BREAKING: New York HERO Act prevention plans must be implemented following the state’s designation of COVID-19 as an “airborne infectious disease”

As we have previously reported, several months ago, New York enacted the HERO Act, a sweeping overhaul of the state’s workplace health and safety laws.  On September 6, 2021, the New York State Commissioner of Health designated COVID-19 as an airborne infectious disease under the HERO Act. As such, all New York employers are now required to implement the airborne infectious disease exposure prevention plans they were previously required to prepare and circulate to their workforce. 

According to the Commissioner of Health, the designation will remain in effect until September 30, 2021, at which point the level of transmission of COVID-19 in the state will be reviewed and a determination will be made on whether to continue the designation.

To ensure compliance with the HERO Act in light of this new development, New York employers should immediately implement their airborne infectious disease exposure prevention plans. Employers who fail to implement or abide by their plan may be subject to civil penalties of up to $10,000, with repeat offenders subject to increased penalties.

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

 

 

Practical steps to ensure compliance with Texas’ robust new sexual harassment laws

On July 6, 2021, we released a blog post on Texas’ new sexual harassment laws, which became effective September 1, 2021. These laws expand liability for sexual harassment to companies with at least one employee and to individual supervisors and coworkers. Our July 6 post discusses the details of the new laws; now that they are effective, we provide some practical steps below companies should consider to ensure compliance.

  • Review your employment handbook or policies. Texas employers will be expected to have policies in place that ensure the following:
    • Employees know who to complain to if they are experiencing sexual harassment;
    • Complaints of sexual harassment are immediately and appropriately investigated;
    • Corrective action is taken immediately and appropriately; and
    • The corrective action is sufficient to stop the harassment and prevent it from reoccurring.
  • Consider implementing anti-harassment training for employees at all levels.
    • Explain to employees, especially supervisors and managers, the importance of compliance now that anyone acting directly in an employer’s interest in relation to an employee can be held individually liable for a sexual harassment claim.
  • Prepare for the extended statute of limitations for a sexual harassment claim.
    • Employees now have 300 days – instead of 180 – from the date of the alleged sexual harassment to file a charge with the Texas Workforce Commission.

If you have any questions about these new laws, or would like any guidance, assistance or advice regarding your organization’s anti-harassment or other equal employment opportunity policies, practices or procedures, please contact a Reed Smith attorney.

As of August 2021, 19 states enact COVID-19 related liability shields

On July 15, 2021, we released an article discussing the Texas liability shield for businesses against COVID-19 related claims.  Texas, however, is not the only state to enact such a shield. We have drafted a brief summary of the 19 states that have enacted COVID-19 liability shields to date.  For simplicity, we have summarized the particulars of each state’s laws. If you have any questions about any of these laws, or would like any guidance regarding your organization’s COVID-19 related policies, practices or procedures, please contact a member of Reed Smith’s Labor and Employment Practice Group.

To mandate or not? FAQs on mandatory vaccine programs for employers

Late last year, the U.S. Food and Drug Administration (the FDA) issued the first approvals for a COVID-19 vaccine. Shortly thereafter, the U.S. Equal Employment Opportunity Commission (the EEOC) issued guidance on the interplay between federal anti-discrimination law and vaccine-related issues, including the permissibility of mandatory employer vaccination policies. The below FAQs address some of the more salient questions surrounding such policies and their implementation, as well as other workplace issues triggered by the vaccine. There are undeniably more questions than answers at present with respect to vaccine-related workplace issues. Before taking any material workplace action with respect to the vaccine, therefore, please consult with a Reed Smith employment lawyer. We also have a downloadable version of our FAQs.

Q: Can employers adopt a mandatory employee vaccination policy?

A: Generally speaking, yes. In guidance issued in late May 2021, the EEOC took the position that mandatory vaccination policies are generally permissible under federal anti-discrimination laws. Just a few weeks later, in June 2021, a federal court – in the first ruling on this issue – echoed this sentiment in concluding that such policies are generally permissible. The following month, the U.S. Department of Justice issued a detailed memo reaching the same conclusion.

The two primary exceptions to the general permissibility of employer-mandated vaccination policies are for employees with disabilities and for those with a sincerely held religious belief, practice, or custom. If an employee refuses to be vaccinated and objects to a mandatory vaccination policy on one of these grounds, the employer must engage in the so-called interactive process with the employee and, subject to the “undue hardship” standards discussed below, provide the employee with a reasonable accommodation in line with applicable law.

In addition to legally required accommodations, the EEOC also cautions employers to be cognizant of any potential disparate impact created by a vaccine mandate.

