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President Biden just signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” known informally as the “Me Too” law. It becomes effective immediately, and amends the Federal Arbitration Act (FAA) to ban the mandatory arbitration of sexual assault and harassment claims.

What does the new law mean for the future of employment arbitration? Can employers still have any type of a mandatory arbitration program? The answers to these questions are not immediately obvious, but you can be assured that the Me Too Bill will make harassment claims more expensive and more complicated to resolve. It is also not a surety that the end of arbitration will be good for victims or potential plaintiffs.

What the law will mean for your business will depend on a number of factors, including where you are doing business (as mandatory arbitration is already prohibited in some states), and whether your company had a mandatory arbitration program in place for customers or employees. However, all businesses may see an uptick in harassment claims, as that often happens whenever there is a very public legal development in this area.

What does the Me Too law say?

The main provision of the law is short enough to reproduce here:

“[A]t the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispose arbitration agreement or predispose joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”

The terms “sexual assault dispute” and “sexual harassment dispute” are not confined to federal claims, but is any such claim as defined according to “applicable Federal, Tribal, or State law.”
Continue Reading The End of Arbitration? What the “Me Too” Law Means for the Future of Employment Arbitration

The start of a new year is the time for annual retrospectives, predictions, and promises to get back into the gym. Although we can’t help with that last one, we wanted to take this opportunity to offer our own analysis on the state of employment law in 2021, and to see if we can predict the hot-button issues for the rest of 2022.

COVID Concerns

For now, the headline issue remains COVID. 2021 had seemed to offer a glimmer of hope that the pandemic was coming to an end, only for those hopes to be dashed by the virulent Delta and Omicron variants. Big cities like New York implemented sweeping vaccine mandates for businesses and customers, while some states and even the federal government issued more targeted mandates for healthcare workers and contractors. Earlier this year, we saw the Supreme Court issue two seemingly divergent rulings on vaccine mandates, eliminating President Biden’s requirement for employers with 100+ employees to mandate vaccination or masking for those in the workplace. Meanwhile, a New York judge in Nassau County struck down the state’s masking requirement for public spaces (the order is currently stayed pending appeal).

Employers are left with a hodgepodge of COVID-related rules and regulations depending on where they and their workers reside. New laws and lawsuits are inevitable, but they only amplify the collective wish for the pandemic to be extinguished—here’s hoping.

Restrictive Covenants

The onset of COVID-19 ushered in the remote-work revolution. But this phenomenon, coupled with the so-called “great resignation” has led to employers confronting some novel legal issues. When seeking to enforce a restrictive covenant against a former worker, which law applies? The question was a simpler one in the Before Times—back when it was obvious that the worker lived and worked in the same state as the employer. But now, a vague restrictive covenant might no longer apply to an employee who made a big move.

Even after confronting choice-of-law issues, expect to see more arguments over what restrictions are now viable in a world where an employee can work remotely for a competitor across the country just as easily as your competitor down the block.

Of course, these are just the issues exacerbated by the pandemic. As ever, restrictive covenants remain a thorny issue and fodder for frequent legislation. For instance, Oregon has passed a law making any restrictive covenant lasting for more than a year to be unenforceable. Expect a lot of activity in this area throughout 2022.
Continue Reading Top 5 Employment Law Trends for 2022

Last week, the Supreme Court issued two opinions on COVID regulations impacting employers and workers across the country.

  • In the first, the Court stayed OSHA’s “vaccine or test” mandate for employers with 100 or more employees, finding that OSHA had overstepped its authority in promulgating the rule.
  • In the second, the Court allowed a rule implemented by the Centers for Medicare and Medicaid Services (“CMS”), requiring healthcare facilities to ensure vaccination of their entire workforces, with no testing alternative.

The seemingly contradictory opinions have set the world of legal commentary aflame, but more importantly, have left employers asking: what do we do now?

Here’s our brief guide.

