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

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

Forget speculation about what is to come: the Biden administration has already acted to unravel the Trump legacy in employment and labor regulation—and to expand worker protections.

Join us on April 15, 2020 at 12:30 p.m. ET for a complimentary webinar, where we will take a deep dive into the regulatory changes immediately impacting your

The EEOC recently released its Enforcement and Litigation Data for Fiscal Year 2020, which ran from September 2019 to September 30, 2020—6 months before (September 2019 – March 2020) and 6 months during the COVID-19 pandemic (March 2020 – September 2020)—and several interesting trends emerged. Looking back, it is hard to say if the trends we see now would remain the same if everything hadn’t come to a complete halt exactly one year ago. Regardless, the EEOC started a new fiscal year on October 2020, and with the pandemic still raging on we can look to last year’s litigation data to provide hints about what we might expect as we go forward.
Continue Reading Litigation Data: 6 Months With and 6 Without COVID-19

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

While many states have legalized medical and recreational marijuana, marijuana remains an illegal controlled substance under federal law. As we have previously discussed, this has created a conundrum of sorts for employers who want to maintain a drug free workplace. In New York State, the landscape for employers has just gotten more challenging.

Medical marijuana has been legalized in the state since 2014. Governor Cuomo has since announced legalized recreational use may soon follow. Additionally, in New York City, employers are prohibited, with certain exceptions, from testing job applicants for marijuana. Employers can, however, test current employees.

Despite these legislative initiatives, a question still remains: What happens if an employee tests positive at work, but has a prescription for medical marijuana? A recent New York appellate court decision warns employers should proceed with caution.


Continue Reading The Cannabis Conundrum: A Warning For Employers

Last year, several major employment laws were enacted in the State of Illinois, and specifically in the City of Chicago. Employers in Illinois and/or Chicago should be reminded of these laws for 2021. Here are just a few of the highlights:

  • The Illinois Human Rights Act (“IHRA”) was amended to cover “single-employee” employers and to require employers to report to the Illinois Department of Human Rights (“IDHR”) all adverse judgements and rulings relating to harassment and discrimination;
  • Employees covered by the Chicago Fair Workweek Ordinance now have a private right of action against employers for violations of the law;
  • Chicago Enacts COVID-19 Anti-Retaliation Measures; and
  • Class action lawsuits under the Illinois Biometric Information Privacy Act (“BIPA”) are expected to continue to rise in 2021.


Continue Reading 2021 Employment Law Spotlight: Chicago and Illinois

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?