This annual survey conducted by BTI Consulting Group is the “gold standard” used by corporate counsel and law firms alike to identify leading attorneys who “stand above all the others in delivering the absolutely best in client service.” The honorees hail from over 15 industry segments and are notably recognized for being practical, savvy, “in the know,” able to deal with complexity, available, and nimble, as defined by BTI’s definition of a Client Service All-Star. For more information, please visit BTI Client Service All-Stars.
To read Jason’s and Justin’s BTI profiles, as published in BTI’s 2022 Client Service All-Stars, please visit our website.
The U.S. Equal Employment Opportunity Commission (“EEOC”) released updated guidance on December 16, 2020, to address the impact of COVID-19 vaccinations in the workplace. The guidance indicates that employers may require COVID-19 vaccinations for workers to be able to return to the workplace as long as employers comply with Title VII of the Civil Rights Act (“Title VII”), the Americans with Disabilities Act (“ADA”), and Title II of the Genetic Information Nondiscrimination Act (“GINA”).
Here are a few highlights:
Administration of the vaccine by the employer (or a contractor on the employer’s behalf) is not a medical examination and does not implicate the ADA, GINA, or Title VII. Employers must ensure, however, that all vaccine pre-screening questions are “job-related and consistent with business necessity” and do not request genetic information.
Asking or requiring employees to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry under the ADA because it is not likely to reveal information about any disability, nor does it impact GINA. Subsequent questions, such as “why did an employee not receive the vaccine,” would implicate concerns under the ADA and GINA, however. Employers must therefore also ensure that follow-up questions are “job-related and consistent with business necessity” and avoid asking questions about genetic information or family medical history.
Employers must provide reasonable accommodations, subject to “undue hardship” analysis, to workers who are unable to get the vaccine because of a disability (under the ADA) or sincerely held religious beliefs (under Title VII).
An employer may physically preclude an employee who cannot be vaccinated from entering the workplace when that employee poses a “direct threat to the health or safety of individuals in the workplace,” which threat cannot be eliminated by a reasonable accommodation. However, an employer may not automatically terminate the employment of that worker. Employers must consider what protections the employee may have under relevant EEO laws or other federal, state, and local authorities.
We encourage employers working on their return-to-work strategies to review the EEOC guidance as they consider how and whether to implement COVID-19 vaccination requirements. If you have any questions or need guidance specific to your workplace, please do not hesitate to contact Blank Rome for more information.
If you have googled “California” and/or “COVID‑19” this week, you undoubtedly know that many Golden State counties are again on the verge of shutdown as the state has now passed one million COVID‑19 cases. You also likely know that California’s Division of Occupational Safety and Health (“Cal-OSHA”) just enacted new emergency temporary COVID‑19 safety regulations that went into effect on Monday, November 30.
As with too many California rules, the new regulations are long on technical requirements and short on practical guidance. Cal-OSHA is supposed to meet this month to offer further clarification, and the state has at least published FAQs and an “employer one-pager” to cover the more basic terms and definitions; but in the meantime, below is a high-level snapshot of what you need to know now.
The new regulations cover nearly all California employers with three limited exceptions: (1) workplaces with just one employee who does not have contact with other people; (2) employees who are working from home; and (3) employees covered by Cal-OSHA’s Aerosol Transmissible Disease standard, which applies to certain health care employees and laboratories. For employees that split their time between home and the employer’s workplace, the regulations only apply when the employee works at the workplace or is exposed at work, not when working from home.
As many California businesses have done already, employers must develop a written COVID-19 Prevention Program. Cal-OSHA has posted a Model COVID-19 Prevention Plan for employers to review and adapt.
On or by March 31, 2021, (and each March 31 thereafter), private employers in California with more than 100 full-time and part-time employees that are required to file employer information reports with the federal government (“EEO-1” reports) will be required to submit detailed data to California’s Department of Fair Employment and Housing (“DFEH”) regarding the race, ethnicity, and gender of employees in the 10 job categories used in the federal EEO-1 form. Specifically, SB 973 requires employers to report: (1) the number of employees by race, ethnicity, and gender in each of these job categories (looking at any single pay period between October 1 and December 31 of the preceding year); (2) the number of employees by race, ethnicity, and gender whose annual earnings fall within each of the pay bands used by the Bureau of Labor Statistics; (3) the total number of hours worked by each employee counted in each pay band (despite the fact that this information is not commonly kept for exempt workers); and (4) the employer’s North American Industry Classification System (“NAICS”) code. If an employer has more than one establishment in California, it is required to submit a report for each establishment, as well as a consolidated report that includes all employees.
