be fully vaccinated against COVID-19, or (2) a vaccination policy that requires that employees choose between being fully vaccinated or submitting to regular and recurring COVID-19 testing. It should be noted that these are “minimum” requirements, such that employers are not prohibited from establishing more stringent policies, and do not supplant the requirements of a collective bargaining agreement.

Effective date

Employers will have 30 days, or until December 5, 2021, to comply with all non-testing requirements of the ETS, and 60 days, or until January 4, 2022, to comply with testing requirements for employees who have not received all doses required for primary vaccination. Under the Occupational Safety and Health Act (OSH Act), an ETS serves as a proposal for a permanent standard, and the OSH Act calls for the permanent standard to be finalized within six months after publication of the ETS (29 U.S.C. 655(c)(3)).

Covered employers

For purposes of the ETS, a covered employer is one with 100 or more employees “at any time” during the effective period of the ETS. This means that employers who meet this minimum threshold as of the effective date of the ETS are covered throughout the effective time of the ETS, even if the employer later falls under the minimum employee threshold. For any employer that falls short of 100 employees as of the effective date but reaches the threshold at any point that the ETS is in effect, the employer will become subject to the ETS requirements as of the date they meet the threshold and remain covered for the remaining duration of the ETS, even if the employer later reduces staff such that it falls under the threshold. To calculate the number of employees, all part-time and full-time employees must be accounted for, regardless of where they work (including those that work at home). However, independent contractors are not included in the calculation. Also, employees supplied to a customer site by staffing companies only count toward the staffing company’s employee total; they do not count toward the customer company’s total. Similarly, as to franchisee-franchisor relationships, their respective employees count only toward their own calculation, not the other party’s employee count (i.e., a franchisee’s employees count only toward the franchisee’s calculation, and not the franchisor’s count). The ETS excludes: (1) Employers that are covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; and (2) certain settings where any employee provides healthcare services or healthcare support services.

Excluded employees

The ETS specifies that the requirements apply only to employees who visit an employer’s indoor locations where other people are present. Employees who work exclusively at home, outdoors, or at a site where the employee is the only person present are not required to comply with the employer’s requirements. However, should such an employee later be required to, or seek to, visit one of the employer’s indoor facilities, the employee must satisfy the vaccination or testing requirements.

Reasonable accommodations/Exceptions to policy

The ETS requires employers to provide reasonable accommodations and exceptions for employees (i) for whom the vaccine is medically contraindicated; (ii) for whom medical necessity requires a delay in vaccination; or (iii) who are entitled to a reasonable accommodation due to a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

As to the vaccination requirements, the employer is required to provide an employee with time to obtain and recover from a vaccination. Specifically, the employer must provide up to four hours of paid time, inclusive of travel time, at the employee’s regular pay rate, to obtain a vaccine. The employer must also provide reasonable paid time off to recover from any side effects of each dose of a vaccine. Continue Reading

California expands restrictions on non-disclosure provisions

On October 10, 2021, California Governor Gavin Newsom approved Senate Bill 331 which, effective January 1, 2022, significantly expands restrictions relating to non-disclosure and non-disparagement provisions in many settlement and separation agreements.

First, Senate Bill 331 expands the existing prohibitions on non-disclosure and non-disparagement provisions in settlement agreements. Existing law, under section 1001 of the California Code of Civil Procedure, already prohibits settlement agreements from having non-disclosure or non-disparagement provisions that prevent the disclosure of facts relating to a claim filed in a civil or administrative action regarding sex-based claims, including sex-based discrimination, sexual harassment, or related retaliation. Effective January 1, 2022, this amendment expands the prohibition on non-disclosure and non-disparagement provisions that prevent the disclosure of facts relating to a claim, outside of sex-based claims, to include discrimination, harassment, or retaliation claims based on any protected category under section 12940 of the Government Code, such as race, religion, national origin, and disability. Continue Reading

EEOC issues guidance on religious objections to COVID-19 vaccine mandates

As we discussed here, employers who have implemented mandatory vaccine policies – either by choice or by government mandate – have seen a significant uptick in religious accommodation requests. As a result, on October 25, 2021, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding employers’ obligations under federal anti-discrimination law when an employee objects to a mandatory COVID-19 vaccine policy on religious grounds. The guidance can be accessed here.

Other than expressly discussing religious accommodations in the context of vaccine mandates, the EEOC’s latest guidance does not break much new ground. The guidance nevertheless reiterates the following key considerations for employers when assessing religious objections to vaccine mandates:

  • Employee notification: The EEOC states that employees “must tell their employer if they are requesting an exception” to a vaccine mandate due to “their sincerely held religious beliefs, practices or observances.” But employees do not have to use any “magic words” (such as using the phrase “reasonable accommodation” or “Title VII”) to request a religious accommodation. The EEOC recommends employers provide employees and applicants with information about whom to contact and any procedures that must be followed to request a religious accommodation.
  • Sincerity of asserted religious belief: The EEOC states that under Title VII, an employer should generally assume that a request for religious accommodation is based on sincerely held religious beliefs. If, however, the employer has an “objective basis” to question either the religious nature or sincerity of a particular belief, the employer may ask follow-up questions and request additional supporting information. The employer may also ask for clarification or an explanation of how the employee’s religious belief conflicts with a COVID-19 vaccine mandate.
  • Assessing undue hardship: According to the EEOC, Title VII does not require an employer to provide the requested accommodation if it would create an “undue hardship.” Requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate the religious belief would constitute an undue hardship.  The EEOC lists some factors employers can consider when making this assessment:
    • Whether the employee requesting a religious accommodation to a vaccine mandate works outdoors or indoors
    • Whether the employee works in a solitary or group work setting, or has close contact with other employees or members of the public
    • The number of employees who are seeking a similar accommodation
  • Accommodating one does not require accommodating all: The EEOC states that employers should address requests on a case-by-case basis. Assessing whether a requested accommodation imposes an undue hardship depends on the specific factual context. The type of workplace, employee’s duties, number of employees in close proximity, and level of interaction with the public may differ between jobs. The employer may also consider the cumulative cost or burden of granting the requested accommodation to multiple employees.
  • Employers may provide an alternative accommodation: The EEOC reminds employers that they can consider other “possible alternatives” when evaluating whether the requested accommodation would impose an undue hardship. If more than one accommodation would eliminate the religious conflict, the employer may choose which one to provide.
  • Circumstances can change: The EEOC states that “an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer due to changed circumstances.” But, the EEOC recommends that the employer should discuss its concerns about continuing a religious accommodation with the employee before revoking it, and consider other possible accommodations.

