NY HERO Act Update—It’s Really Time to Comply

William J. Anthony

On September 6, 2021, New York Governor Hochul designated COVID-19 a “highly contagious communicable disease.” With this designation, employers now have obligations under the New York Health and Essential Rights Act (“HERO Act”) that go well beyond simply adopting one of the model prevention plans. Since we should all expect the designation to continue, it is only a matter of time before the Department of Labor (“DOL”), collective bargaining representatives, and/or employees pursue claims against employers who fail to comply with the enhanced requirements in the Act. The good news, while compliance is tedious and will take some time, it is easily accomplished. We recently presented a webinar on the HERO Act which we wanted to share with you. The link to the webinar is below and is free if you use the code BRomeLLP. The one-hour webinar is a step-by-step guide to complying with the Act’s provisions. 

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President Biden Announces Sweeping New Requirements Aimed at Combatting the Surging COVID-19 Delta Variant

Oliver R. Katz, Brooke T. Iley, and Jason E. Reisman


With COVID-19 surging once again across the United States, yesterday, September 9, 2021, President Joe Biden announced a six-part plan for tackling the rising number of COVID-19 cases throughout the country. President Biden’s announcement includes a mandate that large employers require vaccines or weekly COVID-19 testing for their employees, as well as a mandate that all federal workers and contractors be vaccinated. Estimated to affect 100 million American workers, here are some important details employers should know:

      • All employers with 100 or more employees must ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative COVID-19 test at least on a weekly basis prior to coming to work.
      • Covered employers are required to provide paid time off to employees to get vaccinated or recover from any side effects of getting vaccinated.
      • All federal executive branch workers and employees of contractors that do business with the federal government are required to be vaccinated, with no ability to opt out and instead be subject to regular testing (Blank Rome’s government contractor FAQs about the executive order can be found on our Government Contracts Navigator blog).
      • Large entertainment venues like sports arenas, large concert halls, and other venues where large groups of people gather are asked to mandate that their patrons are vaccinated or show a negative COVID-19 test for entry.
      • Healthcare facilities receiving Medicare and Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, must vaccinate their employees.
      • The vaccination requirement for nursing home facilities will now apply to nursing home staff as well as staff in hospitals and other Centers for Medicare and Medicaid Services regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are involved in direct patient, resident, or client care.
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Texas Expands Employer—and Individual—Liability for Sexual Harassment Claims

Nikki D. Kessling


Effective September 1, 2021, new provisions in the Texas Commission on Human Rights Act (“TCHRA”) provide greater protections and remedies for employees alleging sexual harassment. Key changes include the following:

    • The new provisions set a heightened standard for an employer’s response to a sexual harassment complaint. An employer now “commits an unlawful employment practice if sexual harassment of an employee occurs and the employer or the employer’s agents or supervisors: (1) know or should have known that the conduct constituting sexual harassment was occurring; and (2) fail to take immediate and appropriate corrective action.” This language somewhat (but not exactly) mirrors the Title VII analysis for coworker harassment claims, which considers whether the employer took “prompt” and effective remedial action. The amendments to the TCHRA do not define what amounts to “immediate and appropriate corrective action,” or to what degree “prompt” differs from “immediate,” and this is likely to be a disputed and litigated issue in Texas courts. Additionally, this new standard of proof does not differentiate between coworker and supervisor harassment claims—another potentially significant departure from Title VII, which generally holds employers liable for supervisor harassment unless they are able to establish an affirmative defense.

    • Unlike the remainder of the TCHRA, which applies to employers with 15 or more employees, the new sexual harassment provisions essentially cover all employers (anyone who “employs one or more employees”) and further opens the door to potential individual liability for managers, coworkers, or HR (someone who “acts directly in an interests of the employer in relation to an employee”). As a result, Texas plaintiffs may begin naming supervisors, HR professionals, and other involved employees as defendants in sexual harassment lawsuits—and those individuals may be held personally liable for damages if the plaintiff is successful.

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As If Employers Didn’t Have Enough to Worry About, Don’t Skip the ARPA Cobra Subsidy Expiration Notice

Daniel L. Morgan 

As we explained in our April 16, 2021, post, the American Rescue Plan Act of 2021 (“ARPA”) requires employers to subsidize the cost of Consolidated Omnibus Budget Reconciliation Act (“COBRA”) continuation coverage and state mini-COBRA coverage, if COBRA doesn’t apply, for qualified beneficiaries who become eligible for and elect COBRA (or a state’s mini-COBRA) benefits as a result of an employee’s loss of health plan coverage due to an involuntary termination of employment (other than for gross misconduct) or a reduction of hours. ARPA refers to people who satisfy these requirements as “Assistance Eligible Individuals.”

As explained in our earlier post, the COBRA and mini-COBRA premium subsidy is available only from April 1, 2021, through September 30, 2021.