Q: Are there state or local laws that address mandatory COVID-19 vaccination policies?

A: Employers must pay attention to state laws in the jurisdiction(s) where they operate. Several states have introduced legislation attempting to limit private employers’ ability to mandate COVID-19 vaccines. To date, such efforts have been without success other than in Montana.

Q: If an employer adopts a mandatory employee vaccination policy, how should it respond to an employee who indicates that they are unable to receive a COVID-19 vaccination because of a disability or a sincerely held religious belief, practice, or custom?

A: As noted, the employer must engage in an interactive process with the employee. When an employee objects to vaccination, they are requesting an accommodation under Title VII of the Civil Rights Act of 1964 (Title VII) (for a sincerely held religious belief, practice, or custom) or the Americans with Disabilities Act (ADA) (for a disability). The employer must provide a reasonable accommodation unless the accommodation would pose an undue hardship. Undue hardship is defined under Title VII as an accommodation that poses a “more than de minimis” cost or burden. For the ADA, undue hardship is more onerous to establish and is defined as creating significant difficulty or expense for the employer. Continue Reading

Dallas County issues new mask mandate to address increased transmission levels of COVID-19

On August 11, 2021, Dallas County Judge Clay Jenkins issued an order requiring masks in Dallas County businesses, schools, and county buildings. Judge Jenkins’ order comes on the heels of a Dallas County state court issuing a temporary restraining order of Texas Governor Greg Abbott’s July 29, 2021 order barring mask mandates by local governmental entities. The future of the Dallas County order is unclear with a permanent injunction hearing set for August 24, 2021 and Governor Abbott already filing a petition with the Fifth Court of Appeals of Texas challenging the order.

Under the Dallas County order, all commercial entities providing goods or services to the public must implement a health and safety policy that, at minimum, requires “universal indoor masking for all employees and visitors” and that may include other mitigating measures designed to reduce the transmission of COVID-19. Given the breadth of the order’s definition of “commercial entities,” the order arguably applies to all Dallas County employers, not just employers with worksites that are open to the general public. Businesses must post their health and safety policy in a “conspicuous location sufficient to provide notice to employees and visitors.” The Dallas County order took effect at 11:59 p.m. on August 11, 2021, and businesses have three calendar days from the effective date (i.e., until Saturday, August 14, 2021) to comply. Violations of the order may result in a fine of up to $1,000 per violation.

The rapidly changing legal landscape is one of the biggest risks facing employers as COVID-19 transmission levels ebb and flow. Employers should endeavor to adjust their workplace policies on short notice – three calendar days in this instance – to comply with health and safety requirements. Businesses should consult legal counsel to ensure compliance with state and local requirements related to COVID-19.

ADA likely to protect COVID long-haulers, Biden says

On July 26, 2021, President Biden announced that individuals with long COVID (referred to as COVID long-haulers) could be protected under several federal civil rights laws, including the Americans With Disabilities Act (ADA).

While some individuals fully recover from COVID, others experience debilitating symptoms that last long after first developing COVID-19 (long COVID), including extreme fatigue, shortness of breath, chest pain tightness, and brain fog.

The U.S. Department of Justice and the U.S. Department of Health and Human Services issued joint guidance on this issue explaining that long COVID can be a disability under Titles II (state and local government) and III (public accommodations) of the Americans with Disabilities Act , Section 504 of the Rehabilitation Act of 1973 (Section 504), and Section 1557 of the Patient Protection and Affordable Care Act (Section 1557) if it substantially limits one or more major life activities. The guidance noted that the term “substantially limits” is construed broadly under these laws and should not demand extensive analysis, and provided examples of when long COVID can substantially limit a major life activity:

  • A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.
  • A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.
  • A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking.

The guidance clarified that long COVID is not always a disability and that an individualized assessment is necessary to determine whether a person’s long COVID condition, or any of its symptoms, substantially limits a major life activity. Notwithstanding this clarification, if an employee suffering from long COVID appears to be struggling and/or requests an accommodation, employers should err on the side of caution and engage in the interactive process to see whether they can provide the employee with a reasonable accommodation without causing undue hardship.

Overview of the governments’ ‘Consultation on sexual harassment in the workplace: government response’

The UK government’s long awaited response to its 2018 consultation on sexual harassment in the workplace has now been published. In this update, we look at the findings made and what may be coming down the line for employers as a result.

  1. Introduction

The 2018 Women and Equalities Select Committee (WESC) report on sexual harassment in the workplace revealed clearly that it was a persistent and important issue, despite the existence of current legal protections. As a result, the government committed to consult on the issue and have produced an official response to the 2018 report.

