Connecticut’s Paid Family and Medical Leave Program’s Applications Are Now Open

In a press conference on December 1, 2021, Governor Ned Lamont, along with Connecticut Paid Leave Authority Chief Executive Officer Andrea Barton Reeves, announced that the Connecticut Paid Leave Authority is now accepting applications for Connecticut residents who want to participate in the state’s new paid family and medical leave program.

Louisiana Workforce Commission Publishes Posters on Expanded Employee Pregnancy Accommodation Rights

Effective August 1, 2021, the Louisiana Employment Discrimination Law was amended to expressly require Louisiana employers with more than 25 employees to provide reasonable accommodations to employees with limitations arising from pregnancy, childbirth, or related medical conditions, provided that such limitations are known to the employers.

Breaking News on the CMS Vaccination Rule: Less Than 24 Hours After Being Shelved in 10 States, the Rule Is Sidelined Nationwide

In a November 30, 2021, order, a federal judge sitting in Louisiana entered a nationwide preliminary injunction against the Biden administration’s Centers for Medicare and Medicaid Services’ (CMS) interim final rule entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination.” The effect of the order is that CMS must immediately “cease all implementation or enforcement of the [CMS] Rule” in the remaining 40 states not covered by an earlier November 29, 2021, order from a federal judge sitting in Missouri that prevented implementation and enforcement of the CMS rule in only 10 states.

Federal Judge Shelves President Biden’s CMS Vaccine Mandate … But in Only 10 States

In a 32-page order issued on November 29, 2021, United States District Judge Matthew T. Schelp entered a preliminary injunction against the Biden administration’s Center for Medicaid and Medicare Services (CMS) interim final rule entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination.”

Oregon OSHA Anticipates Delay in Adopting COVID-19 Vaccine or Test Standard

When the U.S. Occupational Safety and Health Administration (OSHA) issued a new emergency temporary standard (ETS) on November 4, 2021, Oregon OSHA had only 30 days to adopt its own standards, until December 4, 2021. However, in light of a federal court order staying the federal ETS, Oregon OSHA recently updated its website to state that it does not anticipate adopting a rule by December 4, 2021, although it is “continuing discussions with stakeholders.”

New California Law Targets Warehouses—and Perhaps All Employers That Use Performance Metrics

A new California law, Assembly Bill (AB) No. 701, provides new regulatory scrutiny of job performance quotas at warehouse distribution centers. The stated purpose of the law is to ensure that the use of production quotas do not penalize workers for taking meal and rest breaks, using the restroom, and complying with other health and safety standards.

Supreme Court Seeks Solicitor General Input on Preemption Challenge to California’s AB 5

On November 15, 2021, the Supreme Court of the United States issued an order concerning the California Trucking Association’s (CTA) challenge to California’s independent contractor law, Assembly Bill (AB) 5. The Supreme Court‘s order invited the United States Solicitor General (SG) to file a submission describing the federal government’s position with respect to this case and the question CTA posed to the Court that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) preempts AB 5.

Colorado’s November 2021 Rulemaking: ‘Use It or Lose It’ PTO Is Finally Dead, and Other Highlights

On November 10, 2021, after a public hearing and comment submission period, the Colorado Department of Labor and Employment (CDLE) published three final rules: (1) the Colorado Overtime and Minimum Pay Standards Order #38 (COMPS 38), (2) the 2022 Publication and Yearly Calculation of Adjusted Labor Compensation Order (2022 PAY CALC Order), and (3) the updated Wage Protection Rules. All these rules go into effect on January 1, 2022, and have significant implications for employers doing business in the state.

Reasonable Expansion? New York Passes Additional Whistleblower Retaliation Law

On October 28, 2021, New York Governor Kathy Hochul signed into law Senate Bill S4394A, which amends section 740 of the New York Labor Law (NYLL) to enhance protections for private-sector employees who allege retaliation for reporting violations of and “law, rule or regulation.” While cases alleging whistleblowing and the reporting of unsafe working conditions have been on the rise since March 2020, Governor Hochul indicated a need to ensure employees’ ability to speak out, stating that “protecting workers must be part of our overall economic recovery efforts.”

Federal OSHA’s COVID-19 ETS: Will It Change the Next ETS for California?

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) to minimize the risk of COVID-19 transmission in the workplace. The California Division of Occupational Safety and Health (Cal/OSHA) was planning to update and adopt new language for the California COVID-19 ETS that would take effect in January 2022. However, California’s proposed language for the revised ETS does not match the language of OSHA’s ETS, leaving many wondering if California will now revise the proposed language to bring the California ETS into alignment with the federal standard and proceed with the “Horcher” adoption process to quickly adopt the federal OSHA requirements.

Iowa Strengthens Medical and Religious Exemptions From Vaccine Policies, Permits Individuals Discharged for Refusing Vaccines to Qualify for Unemployment Benefits

On October 29, 2021, Iowa Governor Kim Reynolds signed House File 902 into law, a measure that requires Iowa employers with mandatory COVID-19 vaccine policies to waive their requirements for employees who seek vaccination exemptions for medical or religious reasons. The law also permits individuals to qualify for unemployment insurance benefits, even when they have been discharged from employment for refusing to receive COVID-19 vaccines.

Georgia Courts Cannot Toll Duration of Noncompete Agreement, Even Against Willful Violator

Since the passage of the Georgia Restrictive Covenants Act (O.C.G.A. § 13-8-50 et seq.) in May 2011, there has been some level of uncertainty regarding the extent to which a court may “blue pencil” or modify an otherwise unenforceable covenant, including whether a court may extend the restrictions period of a post-May 2011 noncompete agreement.

U.S. Chamber of Commerce Asks Ninth Circuit to Reconsider Ruling Upholding California’s Mandatory Employment Arbitration Ban

On October 20, 2021, the U.S. Chamber of Commerce, the lead plaintiff challenging AB 51, filed a petition for rehearing en banc with the U.S. Court of Appeals for the Ninth Circuit, seeking to reverse the Ninth Circuit’s decision in Chamber of Commerce of the United States of America v. Bonta, No. 20-15291 (September 16, 2021), partially upholding AB 51.

Massachusetts Court Ruling Highlights Importance of Employer Responses to Personnel File Requests in Motions to Compel Arbitration

Judge Shannon Frison, sitting in the Middlesex County Superior Court in Massachusetts, recently issued a ruling that highlights for employers the importance of providing complete and timely responses to requests for employee personnel files. Judge Frison’s ruling arose in the context of an employer’s motion to dismiss or compel arbitration in accordance with the terms of an arbitration agreement that the employer had failed to produce in response to a request for the employee’s personnel file.

The Public Health Emergency Supplemental Leave Requirement in Colorado Is Not Over

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.

Consistently Inconsistent: An Example of Shifting Reasons for Employment Termination Precluding Summary Judgment

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.

Finding Religious Accommodations in Rhode Island’s COVID-19 Vaccination Requirements for Healthcare Workers

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.