One of the requirements of ARPA is that Assistance Eligible Employees must be notified 15 to 45 days before their premium subsidy ends that their subsidy is expiring. In the case of Assistance Eligible Individuals who are currently receiving the premium subsidy, this means that the expiration notice must be provided no later than September 15, 2021. Not meeting this deadline may result in the imposition of penalties. The Department of Labor’s model notice can be found at dol.gov/sites/dolgov/files/ebsa/laws-and-regulations/laws/cobra/premium-subsidy/notice-of-premium-assistance-expiration-premium.pdf.

Employers should contact their health plan insurers or COBRA administrators to confirm that they are sending the Notices out.

Please reach out if you have any questions or need assistance.

D.C. Moves Back Applicability Date of New Non-Compete Law

Daniel L. Morgan and Kevin M. Passerini

Earlier this year, Washington, D.C.’s mayor signed legislation, the “Ban on Non-Compete Agreements Amendment Act of 2020” (the “Act”), which imposes sweeping limitations on during-employment and post-employment non-compete agreements for employees in the District of Columbia. We previously reported on this legislation.           

Although the Act stated that it was to take effect following its publication in the District of Columbia Register, it also included the following provision: “This act shall apply upon the date of inclusion of its fiscal effect in an approved budget and financial plan.”

In other words, notwithstanding the Act’s definition of an earlier effective date, the Act was not slated to go into effect until the date it was included in D.C.’s 2022 budget—referred to as the “applicability date”—which most expected to occur by October 1, 2021. Shortly after passage, there were rumblings that Council members were considering amendments to the law—ranging from, among other things, a delay in the applicability date to exemptions for bona fide conflict of interest policies to income thresholds for the ban on non-competes, as opposed to an outright ban.

On August 10, 2021, the D.C. Council approved a budget—signed by D.C.’s mayor on August 23, 2021—that delays the applicability date of the Act until April 1, 2022. This postponement is significant because the Act’s limitations on non-competes is not retroactive, which provides employers with more time to continue to enter into non-compete agreements that satisfy the existing standards for determining the enforceability of non-compete restrictions rather than the far more limiting standards included in the Act.

Time will tell whether any substantive amendments materialize and modify the Act’s limitations prior to April 1, 2022.

California Supreme Court Requires That All Non-Discretionary Payments Must Be Included in Meal and Rest Period Premiums

Meal and Rest Period Premiums Must Include All “Non-Discretionary Payments” and Not Just Hourly Wages

Michael L. Ludwig

If an employer does not provide an employee with a compliant meal or rest period, Labor Code section 226.7(c) requires the employer to “pay the employee one additional hour of pay at the employee’s regular rate of compensation.” In Ferra v. Loews Hollywood Hotel, LLC, the California Supreme Court held that the “additional hour of pay” for meal or rest period violations must encompass all non-discretionary payments, as well as hourly wages. Thus, if an employer pays an employee non-discretionary incentive pay or bonuses, or commissions, those amounts must be included in determining the “hour of pay” the employer owes to the employee for a meal or rest period violation. (Note: The same rule applies to a “recovery” period, which is less common and refers to a cooldown period afforded an employee to prevent heat illness.)

Many employers have initiated practices of monitoring time records for apparent meal period violations and automatically paying an hour of pay accordingly. If the hour of pay was paid at an employee’s base hourly rate that did not include non-discretionary payments, then additional amounts may now be owed to the employee. Also, given the increased cost to an employer of a meal period premium, employers who provide employees flexibility regarding the scheduling of their meal periods may want to reconsider that flexibility and instead insist on strict meal period scheduling and reporting to avoid potential exposure.

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New York’s HERO Act: What Employers Need to Know; What Employers Need to Do Right Now

William J. Anthony

New York recently amended its Health and Essential Rights Act (“HERO Act”) and published its “Model Airborne Infectious Disease Exposure Prevention Plan.” While the Model Plan specifies that there is currently no airborne infectious disease outbreak, the HERO Act requires New York employers to take steps now to comply with the statute. “Airborne infectious disease” is defined as any infectious, viral, bacterial, or fungal disease that is transmissible through the air in the form of aerosol particles or droplets and is designated by the Commissioner of Health as a highly communicable disease that presents a serious risk of harm to the public health. While COVID-19 would have been so designated a year ago, it is not so designated at this time. Likewise, unless designated by the Commissioner of Health, the seasonal flu will not qualify. See the New York Department of Labor Airborne Infectious Disease Exposure Prevention Standard here: The Airborne Infectious Disease Exposure Prevention Standard (ny.gov). Nevertheless, employers cannot wait until an outbreak is declared to comply with the statute.

