Employment

The Biden Administration yesterday unveiled its Path out of the Pandemic – a six-pronged plan designed to further combat COVID-19.

Employers implementing mandatory Covid-19 vaccination programs must manage, and in some cases accommodate, exemption requests. Legal exemptions from mandatory vaccination include medical exemptions under the Americans with Disabilities Act and exemptions based on sincerely held religious beliefs pursuant to Title VII of the Civil Rights Act of 1964 (and equivalent state laws for both federal statutes).

CDC’s updated guidance suggesting facial coverings be worn in “public indoor settings” adds a new but hopefully surmountable barrier to returning the workforce to the office (though undefined, we presume this means any indoor location where two or more individuals are working). At the outset, the CDC guidance does not create a Federal workplace mandate but rather provides a baseline for the creation of safety standards grounded in scientific data – data we recognize is not static given the nature of the Coronavirus pandemic. The latest guidance has frustrated some employers who are attempting to develop sensible policies to return their workforce to offices. We offer some practical guidance regarding the changes, if any, employers might consider in response to the latest CDC guidance.

The NYC Commission on Human Rights (the Commission) has released updated enforcement guidance regarding the Fair Chance Act. New York City amended the Fair Chance Act last year and those changes will go into effect on July 29, 2021.

The New York State Department of Labor (NYSDOL) has released its HERO Act minimum standards and template policies related to airborne infectious disease prevention. Employers now have 30 days after the standards’ publication – until August 5, 2021 – to either: (1) adopt one of the model standard exposure prevention plans applicable to their industry, or (2) develop and establish an alternative prevention plan that meets or exceeds the minimum standards.

Cal/OSHA has approved revised Emergency Temporary Standards (ETS) and Governor Newsom has issued an executive order waiving the usual 10-day legal review and approval process by the Office of Administrative Law (OAL). This revised ETS (the third version since late May) more closely aligns with the CDC and California Department of Public Health (CDPH) guidelines on face covering restrictions and physical distancing.

It’s been a long road to recovery for employers since New York first issued its NY Forward reopening requirements for offices and other similar environments back in May 2020.  Today, as New York reached a key vaccination metric – 70% of adults have now received at least one vaccine shot – Governor Cuomo announced that New York businesses will no longer be required to abide by the current industry-specific guidelines in order to reopen.  Accordingly, the current NY Forward guidelines on capacity restrictions, social distancing, cleaning and disinfection, health screenings, contact tracing, and other virus-related restrictions are now lifted in most commercial settings. 

Bonuses and their impact on an employee’s “regular rate of pay” have long been a proverbial thorn in the side of California employers.  The nondiscretionary nature of most bonuses (even those bonuses employers attempt to characterize as “discretionary”) makes them part of a non-exempt employee’s regular rate of pay for purposes of determining the appropriate overtime rate. Cal. Labor Code § 226 requires all hourly rates of pay to be reflected in employees’ pay statements.  The ambiguity surrounding the extent to which this “hourly rate of pay” includes bonuses in all of their various forms and the related overtime adjustments can sometimes leave employers feeling uncertain as to how to ensure compliant paystubs when nondiscretionary bonuses are paid to non-exempt employees. A recent decision from the Ninth Circuit Court of Appeals offered some clarity. 

It’s been a busy month (year?) for New York employers – one that has brought several important updates with respect to employers’ reopening plans. On the heels of the State’s May 19th adoption of the recent CDC guidance outlining increased privileges for fully vaccinated individuals, New York State updated its NY Forward COVID-19 reopening guidance on June 8, 2021, including its guidance geared toward office environments. As a reminder, New York businesses opting to reopen during the COVID-19 pandemic must do so consistent with the State’s industry-specific reopening guidelines, found here; affirm their compliance with same prior to reestablishing in-person operations; and implement a written safety plan governing its workplace safety protocols.

