On October 20, 2021, California’s Division of Occupational Safety and Health (known as Cal/OSHA) issued proposed language for the second readoption of Emergency Temporary Standards (ETS) for COVID-19 Prevention.
The Internal Revenue Service (IRS) recently issued some much-needed guidance surrounding the application of deadline extensions that the IRS and the U.S. Department of Labor (DOL) previously issued for initial elections under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) and initial and subsequent premium payments.
The pandemic may be waning, but the requirement for Colorado employers to provide supplemental public health emergency leave to employees under certain COVID-19–related circumstances continues. On October 15, 2021, U.S. Secretary of Health and Human Services Xavier Becerra announced another extension of the nationwide COVID-19 public health emergency, effective October 18, 2021.
The U.S. District Court for the Western District of Texas recently denied an employer’s motion for summary judgment when its alleged shifting reasons for terminating the plaintiff’s employment contract raised genuine issues of material fact as to whether those reasons were a pretext for discrimination and/or retaliation.
Healthcare and healthcare-related employers have not just been at the heart of the fight against the COVID-19 pandemic, they have also recently been on the battleground in the fight over mandatory vaccination. Multiple states and locales have enacted some form of a mandatory COVID-19 vaccination requirement. Many of these vaccination mandates are directed at healthcare workers and state employees. These mandates vary by locality as to where the mandates apply, to whom the mandates apply and in what contexts, and when exemptions apply. And, of course, the federal mandates announced in September 2021 loom in the background.
As a follow-up to its September 20, 2021 announcement, the White House announced on October 15, 2021, that it would lift the travel ban for fully vaccinated foreign nationals starting November 8, 2021.
Holiday season and the end of the year are both quickly approaching, and with the turning of the calendar from 2021 to 2022 come several employee benefit plan amendment deadlines and implementation requirements. Some of these changes are optional for plan sponsors to adopt so now is a good time to discuss and plan for the upcoming year.
The Court of Appeal of the State of California, Fourth Appellate District, recently handed a potentially significant website accessibility win to the business community under the Unruh Civil Rights Act (Unruh Act) when it upheld a jury verdict in Thurston v. Omni Hotels Mgmt. Corp. (Cal. Ct. App. Sept. 23, 2021), finding that the blind user of a hotel’s website reservation mechanism lacked a “bona fide intent” to make a hotel reservation.
On October 13, 2021, Arkansas Governor Asa Hutchinson allowed a new law addressing mandated COVID-19 vaccines for employees to go into effect without his signature. The Arkansas legislation specifically allows employees to opt out of COVID-19 vaccine requirements by means other than the medical or religious exemptions allowed by federal law, and it requires employers to provide a specific exemption process.
On September 30, 2021, California Governor Gavin Newsom signed into law Assembly Bill (AB) No. 1578, which amends Government Code section 11425.20(a) to provide that administrative hearings shall be open to the public, including by live audio or video.
The New York State Division of Human Rights (NYSDHR) recently announced that for complaints filed on or after October 12, 2021, it will no longer discontinue complaints following private settlements. This announcement comes as a significant change in the division’s long-standing practice of allowing parties to privately settle complaints before case closure.
A district judge for the U.S. District Court for the Eastern District of Virginia recently dismissed a case due to the plaintiff’s failure to file suit within the allotted time identified in the notice of right to sue (NRTS) that the U.S. Equal Employment Opportunity Commission (EEOC) issued. Moyer v. Shirley Contracting Company, LLC, No. 1:21-cv-00046 (August 18, 2021) highlights the importance of recognizing when the clock begins ticking on the deadline to file suit and how attention to the Federal Rules of Civil Procedure can assist in litigation.
On October 7, 2021, California Governor Gavin Newsom signed Senate Bill (SB) No. 331 into law. SB 331 is known as the “Silenced No More Act.” It amends California Code of Civil Procedure Section 1001 and the California Fair Employment and Housing Act (FEHA) and imposes significant new restrictions on severance and settlement agreements.
On October 11, 2021, Governor Greg Abbott issued Executive Order (EO) No. GA-40, prohibiting any entity in Texas from requiring any individual, including an employee, to receive a COVID-19 vaccination if that individual objects to the vaccination “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”
The third wave of the COVID-19 pandemic in Mexico has ebbed significantly in the last few weeks—enough for the federal government to lift all restrictions on social and business activities in nine states. Under Mexico’s four-tiered COVID-19 Traffic Light Monitoring System, those nine states are in “green light” status, the only restriction-free status. Because the pandemic is ongoing, Mexico’s health authorities have continued to urge the population to reduce the risk of infection by complying with government guidelines to prevent the further spread of the virus.