What Employers Need to Know

The Act has broad definitions of “employer,” “employee,” and “work site.” “Employer” includes any person, entity, business, corporation, partnership, limited liability company, or association employing, hiring, or paying for the labor of any individual. “Employee” means any person providing labor or services for remuneration within the state and without regard to immigration status. The definition includes independent contractors. A “work site” means any physical space, including vehicles, where work is performed and the employer has the ability to exercise control. A work site includes employer-provided housing and transportation. Thankfully, employees’ own homes and vehicles are not covered.

The Act prohibits employers from retaliating or taking adverse action against any employee who exercises rights under the statute; reports violations of the statute; reports airborne infectious disease exposure; or refuses to work where the employee reasonably believes, in good faith, that such work exposes employees to an airborne infectious disease due to working conditions inconsistent with the law. The law, however, requires the employee to first notify the employer of the problem and then give the employer an opportunity to cure it.

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Happy 4th of July, PA Employers! Budget Deal Skewers Planned Overtime Pay Expansion

Jason E. Reisman

As reported by the Pennsylvania Chamber of Business and Industry (see here), the planned significant increases to the salary threshold for exempt executive, administrative, and professional (“EAP”) employees under the Pennsylvania Minimum Wage Act (“PMWA”) will not go into place this fall.

As you may recall (see our blog post here), last October, the Pennsylvania Department of Labor and Industry (“DOLI”) finalized new regulations that set in motion periodic increases in the EAP exempt salary threshold under the PMWA. The goal was to dramatically expand the range of employees eligible for overtime pay. Those PA increases were designed to surpass the current federal salary threshold under the Fair Labor Standards Act (“FLSA”) and looked like this:

    • $35,568 ($684 per week) effective 10/3/2020 (which matched the FLSA threshold that was effective 1/1/2020—see our prior post here);
    • $40,560 ($780 per week) to be effective 10/3/2021;
    • $45,500 ($875 per week) to be effective 10/3/2022; and
    • On 10/3/2023, and every third year thereafter, the minimum salary will experience automatic adjustments.

However, as part of an overall budget deal reached last week between Governor Wolf and the Republican-controlled legislature, the DOLI regulations will be repealed. This “gift” comes through a one-sentence provision in the budget-related legislation.

As a result, at least for now, the PA salary threshold will not increase in October (or in the foreseeable future) and will continue to match the current threshold under the FLSA … unless/until the Biden administration’s Department of Labor follows through on its latest plan to further increase the federal salary level for the EAP exemptions.

Stay tuned—you just never know what the government might do, especially in the budget process.

OSHA’s COVID-19 Update—Only Guidelines for Most Employers

    On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) released its COVID-19 Emergency Temporary Standard (ETS) which outlines new requirements for most healthcare settings, along with guidance for non-healthcare employers. This post addresses OSHA’s guidance for non-healthcare employers. While employers were expecting more definitive directives from the federal government’s primary health and safety agency, they will, instead, have to consider whether and to what extent they should adopt the suggested measures to continue to promote a safe workplace.

Continue reading “OSHA’s COVID-19 Update—Only Guidelines for Most Employers”

Employers Need to Gear Up for ARPA’s COBRA Subsidy

Daniel L. Morgan

The Consolidated Omnibus Budget Reconciliation Act (“COBRA”) requires group health plans to allow qualified beneficiaries who would otherwise lose coverage due to certain events to elect to continue coverage under the plans by paying a monthly premium of up to 102 percent of the plan’s cost of providing the coverage. Qualified beneficiaries include employees and former employees and their spouses and dependents who were covered by the plan at the time of loss of coverage.

COBRA Premium Assistance

The American Rescue Plan Act of 2021 (“ARPA”) requires employers to subsidize the cost of COBRA continuation coverage, or such costs under state mini-COBRA laws where COBRA does not apply—with an assist from Uncle Sam (as described below). This subsidy must be provided for qualified beneficiaries who become eligible for and elect COBRA (or a state’s mini-COBRA) benefits as a result of an employee’s loss of health plan coverage due to an involuntary termination of employment (other than for gross misconduct) or a reduction of hours. ARPA refers to people who satisfy these requirements as “Assistance Eligible Individuals.”

The COBRA and mini-COBRA premium subsidy is available only from April 1, 2021, through September 30, 2021. However, the subsidy also applies to Assistance Eligible Individuals who became eligible for COBRA or mini-COBRA prior to April 1, 2021, but whose COBRA coverage period would have extended to overlap with the period from April 1 through September 30, 2021. (See below for more insight.)

An Assistance Eligible Individual loses the subsidy if they become eligible for coverage under another group health plan, such as a plan sponsored by a new employer or a spouse’s employer), or becomes eligible for Medicare. Individuals receiving this COBRA subsidy must notify their plans if they become eligible for coverage under another group health plan or become eligible for Medicare. Failing to provide this notice can result in the individual having to pay a tax penalty to the IRS.

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