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From 1 October 2022, the requirement for employers to physically check their new hires’ right to work (RTW) documents will return unless they opt to use one of the new government ‘Identification Document Validation Providers’ (IDSP) to validate RTW evidence online.

Background

Prior to the pandemic, all RTW checks had to be carried out face-to-face.

As a temporary measure brought in during the pandemic, the Home Office allowed employers to carry out RTW checks over video call and to accept scanned documentation (as opposed to having face-to-face checks and then copying and retaining original documents, as was the pre-pandemic requirement). This temporary measure will end on 30 September 2022. 

Reminder of requirements

All UK employers must carry out certain RTW checks for new recruits (regardless of nationality) and also use reasonable steps to ensure their current employees have and maintain a RTW in the UK. While there is no standalone liability for employers who fail to correctly carry out RTW checks, failing to do so exposes employers to fines of up to £20,000 per breach in the event that they employ someone illegally (plus criminal liability, disqualification of directors, reputational damage, among other risks). Compliant RTW checks secure a statutory excuse to civil liability for the hiring of illegal workers.

Continue Reading UK employers, are you ready for October? Change in Right to Work Check Requirements

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

The City of Pittsburgh is expected to enact the new Temporary COVID-19 Emergency Paid Sick Ordinance (the “Ordinance”), which provides Pittsburgh employees with a new entitlement of up to two weeks of paid time off for qualifying absences related to COVID-19. While this legislation may be well intended, it presents potentially significant challenges for employers with Pittsburgh-based workforces that have spent the past several months adapting to what seems like an ever-evolving carousel of federal, state, and local laws enacted in response to the pandemic.

With the federal Families First Coronavirus Response Act (FFCRA) set to expire on December 31, 2020, absent an extension by the federal government, the Ordinance appears to be the City’s effort to provide paid leave rights for qualifying reasons relating to COVID-19.

However, the Ordinance considerably exceeds the FFCRA in the scope of covered employers.  All Pittsburgh employers with 50 or more employees (including employers whose employees normally work in the City of Pittsburgh but are now teleworking from other locations as a result of the pandemic) are covered by the Temporary COVID-19 Emergency Paid Sick Ordinance.  By contrast, the FFCRA’s coverage was limited to only employers with fewer than 500 employees. As such, many larger employers with a workforce in Pittsburgh that were excluded from the FFCRA’s coverage will now immediately have to take steps necessary to provide for the requisite paid leave benefits. Further, even if an employer was subject to the FFCRA and previously took actions to provide for COVID-related paid leave, those employers should immediately update previously established policies to ensure compliance with the Ordinance.
Continue Reading Employers with Pittsburgh-based employees face new requirements to provide COVID-19-related paid sick leave

On April 23, 2020, Illinois Governor J.B. Pritzker announced he would be extending the state stay-at-home order through May 30, 2020. The new extended order, which goes into effect on May 1, 2020, imposes a number of new restrictions, while lessening others.

New restrictions and requirements

  • Face covering required in public settings: Illinois residents over the age of two who are able to medically tolerate a face covering are required to wear face coverings when in public places where they are unable to maintain 6-foot distancing. Face coverings are also required in public indoor spaces such as stores.
  • Employers must provide employees with face coverings and PPE: Employers that are Essential Businesses and Operations and those engaged in Minimum Basic Operations, as those terms are defined in the order, must provide employees with face coverings and require employees to wear face coverings where maintaining a 6-foot distance is not possible at all times. Additionally, when the circumstances require, employers must provide employees with other personal protective equipment (PPE) in addition to face coverings.
  • Essential stores must provide employees with face coverings and follow additional distancing requirements: Consistent with the new required measure that employers provide face coverings/PPE to employees, retail stores designated as Essential Businesses and Operations under the executive order must provide face coverings to all employees who are not able to maintain 6-foot social distancing at all times. They must also, to the greatest extent possible:
    • Limit occupancy at 50% of store capacity or at the occupancy limits set by the Department of Commerce and Economic Opportunity;
    • Set up store aisles to be one-way where practicable and identify the one-way aisles with signage and/or floor markings;
    • Inform customers about social distancing requirements established by the extended order through signs, announcements, and advertisements; and
    • Discontinue the use of reusable bags.
  • Manufacturers must follow social distancing requirements and take other precautions: In addition to following the social distancing requirements set forth in the order, manufacturers that continue to operate must take other appropriate precautions, which may include:
    • Providing face coverings to employees who are unable to maintain 6-foot social distancing at all times;
    • Staggering shifts;
    • Reducing line speeds;
    • Operating only essential lines;
    • Ensuring all spaces where employees may gather allow for social distancing; and
    • Downsizing operations to the extent necessary to allow for social distancing and a safe workplace.
  • Work-from-home encouraged, poster required: All businesses must evaluate which employees are able to work from home, and are encouraged to implement work-from-home arrangements when possible. If employees must physically report to a work-site, employers must post the guidance from the Illinois Department of Public Health and Office of the Illinois Attorney General regarding workplace safety during the COVID-19 emergency.

