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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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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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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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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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Mayor-elect Eric Adams has announced that he plans to keep New York City’s vaccine mandate in place once he takes office.
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In July 2019, the Auditing Standards Board of the American Institute of Certified Public Accountants (AICPA) issued a revised Statement on Auditing Standards No. 136 entitled, “Forming an Opinion and Reporting on Financial Statements of Employee Benefit Plans Subject to ERISA.” Originally slated to take effect for tax periods ending after December 15, 2020, the revised standard was delayed by one year. Audit firms may however choose to adopt the standard on the original effective date.
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In a recent decision, the Massachusetts Supreme Judicial Court (SJC) confirmed that the framework used in federal Fair Labor Standards Act (FLSA) cases, not the ABC classification test set forth in Massachusetts’ independent contractor statute, M.G.L. c. 149 § 148B, provides the appropriate test for evaluating whether an entity is a joint employer for Massachusetts wage law cases.
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Supreme Court to Have Final Word on OSHA Vaccine Order

December 23, 2021 | Blog | By Michael Arnold, Evan Piercey

As expected, the U.S. Supreme Court will rule on whether OSHA may proceed with its Vaccine Order for large employers. The Court will hold a special hearing on January 7, 2022. Briefings are due by December 30, 2021. The Court will also consider whether a separate vaccine order related to healthcare workers is enforceable.
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New York City Council Passes Salary Range Transparency Law

December 23, 2021 | Blog | By Danielle Dillon, Michael Arnold

The New York City Council passed a bill which would amend the New York City Human Rights Law and require employers to state the minimum and maximum salary for any position located in New York City. This applies to job postings and advertisements, as well as promotion or transfer opportunities. This is the latest move to encourage salary transparency and equity, which is a growing movement a number of states and locales, including New York have joined to address systemic pay inequities.
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New York City Updates its Vaccine Executive Order Guidance

December 23, 2021 | Blog | By Michael Arnold, Evan Piercey

The updated guidance now states that NYC employers must comply with its vaccine order regardless of whether the OSHA vaccine order becomes effective. The guidance originally stated that “[c]overed entities or individuals who are subject to federal requirements that are not currently in effect because of a court order must comply with this order.” The guidance has now been updated to read: “Covered entities or individuals who are covered by the OSHA rule that allows either employee vaccination or testing must comply with this order – their workers must be vaccinated if they do not have a reasonable accommodation.” The City is taking this position even though the NYC Vaccine Executive Order itself states that it does not apply where a covered entity is already subject to another order, including an order of a “federal entity that is in effect and requires them to maintain or provide proof of full vaccination.”
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Is COVID-19 a Disability? Answer: Sometimes

December 17, 2021 | Blog | By Delaney Busch

The EEOC has updated guidance clarifying when COVID-19 may comprise a disability under the ADA. In a new Section N of its COVID-19 guidance entitled “COVID-19 and the Definition of ‘Disability’ Under the ADA, Rehabilitation Act, and other EEO Laws,” the EEOC focuses on when COVID-19 is, or is not, a disability, and the resulting impact on an employer’s obligation(s) under the law. Importantly, the guidance clarifies that depending on the circumstances, COVID-19 can meet the ADA’s three-part definition of “disability” (i.e., “actual disability”, “record of disability” or being “regarded as an individual with a disability”) and provide protections to applicants and employees. However, not every individual with COVID-19 will qualify as disabled. Employers must assess on a case-by-case basis to determine if the requisite standards are met. The guidance provides multiple examples of actual disabilities and regarded as disabilities to further assist employers in their assessments.
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New York City Releases Private Employer Vaccine Executive Order

December 16, 2021 | Blog | By Evan Piercey, Corbin Carter, Michael Arnold

New York City has released its anticipated vaccine order for private businesses alongside a workplace vaccine requirement webpage containing interpretative guidance and other helpful links. The new vaccine order generally requires employers to obtain proof of a worker’s vaccination before allowing them entry into the workplace. As we previously reported, Mayor Bill de Blasio described this mandate as a “preemptive strike” made in an effort to confront looming challenges posed by the Omicron variant and the holiday season. We summarize relevant portions from the order and interpretative guidance below, and note that NYC employers will need to take several affirmative actions to come into compliance in the next couple of weeks.
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The Shrinking Scope of Confidentiality: California Extends Confidentiality Ban to All FEHA Protected Classes

December 15, 2021 | Blog | By Nicole Rivers, Jennifer Rubin, Mike Flesuras

California has once again reined in the use of confidentiality provisions in the employment context with its recent enactment of the Silenced No More Act (SB 331), which goes into effect January 1, 2022.

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Vaccinated or Not - California’s Indoor Mask Mandate Resumes

December 15, 2021 | Blog | By Paul Huston

Citing the presence of the Omicron variant in California and the heightened transmission risks surrounding the holiday season, the California Department of Public Health has instituted an indoor masking mandate for public settings effective December 15, 2021 and continuing through January 15, 2022.
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California Court Deals Blow to Employee Mobility

December 14, 2021 | Blog | By Nicole Rivers, Micha Mitch Danzig, Jennifer Rubin

California employers and executives might view fixed term employment agreements in a new light following a California appellate court’s unpublished decision suggesting employers do not violate California’s long-established policy promoting employee mobility when they enter into these types of agreements.
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