Judge Thomas Rademaker, a New York State Supreme Court Judge in Nassau County, yesterday issued an order striking down the statewide mask mandate issued by the Department of Health in December, which requires that all state residents over the age of two wear face masks in all public places, including within all schools. Judge Rademaker found that the DOH had exceeded its authority with the order, which he equated to a “law.”

Governor Kathy Hochul reacted swiftly, publicly disagreeing with the ruling and appealing the decision. An appeals court judge granted a motion to temporarily block the earlier ruling by Judge Rademaker, putting the mandate back into effect only hours later.

As the pandemic continues, it seems the judiciary is again on a collision course with the executive branch, as the government attempts to stymie the spread of the virus.

The decision did not, on its face, criticize masks or mask rules, but invalidated the DOH order on more technical grounds. In fact, the judge took pains to state that the court was not against masks, and “prays that the era of COVID ends soon[.]”

Continue Reading Governor Hochul Unmasked: New York Judge Strikes Down State Mask Mandate

New York State lawmakers have done it again – amending an often-forgotten whistleblower statute of limited application into a sweeping new source of employee rights that should make employers listen up and take notice.  Almost two years ago it was Section 741 of the New York Labor Law, focused on healthcare workers. This time, it’s Section 740, which applies to all private-sector employers. Below, we provide you with a run-down of the changes and how employers can prepare for the January 26, 2022 implementation date.

BACKGROUND

Although it has been around for decades, Section 740 is not the first law that comes to mind when an employer thinks of the various laws protecting its employees. That’s because the statute’s restrictions diminish its usefulness as a tool for employees seeking relief for an alleged retaliatory act. For example, the statute is narrow – it only applies when an employee discloses, or threatens to disclose, to the employee’s supervisor or a public body, an actual violation of law, rule or regulation that presents “substantial and specific” danger to public health or safety, or healthcare fraud. Even then, it only has a one-year statute of limitations and there is no right to a jury trial. And on top of that, even if an employee prevails, their remedies are limited to reinstatement, back pay, and attorneys’ fees, but not compensatory or punitive damages. Taken together, employees had little incentive to bring claims under Section 740.
Continue Reading I Hear That Whistle Blowing: New York’s Expanded Whistleblower Law Raises Volume On Employers

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

Where the Mandate Stands and Current Considerations for Contractors and Subcontractors

The federal contractor vaccine rollout continues to present thorny issues for federal contractors.  President Biden issued Executive Order (“E.O.”) 14042 in early September 2021, requiring federal contractor employees to get vaccinated against COVID-19.  The E.O. was followed by guidance issued by the Safer Federal Workforce Task Force (“Task Force”) in late September 2021, which has been frequently updated in the months since.

As described more fully in our prior post, under the mandate, implemented through the Task Force guidance incorporated into clauses issued by federal agencies, vaccines are mandatory for federal contractor employees working on covered contracts, those who perform duties in connection with a covered contract, and those working at the same workplace as covered employees. Contractors must also comply with masking and physical distancing requirements.  The mandate applies to subcontractors at any tier, and applies to contractors of all sizes — small, medium or large.  The E.O. and Task Force guidance immediately gave rise to many compliance questions and concerns over impact on contract or subcontract performance.  Legal challenges to the contractor vaccine requirement and actions by numerous states have further complicated an already difficult compliance landscape.

Continue Reading Uncertainty with the Federal Contractor Vaccine Mandate

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. 


Continue Reading Vaccinating the Unvaccinated: Employers Take Heed

What to expect from the projected increase in vaccine requirements, restrictions, and lawsuits in the months ahead.

With the highly transmissible Delta variant surging, and vaccination rates stagnating, employers are facing new pressures to reinstate mask mandates for everyone, regardless of vaccination status, and encourage COVID-19 vaccines through workplace mandates.

On August 23, 2021, the Food and Drug Administration (FDA) fully approved the Pfizer-BioNTech COVID-19 vaccine for use in those age 16 and older. This upgrade to full approval from “emergency use” status is predicted to lead to a rise in vaccine requirements from employers, schools, and local governments. Health officials are also hopeful that the approval will lead to higher vaccination rates. Note that the Pfizer vaccine is only one of  three COVID-19 vaccines to receive full approval. The Moderna and Johnson & Johnson vaccines remain in emergency use status only.

Even under the FDA’s prior emergency use approval, major companies – including Google, Facebook, BlackRock, and Morgan Stanley – initiated policies insisting that workers get vaccinated before returning to the office. Meanwhile, California and New York City became the first state and major city, respectively, to require public workers to be vaccinated. Illinois very recently joined the returning wave of COVID-19 related restrictions by enacting another statewide mask mandate and requiring all teachers and healthcare workers be vaccinated or subject to weekly testing. The Biden administration also requires all federal workers to attest to being vaccinated or face strict testing protocols.
Continue Reading The New Employee Status: Vaccinated or Unvaccinated

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

As PRIDE month concludes, we look back at a historic year for the rights of LGBTQ+ employees, and ahead for what this means for employers as they manage their workforce.

Looking back, it was June 2020 when the Supreme Court held that discrimination on the basis of sexual orientation and transgender status constitutes unlawful sex discrimination under Title VII of the 1964 Civil Rights Act. We’ve discussed the landmark Bostock v. Clayton County decision in-depth before. Fast forward, one year later on Bostock’s first anniversary, the EEOC issued a slate of new resources to help employers comply with new LGBTQ+ protections.

According to Catalyst.org, members of the LGBTQ+ community still face high rates of discrimination in the workplace. At least 20 percent of LGBTQ+ employees report being discriminated against when applying for jobs and 52 percent report having been subjected to lesbian or gay jokes in the workplace.

Discrimination is bad for business, as it impacts employee retention. Nearly half of LGBTQ+ workers in the United States are closeted at work with 10 percent having left a job because of an intolerant environment. Meanwhile, 25 percent reported staying in a job because of an inclusive culture.

As discrimination in the workplace persists, so too do related lawsuits. In fact, before we were able to finalize this short blog, two new cases hit the press. One involved a former Boeing contractor’s suit against a staffing agency claiming she was fired for being a transgender woman. The other involved a former Iowa Democratic official’s suit against the state’s prior Republican governor alleging the governor cut his salary and urged him to resign because he was gay. Without commenting on those claims, no employer wants to be in that headline.

So how do you avoid being in the headlines? Start by knowing the law. Here’s what you need to know about the new EEOC guidance:
Continue Reading Pride at Work: What Employers Need to Know about LGBTQ+ Rights

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.


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

On January 21, 2021, President Biden enacted the Executive Order “Protecting Worker Health and Safety” which tasked OSHA with developing safety measures to help protect workers as the nation continued its post-pandemic reopening. On June 10, 2021, in response to that direction, OSHA issued an emergency temporary standard (“ETS”) focused on healthcare settings where workers are most likely to have contact with individuals infected by the virus.

Below are some of the salient points of the ETS:
Continue Reading OSHA’s Emergency Temporary Standard for Healthcare