Original post on June 1, 2021 (“Making the Workplace a Safer Place: A Job for New York’s HERO Act”)

Key takeaways for New York employers from the NY HERO Act, as amended:

  • The NYS DOL must publish a model safety standard by July 5, 2021.
  • 30 days thereafter, New York employers must either adopt the model standard or create their own health and safety plan to prevent occupational exposure to airborne infectious diseases, which meets or exceeds the minimum requirements established by the NYS DOL.
  • Every employer must provide its prevention plan to its employees, within 30 days after adoption of the plan, within 15 days after reopening after a period of closure due to airborne infectious disease, and to any newly hired employee, upon hiring the new employee.
  • Employers must permit employees to establish joint employer-employee workplace safety committees, beginning on November 1, 2021.

Continue Reading New York Gives Employers More Time to Be a HERO

On January 21, 2021, President Biden enacted the Executive Order “Protecting Worker Health and Safety” which tasked OSHA with developing safety measures to help protect workers as the nation continued its post-pandemic reopening. On June 10, 2021, in response to that direction, OSHA issued an emergency temporary standard (“ETS”) focused on healthcare settings where workers are most likely to have contact with individuals infected by the virus.

Below are some of the salient points of the ETS: Continue Reading OSHA’s Emergency Temporary Standard for Healthcare

WORKing Lunch Labor & Employment Webinar Series

Tuesday, June 22nd at 12:30pm ET

Restrictive Covenants 101: NDAs, Non-Competes & Other Tools To Protect Your Company

A company’s confidential information and customer relationships are its lifeblood—and are the assets that can walk out the door too easily with a departing employee. Too few companies take a considered approach to protecting those assets. NDAs and noncompetes can help, but using them without a holistic strategy can be worse than no protection at all. Join the Kelley Drye Labor and Employment team for a practical look at how to use—and not to use—restrictive covenants, and how to tailor them to your company’s unique needs.

CLICK HERE TO REGISTER FOR THIS WEBINAR

Employers have been waiting for some definitive guidance from the EEOC on the issue of vaccines in the workplace – and here it is!

On May 28, the EEOC updated its Technical Assistance Guidance and has now stated with certainty that employers CAN indeed require employees to be vaccinated before coming in to the office or workplace. The updated guidance also addresses accommodations for the vaccinated, vaccine incentives, and vaccines for pregnant employees, among other questions. However, since this was drafted before the CDC came out with its latest guidance, it does not specifically address all issues related to the handling of unvaccinated and vaccinated employees in the workplace.

Below are some key points of the new guidance:

Mandatory Vaccination is Lawful, But Accommodations Must Be Offered

Even though many employers have opted against mandatory vaccination for their employees, the EEOC made clear that they can, in fact, mandate vaccinations for those who want to report to work. The key for employers, however, is they must engage in the interactive process and provide reasonable accommodations under the ADA and Title VII, for eligible employees seeking an exception to the mandate.

The EEOC offers some examples of possible accommodations, most of which are no surprise, such as allowing unvaccinated employee to wear a face mask, maintaining social distance from others, working a modified shift, periodic COVID-19 testing, being allowed to telework or, as a last resort, reassignment to another position. Continue Reading The EEOC’s Latest Guidance on COVID Vaccine

As employees who have worked remotely for months begin to slowly return to their offices, more guidance is emerging as to what their employers can and should do to keep them safe. Just this weekend, the EEOC came out with long-awaited guidance stating that employers may require those who come to the workplace to be vaccinated, which we will cover in a separate post.

States are also issuing their own new rules. As an example, in early May, New York Governor Cuomo signed into law the New York Health and Essential Rights Act (HERO Act), which requires all employers, of any size, to establish a health and safety plan to prevent occupational exposure to airborne infectious diseases. The HERO Act also permits employees, later in 2021, to establish joint employer-employee safety committees.

Below is a summary of the HERO Act’s requirements for New York employers. Continue Reading Making the Workplace a Safer Place: A Job for New York’s HERO Act


During the Trump years, the National Labor Relations Board (meaning, the actual five-member Board in Washington, whose decisions drive interpretations of federal labor law) got a lot less friendly to organized labor, and a lot friendlier to employers. That meant a lot of things, including making it easier for unions to prove that two employers were really one “joint” employer, harder for employees to organize, and harder for employers to unilaterally change terms and conditions of employment without bargaining.

The Board is less like the lifetime-appointed Supreme Court and more like your new boss who doesn’t care how your old boss did things. That’s because Board members serve out fixed but limited terms—meaning that a new Presidential administration brings new Board members when the terms of existing Board members expire. While the Board claims to rely on its own precedents (and, to some extent, does), Board members are fundamentally political appointees, and their interpretations of labor law mirror the labor agenda of the Presidents who appoint them.

Enter Biden’s appointment of Gwynne Wilcox to the Board on May 26. Biden has not exactly been subtle about his labor policy agenda: as he announced the American Jobs Plan on March 31, he reminded us that he’s “a union guy. I support unions. Unions built the middle class. It’s about time they start to get a piece of the action.”

