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On July 7, 2021, the New York Department of Labor (DOL) published the NY Hero Act airborne infectious disease exposure prevention standard (the Standard) and industry-specific model airborne infectious disease exposure prevention plans as required under the NY Hero Act (the Act). As we previously discussed, the Act requires New York employers to implement extensive new workplace health and safety protections in response to a “highly contagious communicable disease” as designated by the New York State Commissioner of Health (Designation). Notably and significantly, while the NY Department of Health continues to deal with COVID-19 and a risk still exists, the DOL clarified that there is no current Designation for COVID-19 by the Commissioner and therefore, no New York employer is required to put a plan in effect at this time due to COVID-19.
In light of the impact of the global COVID-19 pandemic, employers have made adjustments to facilitate remote working, with some considering maintaining expanded remote work policies even after government restrictions are lifted. However, employers should be aware of several legal issues and considerations that may apply when employees work from home and that “home” is located in another state or country. This post covers issues for employees in the United States, the United Kingdom, and France.
On June 14, 2021, the Colorado Supreme Court held that the Colorado Wage Claim Act (CWCA) requires Colorado employers to pay out employee vacation pay once earned—regardless of any relevant employment agreement or company policy. The court explained in Nieto v. Clark’s Market that, although employers are not required to offer their employees vacation pay, once they choose to provide it, vacation pay receives the same protections as other wages and compensation and cannot be forfeited when earned.
The CWCA requires Colorado employers to pay their employees earned wages in a timely manner. This includes payment of earned and determinable vacation pay upon separation from employment. Specifically, the statute provides that “the employer shall pay upon separation from employment all vacation pay earned and determinable in accordance with the terms of any agreement between the employer and the employee.” Colo. Rev. Stat. § 8-4-101(14)(a)(III).
In Nieto, the court considered the validity of an employer’s policy that, in certain circumstances, required employees to forfeit earned vacation pay benefits at termination of the employment relationship. The employer argued that the terms of the employment agreement dictated whether vacation pay must be paid upon separation because the CWCA does not require vacation pay to employees, and because Section 8-4-101(14)(a)(III) defers to the terms of the agreement between the employer and employee. The court concluded otherwise.
In a significant blow to Colorado employers, the court determined that the CWCA prevents forfeiture of earned vacation pay, and employers cannot contract around employees’ rights to earned vacation pay.
As a result of this decision, which provides long-awaited clarity, employees should immediately reassess existing vacation policies and employment agreements. Anyone with questions is encouraged to reach out to the authors of this article or the lawyer with whom they normally work at Hogan Lovells.
The state of California, after a series of recommendations that were made and then withdrawn, has finally settled on new workplace safety guidance. The Cal-OSHA Advisory Board approved the updated workplace COVID-19 prevention protocols on June 17, 2021, and Governor Gavin Newsom immediately issued an executive order implementing them. Continue Reading CA employers finally have guidance from Cal-OSHA on updated workplace COVID-19 prevention protocols
As we previously discussed, on May 5, 2021, Governor Cuomo signed the NY Hero Act (the Act) into law, codifying health and safety protocols in response to the COVID-19 pandemic. On June 7, 2021, the New York State Legislature passed amendments (the Amendments) to the Act to address certain ambiguities, in particular regarding the logistics of complying with the Act’s terms. If the Amendments are signed by Governor Cuomo, as is expected, they will push back the effective date of the majority of provisions of the Act from June 4 to July 5, 2021, with the exception of the workplace safety committee provision, which will take effect November 1, 2021.
Update: The Emergency Temporary Standard was published in the Federal Register on June 21, 2021 as an interim final rule.
On June 10, 2021, the U.S. Occupational Safety and Health Administration (OSHA) released the first nationwide emergency workplace safety rule per President Joe Biden’s January executive order directing the agency to pursue an emergency temporary standard for COVID-19. The newly published emergency temporary standard (ETS) applies only to employers in the healthcare industry, and requires such employers to protect their workers against on-the-job COVID-19 infections. Other employers should consult OSHA’s separately published guidance applicable to workers not covered by the ETS, also published on June 10 and covered in our separate blog post.
On June 10, 2021, the same day that it released its long-anticipated COVID-19 emergency temporary standard (ETS) for healthcare settings (which we discuss here), the U.S. Occupational Safety and Health Administration (OSHA) also issued updated COVID-19 guidance for non-healthcare workplaces (Guidance). The Guidance provides that, with limited exceptions, employers generally need not implement any COVID-19 safety measures for fully vaccinated workers but should continue to take a multi-pronged approach to protecting unvaccinated workers and those who are “otherwise at-risk” due to compromised immunity. Unlike the healthcare ETS, the Guidance for non-healthcare settings is advisory and not legally binding.
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On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its “What you should know about COVID-19” Frequently Asked Questions (the FAQs), answering questions many employers have had regarding COVID-19 vaccinations and addressing additional considerations relevant to returning employees to the worksite. The FAQs include long-awaited guidance on how employers may provide incentives for employees to obtain vaccines, and also discuss employer inquiries about employee vaccination status and mandatory vaccine policies, among other issues.
Below are key takeaways from the EEOC’s May 28 guidance. Continue Reading EEOC releases guidance on permissible vaccine incentives and other COVID-19 vaccine issues