On October 6, 2021, the Government of Canada announced two measures to reduce the spread of COVID-19. The government announced (1) a vaccination mandate for the federal public service and (2) a vaccination mandate for federally regulated travel by “air, rail, and marine transportation.”
Employers that are considering imposing health plan premium surcharges to encourage their employees to get vaccinated have clearer guidance on how to do so without running afoul of the nondiscrimination rules under the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
Both vaccination surcharges and incentives are permitted by HIPAA, provided that a plan complies with the requirements for “activity-only” wellness programs under the HIPAA regulations. Importantly, that means limiting the amount of the health plan surcharge or incentive generally to 30 percent of the total cost of coverage under the health plan, and providing a reasonable alternative way to avoid the surcharge if it is medically inadvisable for an individual to get the COVID-19 vaccine.
To address the prevalent and ongoing practice of permitting employees to work from home, a new California law authorizes employers to provide required workplace notifications to their employees as attachments to emails. Senate Bill (SB) No. 657 was signed into law on July 16, 2021. While the new law maintains the requirement to physically display mandatory postings in the workplace, SB 657 also provides California employers with a new way to provide important notifications to employees about wage and hour issues that could help deter employers from class and collective action liability regarding such claims.
In a rare victory for employers that participate in multiemployer pension plans, the Sixth Circuit Court of Appeals held that the interest rate memorialized in the Segal Blend actuarial assumption was inappropriate to use in a withdrawal liability calculation because it is not based on “anticipated experience under the plan.”
In accordance with the New York Health and Essential Rights Act (NY HERO Act), on July 6, 2021, the New York State Department of Labor (NYS DOL), in consultation with the New York State Department of Health, published the Airborne Infectious Disease Exposure Prevention Standard and Model Airborne Infectious Disease Exposure Prevention Plan. Although the NYS DOL initially published the standard and model plan only in English, the NYS DOL has since furnished the standard and the model plan in Spanish. In addition to the non-industry specific model plan, the NYS DOL has created 11 industry-specific templates, which are available only in English.
In Rahman v Cannon Design Architecture Inc., the Ontario Superior Court of Justice upheld termination provisions that appeared to be in violation of the minimum standards prescribed by the Employment Standards Act, 2000 (ESA). This decision represents a positive development for Ontario employers.
The Connecticut Department of Labor (CTDOL) recently issued nonbinding guidance on amendments to the Connecticut Family and Medical Leave Act (CTFMLA) that will become effective January 1, 2022. The primary point of the guidance is to clarify the CTDOL’s position on eligible employee leave entitlements, when the leave commenced in 2021 continues into 2022.
The COVID-19 pandemic has led to an explosion of remote work, including for positions traditionally not considered eligible for remote work. As employers have returned employees to office work environments, some employees who historically worked on-site have requested continued work from home as an accommodation under the Americans with Disabilities Act (ADA). On September 7, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) brought its first lawsuit alleging that an employer had discriminated against a disabled employee by failing to accommodate her by allowing work from home due to her increased risk of COVID-19 and by terminating her employment.
Employers will soon face stricter financial penalties for keeping their employees’ tips under a final rule published by the U.S. Department of Labor (DOL) on September 24, 2021. Section 3(m)(2)(B) of the Fair Labor Standards Act (FLSA) prohibits employers—including “managers and supervisors”—from keeping employees’ tips “for any purposes,” regardless of whether employers claim a tip credit.
In a September 28, 2021 Mine Safety and Health Administration (MSHA) stakeholder meeting, Deputy Assistant Secretary for Policy Jeannette J. Galanis stated that MSHA does not intend to issue an emergency temporary standard (ETS) requiring COVID-19 vaccinations or testing of miners. Instead, MSHA will continue to rely on its COVID-19 guidance to mine operators and existing statutory and regulatory enforcement capabilities.
On September 23, 2021, the New York City Council passed six bills—a first-of-its-kind legislative package directed at gig economy workers—that seeks to provide protections to the city’s food delivery workers. The bills, each of which amend the administrative code of New York City, have been sent to Mayor Bill De Blasio, who has already voiced his support for the legislation. The legislative package is the culmination of a lengthy controversy in New York City regarding the rights and protections that should be afforded to gig workers. Notably, many states, including New York, have been engaged in prolonged legal battles over the questions relating to the treatment of gig workers.