UPDATE:  On May 5th, 2021, Governor Cuomo signed the legislation into law.  The law will go into effect on June 4, 2021.

On April 21, 2021, both houses of the New York Legislature announced passage of the NY Hero Act, which will require employers to implement extensive new workplace health and safety protections in response to the COVID-19 pandemic. Governor Cuomo is expected to sign the Act into law in the coming weeks.

The NY Hero Act will go into effect 30 days after the Governor signs it into law. When it does, all New York employers, regardless of size, will need to take action to comply with the new obligations that this law will impose.

Continue Reading New York set to require new workplace health and safety protections

UPDATE: On April 21, 2021, we wrote the following blog post describing guidance from OSHA that required, in certain circumstances, that employers record adverse COVID-19 vaccine reactions in their OSHA logs. On May 21, 2021, OSHA updated its FAQs to reverse its guidance on when employers should record adverse COVID-19 vaccine reactions. Employers now do not need to record adverse reactions from COVID-19 vaccines on their OSHA logs through at least May 2022. Regardless of whether an employer requires or recommends employees to get the COVID-19 vaccine, OSHA will not consider adverse reactions recordable injuries or illnesses.

On April 20, 2021, the U.S. Occupational Safety and Health Administration (OSHA) updated its FAQs with guidance stating that employers who require their employees to get vaccinated as a condition of employment may need to record employees’ adverse reactions to the COVID-19 vaccine on OSHA work-related illness logs.

OSHA generally requires most employers to keep records of certain work-related injuries and illnesses in OSHA 300 and OSHA 300A forms. Employers must submit these logs to OSHA periodically and upon request.

The recent guidance on adverse vaccine reactions states that when employers require employers to be vaccinated, such adverse reactions are considered “work-related” for the purposes of OSHA recordkeeping requirements. Thus, employers who require employees to vaccinate must record any adverse vaccine reactions they learn the employee experienced if the reaction meets one of the standard criteria that triggers an obligation to record under 29 CFR 1904.7 (i.e., the employee: missed days away from work, required medical treatment beyond first aid, had his or her work restricted or was transferred to another job, experienced a loss of consciousness, or died).

Importantly, the guidance also clarifies that, at this time, OSHA is exercising its discretion not to require employers to record adverse vaccine reactions if the employer recommends but does not require vaccination. OSHA will consider the vaccine to be required if employees would suffer repercussions (such as affecting an employee’s performance rating or professional advancement) due to their choice to not receive the vaccine.

For more information about OSHA requirements or other issues relating to the COVID-19 vaccine, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.

*An author of this post, Heather McAdams, is a Law Clerk in the New York Office.

Last year, we discussed several major changes made to Virginia employment laws that provided new protections and rights to employees. Once again, another significant change will occur on July 1, 2021 when Virginia’s new Overtime Wage Act (HB 2063) takes effect. In large part, this new law follows the federal Fair Labor Standards Act (FLSA)’s overtime protections by requiring employers to pay time and half of the employee’s regular rate of pay to employees who work in excess of 40 hours in a workweek. However, in several key ways, the new Virginia law will expand Virginia employers’ potential exposure with respect to wage and hour claims. Continue Reading Virginia’s new Overtime Wage Act increases potential exposure to Virginia employers for wage and hour claims

If your company has even one employee in Colorado, as of January 1, 2021, Colorado’s Equal Pay for Equal Work Act (EPEW) requires employers to notify employees within Colorado of all job postings and promotional opportunities, including those outside of Colorado. In some circumstances, the EPEW requires employers to provide compensation information relating to those postings and promotional opportunities. The law also imposes other requirements that are outlined briefly below.

Continue Reading Colorado employers – are you providing required notices to your employees of all job postings and promotional opportunities?

