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California Court Strikes Down Board Diversity Law: Now What?
April 14, 2022 | Blog | By Jennifer Rubin
Jen Rubin, chair of Mintz’s ESG practice group, looks at the recent California court decision striking down the state’s law mandating corporate board seats for underrepresented communities. She says boards still need to dedicate themselves to a meaningful process for seating the right board and offers suggestions for ways to ensure community representation.
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New York City Commission on Human Rights Provides Salary Range Transparency Act Guidance
April 11, 2022 | Blog | By Danielle Dillon, Evan Piercey, Michael Arnold, Jennifer Rubin
The New York City Commission on Human Rights has released a Fact Sheet entitled Salary Transparency in Job Advertisements, which provides much-welcomed guidance to employers on the NYC Salary Range Transparency Act. Some questions, however, remain unanswered.
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New York State HERO Act Designation Expires
March 21, 2022 | Blog | By Evan Piercey
On March 17, 2022, the designation of COVID-19 as an airborne infectious disease that presents a serious risk of harm to the public health under the HERO Act ended. The New York State Department of Labor (“NYSDOL”) declined to extend this designation. The most immediate effect of this designation ending is that the activation of workplace exposure prevention plans mandated under the HERO Act is over.
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The Department of Labor Addresses 401(k) Plan Investments in Cryptocurrencies
March 17, 2022 | Blog
EEOC (Again) Updates Religious Accommodation and Vaccine Mandate Guidance
March 14, 2022 | Blog | By Danielle Bereznay, Corbin Carter
The EEOC has once again updated its guidance and answers regarding the ongoing COVID-19 pandemic’s interaction with anti-discrimination laws. We previously discussed this guidance here. This guidance, updated on March 1, 2022, provides additional detail to Section L (Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates). We discuss the key details below.
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Health Plan Transparency and the Case for Welfare Plan Fiduciary Committees
March 7, 2022 | Blog
The Consolidated Appropriations Act, 2021 (the “Act”) adopted a series of transparency requirements that apply to employer-sponsored group health plans. These transparency rules impose a series of new and complex obligations on plan fiduciaries that mirror the rules that have governed retirement plan fiduciaries for the last decade. While both pension and welfare plans are subject to ERISA’s fiduciary standards, fiduciary committees, which are common in the case of retirement plans, are far less common where welfare plans are concerned. The new law provides compelling reasons for this to change.
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(Updated) Congress Ends Mandatory Arbitration of Sexual Harassment and Sexual Assault Claims
February 18, 2022 | Blog | By Delaney Busch, Danielle Dillon
Congress has passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, marking a milestone in the #MeToo movement. This legislation (which President Biden is expected to sign into law) will effectively end mandatory arbitration of sexual assault and harassment disputes. Employees will now have a choice to proceed with their claims via arbitration or in court.
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Hughes v. Northwestern University: Lessons for Retirement Committees and Other Fiduciaries
February 16, 2022 | Blog
The Supreme Court recently handed down its much-anticipated decision in Hughes v. Northwestern University. The question before the Court is whether the petitioners – current and former participants in two retirement plans maintained by the University – plausibly stated a claim for breach of fiduciary duty. This post reports on the decision and considers its significance to retirement committees and other fiduciaries who oversee and administer plans with participant-directed investments.
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Impact of Recent OSHA and CDC Updates on Employers’ Mandatory Vaccination Policies
February 14, 2022 | Blog | By Natalie C. Groot, Danielle Dillon
Now that OSHA has withdrawn its vaccine or test rule, many employers are considering the use of mandatory vaccination policies in their workplaces. Employers have met this development with varied responses – some employers have rescinded vaccination requirements that were compliant with the more stringent OSHA Emergency Temporary Standard (“ETS”) requirements, some have retained mandatory vaccination policies compliant with the now-withdrawn ETS, and still others have created mandatory vaccination policies without reference to the ETS.
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NY State Secure Choice Savings Program Implementation Phase Begins
February 4, 2022 | Blog | By Michelle Capezza
Last year, New York State joined an ever growing number of states requiring certain employers to either offer employees a retirement savings plan or enroll in the applicable state program. More specifically, the New York State Secure Choice Savings Program (“NY Secure Choice”) provides a retirement savings program in the form of an automatic enrollment payroll deduction IRA (similar to a Roth IRA) that allows employees to opt-out from participation. New York State employers, whether for profit or not for profit, with at least ten employees in the state at all times during the previous calendar year, who have been in business at least two years, and have not offered a qualified retirement plan in the last two years, are subject to the participation requirements of the NY Secure Choice (“Applicable Employers”).
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Report on the January 19, 2022 Three Agency “Listening Session” on Provider Non-Discrimination Rules: The Impact on Group Health Plans
January 31, 2022 | Blog
Section 108, Division BB of the Consolidated Appropriations Act, 2021 requires the Departments of Labor, Health & Human Services and the Treasury (the “Departments”) to issue regulations under Section 2706(a) of the Public Health Service Act (the “Provision”). The Provision bars group health plans and health insurance carriers from discriminating, with regard to participation under a plan or coverage, against any health provider that acts “within the scope of its license or certification under applicable state law.” Once issued, these rules will have important consequences for group health plans and other stakeholders.