Blocking OSHA

On September 9, 2021, President Biden announced his plan to increase vaccination rates among Americans. Two months later, on November 5, OSHA issued its emergency temporary standard (“ETS”), mandating workforce vaccination for all employers with 100 or more employees across the country. In lieu of vaccination, an employee might submit to masking and testing, at their own expense. By OSHA’s estimate, 84.2 million employees, or roughly half the U.S. workforce, would be subject to its mandate. Across the country, legal challenges to the ETS were filed almost simultaneously with the rule.

Continue Reading Supreme Court Splits on Vaccine Mandates

UPDATE: December 17, 2021

In a move that comes as no surprise, the EEOC has updated its COVID-19 technical assistance to provide guidance on when COVID-19 may be considered a “disability” under the ADA, making specific reference to the DOJ/HHS guidance discussed in the original blog below. The EEOC’s technical assistance focuses “more broadly on COVID-19” beyond just “long COVID,” and does so “in the context of Title I of the ADA and section 501 of the Rehabilitation Act, which cover employment.” However, the EEOC’s guidance clearly echoes the DOH/HHS guidance and states that long COVID or sustained symptoms of COVID may be a “disability” under the law.

In many states, long COVID could also qualify as a disability under state laws. So, employers should be ready for more claims into the future, even when the pandemic (finally) ends – from employees who suffer symptoms of COVID as a chronic illness.

THE GUIDANCE

What is Long COVID and when is it a disability?

The EEOC has reemphasized that determining whether COVID may be considered a “disability” under the law is a fact-intensive question, requiring an analysis of the extent to which COVID’s symptoms, its long-term effects, or the manner in which it exacerbated the symptoms of another condition “substantially limit a major life activity,” as discussed in the original blog below. This means that an individual suffering, even intermittently, from certain symptoms relating to long COVID can be considered to be “disabled” under the law.

The EEOC provides several examples of these impairments, including: “brain fog” and difficulty remembering or concentrating; substantially limited respiratory function; chest pains; or intestinal pain.

Importantly, the EEOC distinguishes these “substantially limiting” conditions from less-serious symptoms, such as “congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks,” which would not create a “disability.” But make no mistake: even these relatively insignificant symptoms may constitute a disability if they last or are expected to last for a significant period of time (i.e. more than six months).

Continue Reading UPDATE ON COVID CONSIDERATIONS: Long COVID Now an ADA Disability

Days after New York City announced its first positive case of the Omicron variant, Mayor Bill DeBlasio announced a sweeping upcoming vaccine mandate for virtually all private employers in the City. According to DeBlasio, this “preemptive strike,” set to go into effect on December 27, represents the City’s effort to get out ahead of the double threat posed by the new, highly contagious variant, and the potential increased transmission brought on by holiday travel and gatherings. However, City Hall’s hurried response has left City businesses reeling as they try to quickly adapt to unclear requirements.

What we know

First, DeBlasio announced the latest expansion to the “Key to NYC” program, which has already notably required proof of vaccination for anyone entering indoor bars and restaurants, fitness facilities, and entertainment and performance venues. Starting on December 14, children aged 5-11 will be required to show proof of at least one vaccine dose to enter those businesses. On December 27, New Yorkers aged 12 and older will be required to show proof of two vaccine doses (excepting the Johnson & Johnson vaccine, which only requires one).

More impactful is the unprecedented vaccine mandate for private-sector workers. The City will publish guidance on December 15, but for now, businesses are scrambling to anticipate their obligations before the mandate takes effect on December 27.

Continue Reading DeBlasio’s Parthian Shots: What Businesses Need to Know

The COVID-19 pandemic has laid bare the serious threat posed by unchecked airborne infectious diseases, and has prompted New York to pass the Health and Essential Rights Act (aka the “HERO Act”), which serves to establish health and safety protocols for workers across the state. Like we said in our coverage back in June, the mandatory safety standards set forth by the act apply to all airborne diseases, not just COVID-19, and as such are intended to remain a permanent feature of the employee safety measures established by virtually all private employers across the state.

