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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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Massachusetts Supreme Judicial Court Rejects Use of Independent Contractor Statute for Joint Employment Status Determination
December 23, 2021 | Blog | By Tom J. Pagliarini, Danielle Dillon
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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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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New York Will Require Employers to Notify Employees of Phone, Internet, and Email Monitoring
December 9, 2021 | Blog | By Danielle Dillon, Evan Piercey, Michael Arnold
Effective May 7, 2022, all New York employers will be required to provide notice to employees of any employer monitoring of work phones, emails, or Internet use.
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New York City Announces a Vaccine Mandate for All Private Employers
December 7, 2021 | Blog | By Michael Arnold, Evan Piercey
Mayor Bill de Blasio has announced a COVID-19 vaccine mandate that will apply to all private employers in New York City. The Mayor announced the mandate as a “first in the nation measure,” and a “preemptive strike” in response to challenges posed by the new Omicron variant, colder weather, and holiday gatherings.
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Broker and Consultant Disclosures to Group Health Plans under Division BB of the Consolidated Appropriations Act, 2021
December 6, 2021 | Blog
Division BB of the Consolidated Appropriations Act, 2021 (“Act”) broadly addresses surprise medical billing and health plan transparency. This post focuses on Section 202 of Division BB (the “Provision”), which establishes rules governing the disclosure of direct and indirect compensation paid to brokers and consultants who advise group health plans.
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OSHA Vaccine Rule Blocked Permanently by Fifth Circuit, But Judicial Review Will Continue
November 19, 2021 | Blog
A three-judge panel on the Fifth Circuit Court of Appeals has now permanently blocked OSHA from implementing and enforcing its vaccine rule, which impacts employers nationwide. This is not the end of the judicial review road for the vaccine rule. Challenges to the rule were filed in multiple federal circuit courts across the country. Regardless of the outcome, the Supreme Court will likely have the final word.
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New York Significantly Expands its Whistleblower Law
November 19, 2021 | Blog | By Evan Piercey, Michael Arnold
New York has greatly expanded its “whistleblower” law. The amendments to New York Labor Law §740 go into effect on January 26, 2022 and undoubtedly enhance employee protections and require New York employers to take certain steps to come into compliance. We discuss in greater detail below.
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The Department of Labor’s ESG Proposed Rule: A Retirement Committee Perspective
November 12, 2021 | Blog
A recently proposed Department of Labor regulation entitled “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights” (the “Proposal”) addresses the duties of retirement plan fiduciaries when considering economically targeted investments – i.e., investments that take into account environmental, social, and governance (“ESG”) factors. Issued in response to a May 20, 2021 Executive Order, the Proposal would significantly modify prior, Trump-era rules on the subject. This post examines the Proposal from the retirement committee perspective.
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OSHA Vaccine Rule Temporarily Blocked By Federal Appeals Court
November 7, 2021 | Blog | By Delaney Busch
A Federal appeals court has temporarily blocked OSHA’s vaccine rule. Citing to potential “grave statutory and constitutional issues” with the rule, the 5th Circuit promised an expedited judicial review of whether to block it permanently. We expect that even after the 5th Circuit rules, the Supreme Court will be asked to weigh in. We also, of course, will be closely monitoring this legal development, which impacts employers nationwide. Although the future of the OSHA vaccine rule is unknown at this time, employers should continue to take steps to come into compliance given the short compliance window provided by OSHA if the rule is upheld.
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NYSDOL Issues Guidance Regarding Employee Use of Cannabis
November 3, 2021 | Blog | By Evan Piercey, Corbin Carter, Michael Arnold
The New York State Department of Labor (NYSDOL) has published guidance regarding employee cannabis use.
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EEOC Updates Religious Accommodation and Vaccine Mandate Guidance
October 28, 2021 | Blog | By Michael Arnold, Danielle Bereznay, Corbin Carter
The EEOC has updated its technical guidance and answers to add six religious accommodation-based questions and answers in a new Section L (Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates). The updated guidance does not necessarily break new ground in this area; instead, it mostly reinforces several preexisting concepts, including (i) how employers should analyze the religious nature and sincerity of an employee’s belief; (ii) what might constitute “undue hardship”; and (iii) the need for employers to analyze each accommodation request on a case-by-case basis. We break down the updated guidance further below.
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Massachusetts Paid Family and Medical Leave—Updates from the Department
October 21, 2021 | Blog | By Danielle Dillon, Natalie C. Groot, Patricia Moran
The Massachusetts Department of Family and Medical Leave (the “Department”) has issued a number of changes relating to the Massachusetts Paid Family and Medical Leave (“MAPFML”) since their last quarterly briefing.
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Departments of Labor, Health and Human Services, and the Treasury Clarify Rules Governing Premium Surcharges/Discounts Related to COVID-19 Vaccinations
October 13, 2021 | Blog | By Michael Arnold
The Departments of Labor, Health and Human Services, and the Treasury (the “Departments”) recently issued a set of Frequently Asked Questions—FAQs About Affordable Act Implementation, Part 50, Health Insurance Portability and Accountability Act, and Coronavirus Aid, Relief, and Economic Security Act Implementation—confirming that employers may utilize group health plan coverage surcharges in compliance with the ACA and HIPAA, although Title VI, ADA, and GINA compliance-based questions remain
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Viewpoint Editors
Corbin Carter
Associate
Michael S. Arnold
Member / Chair, Employment Practice
David Barmak
Member / Chair Emeritus, Employment, Labor & Benefits Practice
Natalie C. Groot
Member
Paul M. Huston
Member
Anne L. Bruno
Member
Emma Follansbee
Associate
David R. Lagasse
Member
Brendan J. Lowd
Member
Patricia Moran
Jennifer B. Rubin
Member
Alexander K. Song
Member
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