The government undertook a consultation from 11 July to 2 October 2019, on sexual harassment in the workplace. This consultation took a two-part form, consisting of: 1) a technical consultation with employers on the functionality of the legal framework designed to prevent sexual harassment, and 2) a public questionnaire aimed at gathering insight into the experiences of individuals.

The consultation was designed to explore:

  1. The evidence for the introduction of a mandatory duty on employers to protect workers from harassment and victimization in the workplace
  2. How best to strengthen and clarify the laws in relation to third-party harassment
  3. Whether interns are adequately protected by the Equality Act 2010 (the Act) and the evidence for extending the protections of the Act to volunteers
  4. The views of stakeholders on extending employment tribunal time limits in the Act from 3 months.

Continue Reading

CDC releases new guidance for fully vaccinated individuals as COVID-19 rates continue to climb nationwide

On July 27, 2021, the Centers for Disease Control and Prevention (CDC) updated its COVID-19 guidance. The revised guidance, which has significant implications in the employment context, recommends that fully-vaccinated individuals wear masks in “public indoor settings in areas of substantial or high transmission.” The guidance further recommends that vaccinated persons be tested after a known or suspected COVID-19 exposure. The CDC’s guidance reverses its May 2021 guidance, which advised that fully-vaccinated individuals could generally stop wearing masks and cease social distancing. The CDC’s new guidance comes amidst a recent uptick in COVID-19 cases stemming from the highly-infectious Delta variant and is already complicating employers’ COVID-19 policies and return to work plans.

Updated masking recommendation

The CDC’s revised guidance acknowledges that fully vaccinated individuals can become infected with COVID-19 despite being vaccinated in a “breakthrough” infection. The CDC further acknowledges that, while breakthrough infections “happen in only a small proportion of the people who are fully vaccinated,” individuals with breakthrough infections can spread COVID-19. As a result of these concerns, while not referencing the workplace specifically, the CDC now recommends that all individuals, regardless of vaccination status, wear masks in public indoor settings in areas of substantial or high transmission.

Continue Reading

Sweeping amendments to New York City’s “Ban the Box” law are now in effect

Back in 2015, New York City joined the “Ban the Box” bandwagon and passed a law that delays when criminal background checks can be run on most Big Apple job applicants. Specifically, the Fair Chance Act (FCA) prohibits NYC employers from inquiring about a job applicant’s criminal conviction history until after a conditional offer of employment is extended and requires that employers undertake a multi-step process if they want to rescind a job offer based on the results of a criminal history inquiry.

Against this backdrop, on January 10, 2021, the New York City Council passed important amendments to the FCA, which amendments went into effect July 29, 2021. As detailed below, the amendments significantly expand the scope of the FCA and impose additional affirmative obligations on New York City employers. Continue Reading

What’s all this talk about federal regulation of non-compete agreements?

On July 9, 2021, the Biden Administration issued a sweeping Executive Order called Promoting Competition in the American Economy (Order). Although it does not immediately change the current legal landscape governing non-compete agreements (or any other aspects of U.S. antitrust enforcement), the Order encourages the Federal Trade Commission (FTC) to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility”. In the wake of the Order and other calls for more rigorous enforcement of employee non-compete and similar restrictive covenants, many within the business community wonder if a federal crackdown on non-compete agreements is coming. We address this issue below, and discuss steps employers may want to consider in light of the potential changes ahead.

Brief summary

According to the Fact Sheet accompanying the Order, roughly half of private-sector businesses require at least some employees to sign post-employment non-compete agreements, affecting an estimated 36 to 60 million workers. On multiple occasions over the past decade-plus, there have been calls for federal agencies to investigate and curtail the use of such agreements. President Biden’s Order is the most recent, and potentially significant, development in this area. He had vowed during his campaign to “eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets.” The Order is a further step towards fulfilling his campaign promise.

According to the White House, the Order “includes 72 initiatives by more than a dozen federal agencies to promptly tackle some of the most pressing competition problems across our economy.” One provision in the Order takes direct aim at non-competes:

. . . the FTC is encouraged to consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.

The language in the Order is not as strident as the wording in the Fact Sheet (which encourages the FTC to “ban or limit” non-compete agreements). But it certainly is expansive, targeting any “other clauses or agreements that may unfairly limit worker mobility.” We do not know if the FTC will follow the President’s lead and issue regulations addressing non-compete and similar agreements. But, at a minimum, we anticipate that employee non-compete, non-solicitation, no-rehire, and similar restrictive covenants will receive closer scrutiny by the Biden Administration, and that stricter enforcement of such agreements is very possible. Continue Reading

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