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Supreme Court Blocks OSHA Vaccine Rule for Large Employers
January 13, 2022 | Blog | By Michael Arnold, Corbin Carter
The Supreme Court has stayed OSHA from enforcing its vaccine-or-test rule for large private employers. In its opinion, the Court found that Congress did not grant OSHA the authority to issue such a sweeping rule. Empowered to issue a workplace safety rule? Yes. But, according to the Supreme Court, OSHA did not impose such a rule; instead, it attempted to impose a broad public health measure, which the Court considered outside of the agency’s purview. In short, as the Court noted: “imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not ‘part of what the agency was built for.’”
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Cal/OSHA Revised Guidance Effective January 14, 2022
January 13, 2022 | Blog | By Nicole Rivers, Paul Huston, Jennifer Rubin
Cal/OSHA revised its Emergency Temporary Standards (“ETS”) following its mid-December meeting and, more recently, made additional revisions to align with the California Department of Public Health’s recommendations.
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(Updated) A Comprehensive Breakdown of OSHA’s COVID-19 Vaccination Rule
January 12, 2022 | Blog | By Michael Arnold, Jennifer Rubin, David Barmak, Corbin Carter, Evan Piercey, Danielle Bereznay, Danielle Dillon, Nicole Rivers, Paul Huston, Emma Follansbee
Read Mintz’s comprehensive analysis of OSHA’s Emergency Temporary Standard pertaining to workplace COVID-19 vaccination and testing requirements for employers with 100 or more employees.
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Broker and Consultant Compensation Disclosures of General Agent Commissions Under the Consolidated Appropriations Act, 2021
January 11, 2022 | Blog
In two previous posts, we reported on the rules enacted in Section 202, Division BB of the Consolidated Appropriations Act, 2021 (the “Act”) requiring the disclosure of direct and indirect compensation paid to brokers and consultants who advise group health plans. Our first post focused on the underlying statutory provision; the second post covered the highlights of Department of Labor Field Assistance Bulletin 2021-03. This post addresses the narrow question of the reporting of general agent commissions under the new rules and in light of Field Assistance Bulletin 2021-03. The question is of practical interest, and it also sheds light on the Department of Labor’s initial approach to the interpretation of the statute.
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New York State Department of Health Issues Updated Interim COVID-19 Quarantine and Isolation Guidance
January 7, 2022 | Blog | By Evan Piercey, Corbin Carter, Michael Arnold
On January 4, 2022, and faced with record numbers of COVID-19 cases in New York State, the New York State Department of Health (“NYSDOH”) issued Interim Updated Isolation & Quarantine Guidance. The Interim Guidance aligns NYSDOH’s isolation and quarantine recommendations for the general population with the guidance issued by the CDC on December 27, 2021, which the CDC has updated repeatedly since then, and about which we previously reported on here. This Interim Guidance also supersedes the essential worker portion of NYSDOH’s December 24, 2021 shortened isolation guidance, although the portion pertaining to healthcare workers remains in effect. We will continue to provide updates on NYSDOH’s recommendations, as well as those issued by other public health agencies, as events continue to unfold.
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(Updated) Shorter COVID-19 Isolation and Quarantine Periods Will Impact Workplaces
January 6, 2022 | Blog | By Nicole Rivers, Michael Arnold, Jennifer Rubin
UPDATE: Following its original announcement, the CDC further updated its guidance to apply the 5 day quarantine rule to those who are asymptomatic but now also to those whose symptoms are resolving (without fever for 24 hours). The guidance now also includes a reminder that applicable local laws continue to apply and that the recommendations do not apply to healthcare workers (for whom the CDC has issued separate guidance). The CDC separately updated its definitions of “isolation” and “quarantine” and outlined additional recommendations regarding testing and masking procedures for individuals who test positive and those who are exposed to COVID-19. This post has been updated to reflect these changes.
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Department of Labor Issues Advice on Broker and Consultant Compensation Disclosures Under the Consolidated Appropriations Act, 2021
January 5, 2022 | Blog | By Marc Aspis
In Field Assistance Bulletin 2021-03, the Department of Labor (the “Department”) announced a temporary enforcement policy relating to the rules enacted in Division BB of the Consolidated Appropriations Act, 2021 (the “Act”) requiring the disclosure of direct and indirect compensation paid to brokers and consultants who advise group health plans.
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In-House Counsel’s Role in Bridging the Generation 'We' Gap
January 4, 2022 | Blog | By Jennifer Rubin
Mintz Member Jennifer Rubin authored an article published by Corporate Counsel exploring how a new generation of tech savvy, social justice-focused, and environmentally aware employee stakeholders are creating recruitment, retention, and other employment challenges. In the article, she wrote that corporate counsel can play a key role in managing and mitigating this human capital risk, not only in response to the growing environmental, social, and governance disclosure and regulation trends, but as part of the need to design future-proof legal frameworks for the workplace.
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New York Department of Labor Issues Proposed Regulations for HERO Act Workplace Safety Committee Requirement
January 4, 2022 | Blog | By Evan Piercey, Michael Arnold
The New York State Department of Labor has issued proposed regulations interpreting and further defining the contours of the HERO Act’s joint labor-management workplace safety committees. We summarize the proposed regulations below.
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