And, what will the government do with this data? The stated intent of the law is to identify and remedy pay inequities and strengthen current equal pay laws. The new legislation permits the DFEH to use the data collected to prosecute complaints alleging discriminatory wage practices under the Equal Pay Act (California Labor Code § 1197.5). Moreover, the DFEH is authorized to share the reports with the Division of Labor Standards Enforcement (“DLSE”), so the DLSE can identify wage patterns and institute litigation to challenge suspected discriminatory practices. In other words, rather than the government responding to complaints from employees, or investigating targeted industries, it will now evaluate all data submitted by large employers and decide whether enforcement action is warranted.
The legislation provides that reported data will be kept confidential and not subject to disclosure under the Public Records Act. The DFEH, however, may compile, publish, and publicize aggregate reports based on the data it receives, so long as the aggregate reports are reasonably calculated to prevent the association of any data with any individual business or person. The data may be used for investigation and enforcement proceedings by the DFEH and the DLSE under the Fair Employment and Housing Act and Labor Code, respectively. Of course, parties to private litigation will likely seek discovery of reported data as well.
SB 973 essentially mirrors an Obama-era pay data collection rule issued by the Equal Employment Opportunity Commission, which was later stayed by the Trump administration. Of course, it remains to be seen whether our new administration will revive these collection efforts at the federal level, but for now, California remains willing to carry the torch.
If you have any questions about your pay practices or these new California reporting requirements under SB 973, please contact a member of our Labor & Employment team.
In order to make tax-deductible contributions to a health savings account, an individual must be covered under a high deductible health plan and have no disqualifying health coverage.
High deductible health plans are required to have a minimum annual deductible and a maximum out-of-pocket expense limit.
In a notice issued today, Notice 2020-15, the Internal Revenue Service (“IRS”) stated that “due to the unprecedented public health emergency posed by COVID-19,” an individual would not lose their ability to make tax-deductible health savings account contributions because they are covered under a plan that otherwise qualifies as a high deductible health plan that provides for the payment or reimbursement of expenses (including expenses for care and the purchase of items) “related to testing for and treatment of COVID-19 prior to the satisfaction of the applicable minimum deductible.”
The practical effect of the IRS Notice is that, if a health plan agrees to pay COVID-19 testing or treatment expenses under a high deductible health plan, without requiring individuals covered under the plan to have first met the annual minimum deductible, participants in the plan will not lose their eligibility to make deductible health savings account contributions.
In light of indications that health insurers may be willing to waive deductibles and co-pays for COVID-19 expenses, the Notice comes as timely and welcome news.
Recently, the New York City Council passed a bill aiming to protect employees seeking temporary changes to their work schedules in certain circumstances. The bill permits employees to make two temporary schedule changes per calendar year, such as paid time off, working remotely, swapping or shifting work hours and unpaid leave when certain personal circumstances arise, including circumstances that would constitute a basis for permissible use of safe time or sick time. Continue reading “Additional Protections for Temporary Schedule Changes for Employees under New York City Law”
In recent years, employers have used unpaid interns to perform many duties otherwise completed by paid employees. Determining whether to classify a worker as an unpaid intern or employee under the Fair Labor Standards Act (“FLSA”) can be tricky for employers—and getting it wrong can have, and has had, serious consequences. With the recent boom in class action litigation by interns claiming misclassification, employers have to be careful.
Blank Rome’s Labor & Employment practice is pleased to announce the launch of our new blog, Blank Rome Workplace, which will offer insight and analysis on emerging employment issues across varying industries, ranging from new regulatory developments to litigation and enforcement trends.
“Labor and employment issues are complicated and evolving at an ever-quickening pace. Every day, federal, state, and local legislatures and courts change the ground rules for properly employing people,” said Scott Cooper, Partner and Co-Chair of Blank Rome’s Labor and Employment practice. “Blank Rome Workplace will provide timely updates, analysis, and practical advice to clients, outside counsel, and human resource executives seeking to navigate the ever-changing landscape.” Continue reading “Blank Rome Launches Labor & Employment Blog”