On April 6, 2021, the U.S. Department of Labor Secretary Marty Walsh placed a “hold” on the implementation of a potential U.S. Occupational Safety and Health (OSHA) COVID-19 Emergency Temporary Standard (ETS), which would set a national COVID-19 safety standard for OSHA-covered employers throughout the United States. While President Biden’s inauguration day Executive Order directed OSHA to focus its enforcement on COVID-19 efforts and set a March 15 deadline for determining whether an ETS was necessary and issuing it, Secretary Walsh stated that any ETS needs to “reflect the latest scientific analysis of the state of the disease” and is delaying its implementation until such scientific review is completed. At this time there isn’t any more information regarding how long the review period will last, and we don’t yet know when (if?) an ETS will ultimately be issued. That said, Walsh ordered a “rapid update based on [CDC] analysis and latest information regarding the state of vaccinations and the variants” stating that it would hopefully be turned over to the “next level” (presumably the White House’s Office of Information and Regulatory Affairs for review) “very soon.”  We will keep you updated as more information becomes available.

For more information on the recent OSHA National Emphasis Program (NEP), and immediate actions that OSHA-covered employers should take in light of the NEP, see our recent blog post.

[UPDATE: On April 7, 2021, the Department of Labor issued the model notices required by ARPA, as well as an FAQ to provide additional guidance on the changes to the COBRA subsidies.]

On March 12, 2021, President Biden signed the American Rescue Plan Act (ARPA) into law, aiming to provide relief to individuals and businesses suffering from the COVID-19 pandemic. ARPA impacts employer-sponsored health plans in several ways, including the implementation of a COBRA premium subsidy. Employers should be aware of the actions they must take in response to this change.

COBRA requires an employer-sponsored group health plan to give employees who otherwise would lose coverage due to termination (or another qualifying event) a chance to continue to buy coverage for themselves and any family members on the plan for a limited period after that event. The maximum coverage period generally is 18 months. The plan typically may charge up to 102 percent of the cost of coverage for similarly situated active participants (the COBRA premium).

Continue Reading American Rescue Plan Act’s COBRA health care premium subsidy

On March 18, 2019, New Jersey amended the New Jersey Law Against Discrimination (NJLAD) to include a provision that rendered unenforceable any “provision in an employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment.” On August 30, 2019, business advocates filed a lawsuit in the District of New Jersey, N.J. Civ. Justice Inst. v. Grewal, arguing that the Federal Arbitration Act (FAA) preempts this amendment by effectively prohibiting the enforcement of pre-dispute arbitration agreements between employers and their employees for claims under the NJLAD.

On March 25, 2021, U.S. District Judge. Anne E. Thompson ruled that the FAA does preempt the NJLAD amendment to the extent it would impede the use of employment arbitration agreements governed by the FAA. In her decision, Judge Thompson relied on Section 2 of the FAA, which forecloses state legislatures from attempting to undercut the enforceability of arbitration agreements. Judge Thompson found that even though the amendment does not expressly preclude arbitration, its enforcement may undercut the FAA in practice. Accordingly, the court enjoined New Jersey from enforcing the amendment with respect to arbitration agreements between employers and employees that are governed by the FAA. According to the U.S. Supreme Court’s decision in Circuit City Stores, Inc. v. Adams, the FAA governs all employment contracts except for those involving transportation employees. Thus, the impact of Judge Thompson’s ruling is far-reaching.

While this opinion may be appealed, it is welcome news for New Jersey employers who maintain pre-dispute arbitration agreements. For now, at least, pre-dispute arbitration agreements are enforceable as to NJLAD claims.

If you have any questions regarding this development or if we can be of further assistance regarding other concerns in the workplace, please do not hesitate to contact us.

*Shannon Finnegan, a Law Clerk in the New York office, contributed to this post.

As we previously discussed, New York passed legislation on March 12, 2021 to provide employees in the state with up to four hours of paid leave for each COVID-19 vaccination injection they receive. On March 21, 2021, the New York Department of Labor released Frequently Asked Questions (FAQs) that clarify several aspects of the new paid vaccination leave law.