As with the introduction of any new piece of legislation, questions remained even after the law came into effect. At the end of September, the Department of Labor issued an updated FAQ to address lingering and emergent issues with Section 1 of the Act, which relates to the implementation of safety plans.

Until at least October 31, COVID-19 continues to be classified as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under the HERO Act.

That means that before October 31, private employers must:

  1. Draft a plan that complies with DOL guidance on the HERO Act;
  2. Put that plan into effect; and
  3. Give employees (and contractors!) a verbal review of the plan.


Continue Reading Show Me a HERO: Department of Labor Clarifies New York’s HERO Act

On August 24, 2021, Kathy Hochul was sworn in as the first female governor of New York, assuming office in the wake of the resignation of Andrew Cuomo. The former Governor, a once-powerhouse politician with a decade in the executive office, departed Albany in disgrace.

Cuomo did not leave office alone—at least four former senior aides and state officials have also resigned, as well as several prominent supporters who found themselves caught up in the scandal created by his conduct. That number does not include those who left their positions due to the harassment they allege to have faced. Hochul must now rebuild from the rubble left behind by her predecessor, as the leadership team in the executive branch, as well as those of prominent organizations throughout New York, have been left in disarray.

The allegations against Cuomo are voluminous, and range in severity from his usage of “pet names” to his inappropriate touching of female subordinates. The report concluded that beyond the Governor himself, “the Executive Chamber’s culture” was “filled with fear and intimidation, while at the same time normalize[ed] the Governor’s frequent flirtations and gender-based comments[.]”

Cuomo’s downfall was shocking on one level, as he was long seen (or wanted to be seen) as a champion of women’s rights. In fact, on August 12, 2019, he signed groundbreaking legislation establishing some of the strongest anti-harassment legislation in the country. However, it may not have shocked many who knew him, as the report commissioned by Attorney General Letitia James’ detailed years of questionable behavior and cover-ups by those around Cuomo.
Continue Reading Lessons From a Former Governor

UPDATE: December 17, 2021

In a move that comes as no surprise, the EEOC has updated its COVID-19 technical assistance to provide guidance on when COVID-19 may be considered a “disability” under the ADA, making specific reference to the DOJ/HHS guidance discussed in the original blog below. The EEOC’s technical assistance focuses “more broadly on COVID-19” beyond just “long COVID,” and does so “in the context of Title I of the ADA and section 501 of the Rehabilitation Act, which cover employment.” However, the EEOC’s guidance clearly echoes the DOH/HHS guidance and states that long COVID or sustained symptoms of COVID may be a “disability” under the law.

In many states, long COVID could also qualify as a disability under state laws. So, employers should be ready for more claims into the future, even when the pandemic (finally) ends – from employees who suffer symptoms of COVID as a chronic illness.

THE GUIDANCE

What is Long COVID and when is it a disability?

The EEOC has reemphasized that determining whether COVID may be considered a “disability” under the law is a fact-intensive question, requiring an analysis of the extent to which COVID’s symptoms, its long-term effects, or the manner in which it exacerbated the symptoms of another condition “substantially limit a major life activity,” as discussed in the original blog below. This means that an individual suffering, even intermittently, from certain symptoms relating to long COVID can be considered to be “disabled” under the law.

The EEOC provides several examples of these impairments, including: “brain fog” and difficulty remembering or concentrating; substantially limited respiratory function; chest pains; or intestinal pain.

Importantly, the EEOC distinguishes these “substantially limiting” conditions from less-serious symptoms, such as “congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks,” which would not create a “disability.” But make no mistake: even these relatively insignificant symptoms may constitute a disability if they last or are expected to last for a significant period of time (i.e. more than six months).

Continue Reading COVID CONSIDERATIONS: Long COVID Now a Disability