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

On Friday March 12, 2021, Governor Cuomo signed into law legislation which requires that beginning March 12, 2021, all New York employers must provide up to four hours of paid leave per COVID-19 vaccine injection. Below are the salient features of the new law:

Who is covered?

All employees irrespective of employer size or industry.

What amount of leave are employees entitled to?

Up to four hours off per vaccine injection, paid at the employee’s “regular rate of pay.”

The law does not specifically address how much time an employee is entitled to if the vaccine requires two injections, but the law is drafted as permitting leave “per vaccine injection,” thus employees who receive a two shot vaccination could be entitled up to eight hours of paid leave.

When does the law expire?
Continue Reading NY Employees Granted Up to Four Hours of Excused Leave Per Vaccine Injection

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

In 2020, California enacted several new laws affecting employers and their employment policies and procedures. While some of these laws are already in effect, others go into effect over the course of the next few months and years.

Laws That Took Effect in 2020

Workers’ Compensation COVID-19 Liability

By signing SB 1159 into law on September 17, 2020, California Governor Newsom codified his earlier issued executive order, which states that under certain circumstances, when an employee tests positive for COVID-19, there is a rebuttable presumption that the employee contracted the virus while at work and, therefore, said illness is covered by the employers’ workers’ compensation insurance coverage.
Continue Reading 2021 Employment Law Spotlight: California

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

The EEOC again updated its Technical Assistance Questions and Answers (Q&A), which we have been following closely, and previously covered on June 11, 2020.

In its most recent update, the EEOC addressed specific questions related to administering COVID-19 tests (Q&A, A.7); permitting employees into the physical workplace, and permissible COVID-19 questions (Q&A, A.8, A.9, A.11, A.12, A.13, and A.14). The EEOC also updated its guidance regarding confidentiality of medical information (B.5, B.6, B.7, and B.8), as well as reasonable accommodations and teleworking (D.8, D.14, D.15, D.16, D.17, and D.18).
Continue Reading UPDATE: EEOC Updates COVID-19 Technical Assistance Publication with Q&A