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Continue Reading Face coverings required in Illinois, and other updates to stay-at-home order

New York state employers, it’s time to dust off and update your employee handbooks again.  Earlier this month, Governor Andrew Cuomo signed a law that protects employees against discrimination on the basis of their reproductive health decision-making. The law, which mirrors a recent bill passed by New York City lawmakers, also requires that employers in…

The New Jersey Paid Sick Leave Act takes effect today, October 29, 2018. Just in time for flu season.

If you are a New Jersey employer or an employer with employees in New Jersey, regardless of size or employee number, you are now required by law to provide one hour of sick leave for every 30 hours worked – up to 40 hours in a benefit year – to all employees (including part-time and seasonal) with the minor exceptions of: (i) per diem health care employees, (ii) construction workers employed under a collective bargaining agreement (who will later begin to accrue sick leave under the law on the date the agreement expires), and (iii) public employees previously entitled to sick leave benefits under state law.

Sick leave under the law begins to accrue on the law’s effective date (October 29th), or upon an employee’s later date of hire, and may begin to be used 120 days after an employee’s start of employment (or upon such earlier date that an employer permits).  Leave granted under the law may be advanced in whole, or be subject to accrual.

The state law preempts the various municipal laws previously in effect.  Employers who provide paid time off (PTO) banks are compliant with the Act provided the PTO may be used for the purposes and in the manner set forth under the state law and is accrued at a rate equal to or greater than the rate provided by the law.

An employer may choose the increments in which an employee may use earned sick leave, provided that the largest increment required does not exceed the number of hours an employee is scheduled to work for that shift (including any overtime). Acceptable reasons for using paid sick leave include: (i) for preventative care or the diagnosis, care, treatment or recovery of an employee’s own mental or physical illness, injury or health condition, or that of their family member; (ii) treatment, counseling or preparation for legal proceedings necessary following domestic or sexual violence to an employee or their family member; (iii) an employee’s need to attend school-related conferences, meetings or events regarding their child’s education, or to attend a school-related meeting concerning their child’s health; or (iv) an employee’s time off upon the employer’s closing, or the closing of their child’s school or child care provider, due to a public health emergency.
Continue Reading New Jersey Employers: The State Paid Sick Leave Law Is Now In Effect – Are You Ready?

Employers considering requiring their employees sign arbitration agreements with class waivers just got a real-world example of the effectiveness of such agreements. On September 25, 2018, the U.S. Court of Appeals for the Ninth Circuit upheld the enforceability of arbitration agreements signed by thousands of Uber drivers in California. In the underlying lawsuits, the Uber…

The United States District Court of New Jersey recently dismissed an employee’s disability discrimination, failure to accommodate and retaliation claims, holding that neither the New Jersey Law Against Discrimination (LAD) nor the New Jersey Compassionate Use Medical Marijuana Act (CUMMA) required the employer to waive its drug testing requirements.

In Cotto v. Ardagh Glass Packing…

With a few minor tweaks here and there, your company has probably relied on the same severance and employment-related settlement agreements for years. Sure, you touch base with your friendly neighborhood employment lawyer from time to time to ensure there haven’t been any significant legal developments that necessitate revisions. But aside from peripheral alterations, these agreements have, by and large, retained their same basic form and content.

Among the most important terms of your company’s “form” severance and settlement agreements is the confidentiality clause. This provision protects your business from the public disclosure of potentially damaging allegations of workplace wrongdoing. This is particularly important when the asserted allegations exaggerate or skew the facts or are flat out spurious. Or when the alleged misconduct was perpetrated by a rogue manager, unbeknownst to management. Regardless of the reason, the confidentiality clause is of paramount importance. In fact, outside of the employee’s release of claims, your company – like so many others – considers this clause to be the seminal term of the agreement. Without it, your company might be far more hesitant, if not outright unwilling, to enter into potentially costly severance and settlement arrangements with current and former employees.

Two recently enacted laws – one at the federal level and one spurred by New York legislators – threaten to topple the long-standing use of confidentiality clauses in severance and settlement agreements, at least in cases involving sexual harassment. Below, we discuss each of these laws, as well as how you and your company can navigate the proverbial minefield of recent nondisclosure-related legislation.…

Continue Reading Are confidentiality clauses about to become a relic in sexual harassment cases?

Get ready, set…but wait…maybe not… As employers gear up to meet the swiftly approaching December 1, 2016, deadline to implement the Department of Labor’s (‘DOL”) new overtime pay requirements for white-collar workers, 21 states, the U.S. Chamber of Commerce, and several other business groups filed legal challenges in various courts to halt the changes The DOL’s Final Rule was specifically designed to raise the salary of low-wage workers who perform exempt work, and therefore, do not qualify to be paid for overtime. Although some welcome this amendment to the Fair Labor Standards Act (“FLSA”) for America’s workers, others believe the revisions basically ignore the type of work performed in favor of doubling the salary threshold for overtime exemption.  Although many employers are wondering if the filing of the new lawsuits will top the new rules from coming into force, they are advised to continue working diligently to adjust their business practices in order to ensure compliance with the law’s requirements until further notice.
Continue Reading We May Not Have Heard The Last Word . . . The New White Collar Exemption Rules