Cal/OSHA has relaxed some of its COVID-19 Prevention Emergency Temporary Standards (ETS) for fully vaccinated individuals to better align with the California’s June 15, 2021 goal to end most mask and physical distancing requirements. But the proposed revisions stop short of fully adopting the May 13, 2021 CDC guidance for fully vaccinated individuals and do not (yet) provide guidance on several important issues, including the enforcement of documentation for vaccine verification and how employers can demonstrate that physical distancing is not feasible.

According to Bloomberg Law, class actions challenging 401(k) plan fees are increasing at a record pace. The underlying claims in these class action suits fall into predictable categories that are all too familiar: excessive fees, poor fund choices, poor plan design, fiduciary neglect, and prohibited transactions. Khan v. PTC, Inc. fits the pattern. The plaintiffs claim that the fiduciaries of the PTC, Inc. 401(k) plan:

Massachusetts Governor Charlie Baker recently signed legislation requiring employers to provide COVID-19 emergency paid sick leave (“COVID-19 EPSL”) to employees who are unable to work for COVID-19-related reasons. In this post, we summarize and answer some frequently asked questions.

Environmental, social, and governance (“ESG”) investing has experienced quite the regulatory roller coaster in recent years.

The New York State Legislature recently passed the Health and Essential Rights Act (the “HERO Act”), which has been delivered to Governor Cuomo for his signature. The legislation seeks to address continued COVID-19 safety concerns in the workplace and is designed to codify, supplement, and replace numerous executive actions that have been issued throughout the pandemic. The HERO Act would also pass into law significant new health and safety obligations for New York employers, including the formation of joint labor-management workplace safety committees to help ensure worker safety. Employers should prepare now to come into compliance with the new law, which we summarize below.

The CDC’s recent guidance suggesting that most fully vaccinated individuals may discontinue certain safety measures, such as masking and social distancing, has created significant confusion for employers navigating conflicting and ever-changing state and local COVID-19 workplace laws, regulations and guidance. While the most recent CDC guidance endorses resuming activities (indoors and out) without masks for most fully vaccinated individuals, the guidance around vaccination verification and disparate treatment between the vaccinated and unvaccinated is still lacking. Employers are now facing these sensitive but critically important return to office issues without the benefit of critical guidance from Federal, state and local regulators. We provide some guidance below regarding vaccine verification and some considerations for employers thinking about instituting vaccine policies.

On May 13, 2021, the Centers for Disease Control and Prevention (the “CDC”) published guidance indicating that fully vaccinated individuals do not need to wear a mask or physically distance in certain indoor and outdoor environments, except where otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. The guidance does not apply to healthcare settings and certain other environments.

Many employees relocated during the Covid-19 pandemic and some are expected to continue working remotely, creating complexities for employers because of state and local wage-and-hour laws and other regulations, says Mintz employment partner Jen Rubin. She explains how organizations can get a handle on where their employees are working and why they need to do so.

New York’s off duty conduct law will now explicitly apply to an employee’s off-duty use of cannabis. The change in law came as a result of the recent passage of “The Marijuana Regulation and Taxation Act,” which generally legalized the sale and use of cannabis for individuals 21 and over, and presents real compliance challenges for employers, which we discuss further below.

The Department of Labor has issued model notices regarding COBRA premium assistance (a/k/a COBRA subsidies). As we wrote about here, as part of the American Rescue Plan Act of 2021, Congress sought to enable qualifying individuals – known under the law as “Assistance Eligible Individuals” – to continue their healthcare coverage by subsidizing their COBRA premium payments for the period between April 1 and September 30, 2021. We discuss these notice requirements and related issues below.

The recently enacted American Rescue Plan Act of 2021 (the “Act”) creates a federal subsidy covering 100% of COBRA premiums for certain employees and other qualified beneficiaries. The subsidy is payable during the six-month period commencing April 1, 2021 and ending September 30, 2021. Individuals who previously experienced an involuntary termination, or reduction in hours, but who did not elect COBRA, are allowed to enroll. Similarly, individuals who dropped COBRA coverage, but who are still within their original COBRA coverage period, are allowed to re-enroll. Employers are reimbursed for the cost of the subsidy through a payroll tax credit.