In sum, the guidance tracks our previous discussion regarding requests for religious exemptions from vaccine mandates. We will continue to keep you abreast of further developments in workplace law arising from the ongoing COVID-19 pandemic.

If you have any questions regarding mandatory vaccination policies or need guidance in dealing with accommodation requests or any other workplace issues, Reed Smith’s experienced Labor and Employment Group stands ready to speak with you.

Menopause in the workplace

Despite menopause being a natural part of the ageing process, there is a general lack of awareness of its symptoms and effects, often resulting in menopausal women* experiencing a lack of support, as well as discrimination and harassment. This blog looks at the legal issues, and what employers can and ought to be doing to create a supportive and empathetic workplace culture.

Some of these issues were highlighted in a recent Employment Appeal Tribunal (EAT) decision, Rooney v. Leicester City Council, which was handed down shortly ahead of World Menopause Day on 18 October 2021. This case acts as a timely reminder of the challenges that menopausal women face in the workplace and the fact that more can be done to raise and demonstrate understanding and awareness of what remains a taboo subject.

Mrs Rooney was a childcare social worker for Leicester City Council until she resigned from her post. She brought a number of claims against her employer, including a claim for disability discrimination, relying on menopause as her disability. She cited symptoms including insomnia, fatigue, light-headedness, confusion, stress, depression, anxiety, palpitations, memory loss, joint pain, migraines and hot flushes that left her physically and mentally unable to cope over a couple of years, and having to spend prolonged periods in bed. She received hormone replacement therapy and was under the care of a specialist menopause clinic. Continue Reading

Texas executive order restricts mandatory vaccination policies for employers

Most Texas employers are likely already familiar with Texas Governor Greg Abbott’s Executive Order GA-39 that prohibits state and local governments from requiring (1) individuals to receive a COVID-19 vaccine, or (2) documentation proving vaccine status (that is, “vaccine passports”) as a condition to receive any service or enter any place.

Building upon Executive Order GA-39, on October 11, 2021, Governor Abbott issued Executive Order GA-40 (the Texas EO), which prohibits private employers in Texas from requiring that employees receive a COVID-19 vaccination. Specifically, the Texas EO prohibits any Texas entity from “compel[ling] receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” Texas entities that violate the Texas EO can be fined up to $1,000 (it is unclear whether the fine will be per violation). The Texas EO does not create any private cause of action, nor does it call for retroactive application.

The Texas EO creates three bases for employees to object to vaccination: (1) personal conscience; (2) religious belief; and (3) medical reasons. The Texas EO also specifically states that prior recovery from COVID-19 is a valid basis for an individual to object to a COVID-19 vaccine. The objections permitted under the Texas EO go far beyond the religious and medical exemptions to vaccine mandates under Title VII of the Civil Rights Act and the Americans with Disabilities Act, respectively. Moreover, the Texas EO does not contain an undue burden exception or mention any other grounds that would permit an employer to deny an employee’s objection to a mandatory COVID-19 vaccine that is made under the three bases in the Texas EO.

Continue Reading

California employment law legislative updates: What’s new in the Golden State

It’s that time of the year again! The deadline for California Governor Gavin Newsom to sign, approve without signing, or veto bills on his desk was October 10, 2021. Now that the dust has settled, we have compiled a comprehensive list of bills signed by the governor that will impact employers. We also highlight bills that the governor vetoed but that employers should keep on their radars in case they make a comeback.

Employers should consider reviewing these new laws to determine whether they need to revise their policies and practices to ensure they are compliant and to make sure they are not caught off guard. These new laws go into effect on January 1, 2022, with the exception of Assembly Bill 654 dealing with COVID-19 outbreak reporting and Assembly Bill 73 dealing with employee protections from wildfire smoke, both of which went into effect immediately upon signing.

New Jersey expands protections for older workers

On October 5, 2021, Governor Phil Murphy signed legislation (A681) amending the New Jersey Law Against Discrimination (NJLAD) to expand protections for the state’s older workers. While the NJLAD already prohibited age discrimination, it contained an exception permitting employers to decide not to hire or promote workers over 70 based on their age. The new amendments remove this exception to the law. In addition, the amendments remove a provision that permits higher education institutions to require tenured professors to retire at 70 years old, makes it more difficult for a government employer to set a mandatory retirement age, and expands remedies to an employee required to retire due to age.

New Jersey employers that previously relied on these provisions should be sure to update their policies and practices. If you require any assistance, Reed Smith’s experienced Labor and Employment attorneys are available to assist.

Federal contractors and subcontractors receive guidance on President Biden’s vaccine mandate, including December 8, 2021 compliance date

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

LexBlog