A piece of the action, indeed. Ms. Wilcox clearly knows what she’s doing when it comes to federal labor law, but what she’s doing is deeply informed by what she has done. She’s a dyed-in-the-wool union-side attorney from a law firm that exclusively represents unions, and from a position with one of the largest and most powerful unions in the Northeast, which is part of the SEIU. Continue Reading The New NLRB: Protecting Workers from Their Own Employers?

Last week, the Trump-era independent contractor classification rule was officially eradicated by the U.S. Department of Labor, (“DOL”) due to its apparent inconsistency with the Fair Labor Standards Act (“FLSA”). The rule, which we previously covered here, provided a 5-factor “economic reality” test for determining whether workers are independent contractors or employees. The two “core factors” of the test included the nature and degree of the worker’s control over the work and the worker’s opportunity for profit or loss. These factors focused on the worker’s control over the work and earnings based upon individual initiative or investment, making it easier for them to be classified as independent contractors.

Even though the Trump Administration issued the rule on January 7, 2021, intending for it to take effect on March 8, 2021, it never saw the light of day. The new Biden-administered DOL initially delayed the effective date until May 7, 2021, and on the eve of the new effective date, withdrew the rule in its entirety. Labor Secretary Marty Walsh, while acknowledging that classifying workers as independent contractors may be appropriate under some circumstances, stated that the five-factor test isn’t the right approach. After considering public comments, the DOL announced that the independent contractor rule was not “fully aligned with the FLSA’s text or purpose, or with decades of case law describing and applying the multifactor economic realities test.”

For the second time in two years, the U.S. House of Representatives recently passed the Protecting the Right to Organize Act, which would apply California’s ABC test to labor organizing. Although it faces an uphill battle in the Senate, employers should prepare for a ramp up enforcement of worker misclassifications under the new administration’s DOL, which will likely support efforts to establish a standard for independent contractors modeled after the employee-friendly ABC test.

Stay tuned to LaborDaysBlog.com to monitor more changes in employment and labor laws by the Biden administration.

President Biden announced that his administration had reached its goal of 200 million vaccine shots administered during his first 100 days in office. Not stopping there, the President also made a special call to employers across the United States to use their unique resources to help their employees and others get vaccinated.

To encourage more people to get vaccinated, President Biden, also announced a paid leave tax credit that will offset the cost for employers with fewer than 500 employees to provide full pay for any time their employees need to get a COVID-19 vaccination or recover from their vaccination.

Here’s an excerpt of the announcement:

A Tax Credit for Small and Medium-sized Businesses to Fully Offset the Cost of Paid Leave for Employees to Get Vaccinated and Recover from Any After-Effects of Vaccination. Under President Biden’s American Rescue Plan, a paid leave tax credit will offset the cost for businesses and nonprofits with fewer than 500 employees for up to 80 hours (i.e. 10 work days) up to $511 per day of paid sick leave offered between April 1 and September 30, 2021. This tax credit will allow these employers to provide paid leave for employees to get a COVID-19 vaccination and for any time their employees may need to recover from that vaccination at no cost to the employer. This tax credit will apply to nearly half of all private sector employees in America. The Internal Revenue Service (IRS) has released and posted a fact sheet to educate employers on how to claim the paid sick leave credit on their quarterly tax filings. For more details on how the vaccination-paid leave tax credits from the American Rescue Plan will work for employers to enable employees to get vaccinated and recover from after-effects of vaccination, as well as for other purposes, please consult this snapshot from the Department of the Treasury.

Tuesday, May 18th at 12:30pm ET

Wage & Hour Laws: How To Avoid Common Pitfalls

The DOL’s Wage and Hour Division recovered a record $1.4 billion in back wages for workers in the past 5 years. According to the WHD, that’s an average of $1,120 for each employee. Suffice it to say that your company’s potential liability under wage-and-hour laws continues to be very real, and very expensive.

Happily, much of this risk can be reduced with the right policies and practices in place—if you know what to look for in an ever-changing regulatory and enforcement environment.

Join the Kelley Drye Labor and Employment team for as we help participants look for their next big litigation risk by helping them find their blind spots.

  • Misclassifying non-exempt employees as exempt from overtime requirements
  • Failing to recognize what time is compensable
  • Misclassifying employees as independent contractors
  • Getting tripped up on differences between federal and state laws

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Paid sick and family leave is expanding. The ongoing COVID-19 pandemic, and the special pressures it has placed on parents and families, has renewed the push for mandated paid sick and family leave. Congress’ decision not to expand the Families First Coronavirus Response Act (FFCRA) in the latest relief package, has spurred state and local governments to renew their efforts to provide COVID-19 paid sick leave and, in some cases, permanent paid sick leave.

Also, is it safe to assume the federal government is not planning to pass a paid sick leave mandate? After all, the Federal Employee Paid Leave Act, which passed in 2019, was just expanded in October 2020. The answer is no, because all signs indicate that a paid federal leave mandate for private employers will be on the horizon during the Biden administration. But until that time comes, employers with a national or multi-state presence will need to comply with a hodgepodge of state and local laws. Continue Reading Paid Sick Leave Trends: States and Localities Step In Where Federal Law Falls Short