New York City has issued the much-awaited guidance on its private-sector vaccine mandate. The mandate, which is scheduled to take effect on December 27, 2021, will apply to roughly 184,000 businesses in the City. There are several key takeaways from the guidance and accompanying FAQs.
Which Businesses Are Covered?
Any business that maintains or operates a workplace in New York City is covered. A “workplace” is any place where work is performed in the presence of another worker, or a member of the public.
What Must Employers Do to Comply?
Subject to the accommodation process described below, by December 27, 2021, employers must collect acceptable proof of at least one dose of COVID-19 vaccination from all individuals who perform services at New York City workplaces operated by the employer. This includes on-site independent contractors and nonresidents who work at New York City workplaces. (Workers who show proof of a first shot of a two-shot vaccine need to get their second dose within 45 days.)
The forms of acceptable proof have not changed. They include: a CDC COVID-19 vaccination record card or other official immunization record, New York City COVID Safe App showing a vaccination record, a New York State Excelsior Pass/Excelsior Pass Plus, or a CLEAR Health Pass. Accordingly, employers do not need to collect additional information from employees who have already provided proof of vaccination.
Outgoing New York City Mayor Bill de Blasio announced the country’s first vaccine mandate to apply to all private-sector workers. The mandate, which is scheduled to take effect on December 27, 2021, would apply to roughly 184,000 businesses in the City.
Acceptable proof of vaccination will include a CDC-issued vaccination card, the New York State Excelsior Pass, the Clear Health Pass, and the NYC COVID Safe App.
The City plans to issue enforcement guidance on December 15, 2021. The guidance is expected to include provisions for reasonable accommodations for religious and medical exemption requests. The announcement also includes a pledge of additional resources to support small businesses with implementation, though what will qualify as a “small business” or what those resources will be remains to be seen.
The Occupational Safety and Health Administration (“OSHA”) released this morning the much-awaited text of its emergency temporary rule regarding mandatory workplace vaccination and testing for the COVID-19 virus. The rule is expected to be published in the Federal Register tomorrow, November 5, 2021, and will be effective upon publication. The emergency rule will be in effect for an initial period of six months but may be extended by formal rulemaking.
The following FAQ addresses key questions and issues relating to the OSHA rule and its requirements:
Who is covered by the OSHA rule?
The OSHA rule applies to employers with 100 or more employees company-wide. The threshold is fluid and an employer will be covered by the rule if it has 100 or more employees at any time while the rule is in effect. An employer cannot, for example, look only to its headcount on the initial effective date of the rule. Once an employer is covered, it will remain covered for as long as the rule is in effect, even if its headcount falls below 100 employees.
On October 7, 2021, California Governor Newsom signed SB-331, also known as the “Silenced No More Act.” The Act substantially restricts the right of employers to include confidentiality provisions in separation agreements under existing California law beyond its #MeToo origins. Beginning on January 1, 2022, the new law will prohibit confidentiality provisions in separation agreements involving workplace harassment or discrimination on any protected basis, not just on sex. Any provision in violation of this prohibition will be against public policy and unenforceable.
Expanding #MeToo Protections
In 2018, California passed SB-820, or the STAND (Stand Together Against Non-Disclosure) Act, in response to the #MeToo movement. The law, now California Code of Civil Procedure section 1001, prohibits confidentiality provisions in separation agreements that prevent the disclosure of factual information regarding sexual assault, sexual harassment, workplace harassment, or discrimination based on sex.
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 Navigatorblog).
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.
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.
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.
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.
Under the newly enacted Section 11 of the Equal Pay Act, any private employer with more than 100 employees in Illinois must obtain an “equal pay registration certificate” from the Illinois Department of Labor. Employers must obtain this certificate within three years of the amendment’s effective date—i.e., by March 23, 2024—and then every two years thereafter.
To apply for this certificate, the employer must submit a $150 filing fee, the employer’s most recent EEO-1 report, and a report of all employees from the past calendar year “separated by gender and the race and ethnicity categories as reported in the business’s most recently filed Employer Information Report EEO-1, and report the total wages . . . paid to each employee during the past calendar year.”
As a reminder, California’s new pay data reporting for employers with 100 or more employees (and at least one employee in California) is due on or by March 31, 2021. You can read more about these new requirements here. California’s Department of Fair Employment and Housing (“DFEH”) has released helpful FAQs to walk employers through the filing requirements and required content. On February 1, 2021, the DFEH also published a 67-page California Pay Data Reporting Portal User Guide. While the portal itself will not be available until February 16, 2021, the user guide contains helpful information on pay data report content, differences and similarities between the California report and the EEO-1 report, and navigating the Pay Data Reporting Portal (once available), as well as sample reports. Please contact us with any questions.