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

Tuesday, March 2nd at 12:30pm ET

Employee Leave Laws: Managing the Intersection of FMLA, ADA, and COVID Leave

Many issues can arise when coordinating employee leaves of absence, especially when employee requests are related to medications (opioids or medical marijuana), mental health impairments, remote work, and the pandemic. We are talking about the nuanced problems

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

A new year means new challenges in the world of employment law. To help employers comply with new laws and navigate today’s complex employment challenges, the Kelley Drye Labor and Employment team will be offering its second virtual WORKing Lunch Webinar Series in the coming months. The 2021 series consists of five webinars covering hot

On the heels of the FDA’s approval of the Pfizer and Moderna COVID-19 vaccines, the EEOC updated its Technical Assistance Q & A to help employers navigate the latest pandemic related challenges. The EEOC guidance can be found here.

Below are highlights of the EEOC’s guidance, and our practical advice for employers who are considering rolling out a mandatory vaccination program for their employees.

Before jumping on the mandatory vaccination bandwagon, employers should consider these important questions:

  • Does your company need a mandatory vaccination program? Should you leave it to your employees to make their own decisions?
  • If you decide to implement a mandatory vaccination program, how will you announce it, how will you roll it out, and what is the timing? Have you factored in that vaccines may not be available to all employees at the same time?
  • If you decide to implement a mandatory vaccination program, how will you handle requests for exemptions? What will you do with employees who refuse to be vaccinated?
  • What are the pitfalls of a mandatory vaccination program?

Let’s break this down further.

Can employers mandate that employees receive a COVID-19 vaccine?

The answer is yes.

The EEOC’s updated guidance now addresses issues regarding “mandatory vaccinations” and makes clear that employers can mandate that employees get the COVID-19 vaccination. The justification for mandating vaccination, especially during the pandemic, is based on the premise that unvaccinated employees present a “direct threat” to others in the workplace. (K.5.).

Many employers are already stating that once the vaccine is widely available they may mandate a vaccine before employees can return to the office. However, as will be discussed below, even if a mandatory policy is enacted, employees may nonetheless be entitled to exemptions on the basis of disability or religious accommodation.

Do employers need a mandatory program?

The answer depends on your business.

If you run a business where your employees can safely work remotely or socially distance, you may not need it right away. On the other hand, if you run a retail business, school, a restaurant, or any similar business where employees circulate among each other or deal with the public, a mandatory vaccination program may beneficial to your operation. Many retail and customer facing industries believe that it will be a good advertisement if they can say that their employees are all vaccinated.

Whatever the approach, employers should not jump in without weighing the costs and benefits. Things to consider include administrative costs, challenges to implementing a mandatory program, such as training and legal compliance.

How will you roll it out and when?

Here again, messaging and timing must be carefully considered.  Right now, vaccines are only available to frontline healthcare workers. Thus, if your business does not fall into that category, you will need to wait until vaccines are available to your workforce to institute a mandatory program. Even then, you may have to allow for a vaccine rollout over time, and only make the mandate applicable to those employees who are eligible to receive a vaccine.

In the early months of 2021, practical questions about fairness may arise. For example, if an employee wishes to comply but a vaccine is not available to them, should they be excluded from the workplace? Employers adopting a mandatory program will likely face, and should be prepared to handle a number of similar questions.

Next let’s look at the issues surrounding employees receiving the vaccination.
Continue Reading The EEOC Confirms You CAN Mandate a Vaccine, But SHOULD You?

On January 20, 2021, Vice President Joseph R. Biden Jr. will be sworn in as the 46th president of the United States. Whichever side of the political spectrum you fall on, there can be no question that this is going to signal changes – and not all of them positive – for employers. For all

Summer is coming to an end, and you know what that means: school is back in session. We’ve previously provided general guidance on the challenges facing students, parents and employers this fall as students return to school during the pandemic. This post focuses specifically on what employers doing business in New York should be considering.

The same overarching analysis applies when determining your obligations if an employee is seeking leave to care for children who would be in school if not for COVID-19:

  • Does FFCRA apply?
  • Does a state or local Emergency COVID-19 leave law apply in our jurisdiction?
  • Does a paid sick leave law apply in our jurisdiction?
  • Does a company benefit or policy apply?

New York has a number of leave laws that are implicated by school closures. Fortunately, employers need not worry about New York State’s Paid Family Leave for purposes of school closures. New York has explicitly stated in its FAQ that a COVID-related school closure is not a qualifying reason for purposes of Paid Family Leave benefits under the law. An employee may, however, avail himself or herself of such benefits if the employee or the employee’s minor dependent child is subject to a mandatory or precautionary order of quarantine or isolation issued by the State, department of health, local board of health, or government entity.


Continue Reading Back to School Cheat Sheet for Employers: New York

We’ve previously provided general guidance on the challenges facing students, parents and employers this fall.  This post focuses on what employers doing business in California need to consider in response to their employee’s requests for time off work due to school or childcare facility closures.

What are your obligations if an employee is seeking leave to care for children who would be in school or daycare if not for COVID-19 related closures:

  • Does FFCRA apply?
  • Does a state or local Emergency COVID-19 leave law apply in your jurisdiction?
  • Does a paid sick leave law apply in your jurisdiction?
  • Does a company benefit or policy apply?


Continue Reading Back to School Cheat Sheet for Employers: California

We’ve previously provided general guidance on the challenges facing students, parents and employers this fall.  This is the first week of remote school for all Chicago Public School students, and this post focuses on what employers doing business in Illinois need to consider.

The same overarching analysis applies when determining your obligations if an employee is seeking leave to care for children who would be in school if not for COVID-19:

  • Does FFCRA apply?
  • Does a state or local Emergency COVID-19 leave law apply in our jurisdiction?
  • Does a paid sick leave law apply in our jurisdiction?
  • Does a company benefit or policy apply?


Continue Reading Back to School Cheat Sheet for Employers: Illinois

This fall’s return to school will be a challenge for students, parents, and employers alike.  Most states are dealing with a wide array of approaches to begin the school year.  The approaches can generally be categorized in four broad categories:

  1. In-Person: All staff and students are learning onsite.
  2. Hybrid/Blending Learning: To reduce the density in school buildings, students attend school onsite some of time and would be remote learning for the rest of the time.
  3. Only Remote: No students in school buildings and remote learning for all.
  4. Families opting out of school in an abundance of caution and deciding to homeschool.

Like everything related to COVID-19, school re-opening plans are fluid.  Some school districts planned in-person or hybrid returns this fall, but quickly shifted to only remote learning.  Others will likely transition to only remote as the virus continues to spike.  The constant flux has encouraged a sizable population of parents to opt-out of the system and homeschool their children in micro-schools or pandemic pods.  Pods are small groups of children working with an in-person tutor.
Continue Reading Back to School and the FFCRA: A Study Guide