Our previous post on this new law raised several questions with regard to its application. The newly released FAQs answer most of these questions. First, employers may require proof of vaccination to allow employees to claim paid leave, but the FAQs encourage employers to consider any confidentiality requirements applicable to such records prior to requesting proof of vaccination. Second, while the FAQs do not address whether employers may control when employees schedule their vaccination appointments, they do note that employers are permitted to require notice from employees before they take their paid leave. So, employers can likely request that the employee provide the employer with the date and time of the appointment as soon as the appointment is made. Third, employers must only provide paid leave for the “sufficient period of time” in which an employee is absent from work (not exceeding four hours). So, while an employee is entitled to up to four hours of paid leave per vaccination injection, if the employee’s appointment is at 9am, absent extenuating circumstances, the employer likely could require the employee arrive at the workplace immediately after receiving their vaccination, as opposed to permitting the employee to arrive at 1pm. Fourth, the FAQs define employers and employees: employers include any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business, or service.

In addition to answering these questions, the FAQs clarify several other aspects of the law. The most important of these clarifications include:

  • The law will remain in effect until December 31, 2022;
  • If an employee took time off to get the COVID-19 vaccination prior to March 12, 2021, employers may voluntarily provide paid leave benefits, but the new law does not require employers to provide the benefits retroactively;
  • The four hours of paid leave provided applies to each vaccine injection;
  • Employees can only take the paid leave to get vaccinated themselves, and thus may not use the paid leave to assist a relative or other person in getting vaccinated;
  • Employers may not substitute paid vaccination leave with any other paid leave benefit, such as paid sick time or leave provided by a collective bargaining agreement (CBA); and
  • Employees must be paid their regular rate of pay.

Though the FAQs have clarified many aspects of the New York paid vaccination leave law, there are still some open questions. First, the FAQs do not address whether employers may control when employees schedule vaccinations. Second, because the law and FAQs do not distinguish between full-time and part-time employees, it is unclear whether employers must provide the same leave to part-time employees.

For assistance in navigating these ambiguities, forming policies related to vaccination leave, or any other concerns regarding COVID-19 policies and procedures in the workplace, please contact an author of this article or the Hogan Lovells lawyer with whom you regularly work.

Heather McAdams, a Law Clerk in the New York office, contributed to this blog post.

[UPDATE: The California Labor Commissioner updated its FAQs in April to provide further clarification as to when employees may use COVID-19 supplemental paid sick leave (COVID-19 SPSL). Highlights from the updated guidance include:

  • For employees to receive COVID-19 SPSL due to daycare closures, the closure must have been a total or partial closure that occurred on or after January 1, 2021, and rendered the care unavailable, because of COVID-19 on the premises.
  • An employee may receive COVID-19 SPSL if they are caring for a family member either because the family member has been advised by a medical professional to stay home due to COVID-19, or the family member is subject to a COVID-19 related quarantine or isolation period.
  • Employers must provide COVID-19 SPSL immediately upon the eligible employee’s oral or written request.]

On March 19, 2021 Governor Newsom signed into law SB 95 (adding sections 248.2 and 248.3 to the Labor Code), which requires employers to pay California employees up to two weeks of COVID-19 supplemental paid sick leave (COVID-19 SPSL).

This new law revives and expands the supplemental paid sick leave law that expired on December 31, 2020. As a result of these changes from the prior iteration of California’s Supplemental Paid Sick Leave law, many more California employers will be required to provide, and many more employees will be eligible for, COVID-19 SPSL. Continue Reading California brings back, and expands, COVID-19 Supplemental Paid Sick Leave

As employers anticipate returning to work in light of increased availability of vaccines, some have considered requiring employees to get a COVID-19 vaccination to return to the workplace. On March 4, 2021, California’s Department of Fair Employment and Housing (DFEH) updated its DFEH Employment Information on COVID-19 to address whether employers may mandate vaccines under the California Fair Employment and Housing Act (FEHA). The FEHA prohibits discrimination against employees based on protected characteristics, including disability and religious beliefs.

Under the recent update, the DFEH states that employers may require employees to receive an FDA-approved vaccination against COVID-19 as long as the employer 1) provides reasonable accommodation related to disability or sincerely held religious beliefs, and 2) does not retaliate against employees for requesting such an accommodation.

Continue Reading DFEH issues guidance addressing mandatory vaccines in California