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Do you have 100 or more employees? Are you a federal government contractor? A healthcare provider? A large entertainment venue? If the answer to any of these questions is yes—and as you’ve already probably heard—President Biden has instructed the Occupational Health and Safety Administration (OSHA) to exercise its rulemaking authority to require all such employers to either mandate COVID-19 vaccination or to require weekly COVID-19 testing. You should review your current COVID-19 policies and President Biden’s COVID-19 Action Plan, particularly the new executive orders and mandates announced this past week, which cover about 100 million Americans, or two-thirds of the U.S. workforce.

For the moment, covered employers have to sit tight: Biden’s announcement last week was simply that OSHA will issue the new vaccination rule “in the coming weeks.” We will continue to update this blog on the many complicated issues arising from the anticipated OSHA rules, including how to comply with the rule when various Republican state governors and right-leaning interest groups have already promised litigation to challenge the rule from the moment the rule is implemented.

For now, however, here are the key takeaways for employers:

  • Employers (100+ Employees): OSHA is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or to require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Given the practical challenges with implementing weekly testing, many employers may simply mandate vaccination to comply with this new rule—and many already have. What happens if they don’t? This requirement is to carry substantial fines to be enforced by OSHA. In addition to the mandate, OSHA is developing a rule that will require employers with 100+ employees to provide PTO for the time it takes workers to get vaccinated and to recover.  
  • Federal Workers & Contractors: The President also signed an Executive Order (EO) to require all federal executive branch workers and contractors that do business with the federal government to be vaccinated. This EO eliminates the exception to the July vaccination mandate for federal employees and contractors that allowed them to opt out if they wore masks, socially distanced, and were tested for COVID-19 at least weekly. 

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Continue Reading Vaccinating the Unvaccinated: Employers Take Heed

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.

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

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

President-elect Joseph R. Biden Jr. and Vice President-elect Kamala Harris will be sworn in on January 20, 2021, signaling the official change in administration. Employers can certainly expect to see a shift in the direction of federal labor and employment laws. Already, Biden’s recent appointment of Marty Walsh, a union official, to Secretary of Labor, signifies a new era in NLRB activity and pro-employee and pro-union labor laws.  Further, the DOL and EEOC are bound to be more aggressive in undertaking many initiatives overlooked by the Trump Administration.

Federal labor and employment laws aside, New York employers should be reminded of new state laws for 2021.  Here are just a few of the highlights.
Continue Reading 2021 Employment Law Spotlight: New York

On August 3, 2020, New York federal Judge Paul Oetken, vacated several significant provisions of the U.S. Department of Labor’s April 1, 2020 Final Rule, which construes the Families First Coronavirus Response Act (“FFCRA” or the “Act”), finding that the DOL exceeded its rulemaking authority. State of New York v. United States Department of Labor et al., 20-cv-03020-JPO (S.D.N.Y. August 3, 2020).

Particularly significant for New York employers, this decision changes how they determine which employees are entitled to FFCRA leave and how they can administer those leaves.  The question remains, however, whether the vacated provisions of the DOL’s regulations are still valid in states outside of New York.…

Continue Reading New York v. United States: S.D.N.Y. Vacates Key Provisions in DOL’s Final Rule Limiting Paid Leave Under the FFCRA

On Monday, July 20, 2020, the U.S. Department of Labor published additional guidance, addressing questions arising from the COVID-19 pandemic under the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), and the Families First Coronavirus Response Act (“FFCRA”).

In this post, we highlight some of the guidance relating to wage and hour issues, and management of a remote workforce.

This guidance is particularly apropos, as more and more employers realize that the “new normal” is a world of remote work, with some employers extending telework on an indefinite basis.

Here are some interesting questions the DOL answered and our take-aways from the guidance.…

Continue Reading When Home = Work: New DOL Guidance on Managing Your Remote Workforce

This week, in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109, the National Labor Relations Board overruled a 2016 decision, and held that an employer does not have a duty to bargain over employee discipline with a union prior to reaching a first collective bargaining agreement.…

U.S. employers are now in the thick of bringing employees back to physical offices, facilities and plants. Some of the myriad issues they must address are pure HR: how to deal with employee fears, for example, or how to figure out if an employee who is immunocompromised is entitled to telework as a form of disability accommodation. Some of the issues, however, are far more basic but at the least as important: how do we ensure physical safety? Happily, the Occupational Safety and Health Administration (“OSHA”)—initially criticized for failing to provide definitive guidance on maintaining a safe workplace in a COVID world—has issued guidance on the use of “face coverings” (yes, masks) in the workplace.  This post summarizes the key takeaways from OSHA’s guidance.
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Continue Reading OSHA Issues Guidance Regarding Face Coverings In The Workplace

As businesses all over the country prepare to open up and welcome employees back to work – even while the pandemic rages on – there remains a high degree of uncertainty concerning how to keep employees safe, especially those who may be at higher risk because of age or a medical condition.  Adding to employer angst over this issue, the EEOC, the agency charged with interpreting the discrimination laws, found it necessary last week to issue guidelines and then clarify its own statements within just two days.  On Tuesday, May 5, 2020, the EEOC issued new “Return to Work” guidance, but then pulled it down within 24 hours.  On May 7, 2020, it issued updated guidance, which focused on how employers should handle return to work issues, but with special emphasis on how they should treat “high risk” employees.

One major takeaway from the guidance is that employers cannot exclude high risk employees from the workplace just because there is a concern about COVID-19 exposure.  Andrew Maunz, EEOC Legal Counsel stated, “It is important that employers understand that the ADA does not allow them to act against employees solely because the employee has a CDC-listed underlying medical condition.”…

Continue Reading Reentry Worries And The EEOC’S Latest Return To Work Guidance