Philadelphia City Council Passes Ordinance Requiring Paid Leave for COVID-19 Leave

Rebecca J. Reist

On March 3, 2022, the Philadelphia City Council passed an ordinance amending the City’s Public Health Emergency Leave Law that requires many Philadelphia employers to provide their employees with paid leave for absences related to COVID-19. Mayor Jim Kenney signed the bill on March 9, 2022, and it went into effect immediately after signing. The ordinance provides that employees may use this new paid COVID-19 leave for their inability to work based on one or more of the following reasons:

      • the employee’s presence on the job or in the community would jeopardize the health of others because of the employee’s exposure to COVID-19, or because the employee is exhibiting symptoms, regardless of whether the employee has been diagnosed with or has tested positive for COVID-19;
      • to care for a family member who has been exposed to COVID-19 or who exhibits symptoms that may jeopardize the health of others, regardless of whether the family member has been diagnosed or having tested positive for COVID-19;
      • to self-isolate because the employee was diagnosed or tested positive for COVID-19, because the employee is experiencing symptoms of COVID-19, or to seek medical care if experiencing symptoms of an illness related to COVID-19;
      • to care for a family member who is self-isolating because the family member was diagnosed or tested positive for COVID-19, because the family member is experiencing symptoms of COVID-19, or to seek medical care if experiencing symptoms of an illness related to COVID-19;
      • to care for a child if their school has been closed or their childcare provider is unavailable due to precautions taken in response to COVID-19;
      • to obtain a COVID-19 vaccination or booster; or
      • to recover from any side effect related to a COVID-19 vaccination.
Continue reading “Philadelphia City Council Passes Ordinance Requiring Paid Leave for COVID-19 Leave”

Congress Passes Bipartisan Legislation Prohibiting Mandatory Arbitration of Sexual Harassment Claims

Alix L. Udelson

President Biden is expected to soon sign into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”), which was recently passed by both houses of Congress. President Biden has long supported measures to limit mandatory arbitration clauses in general and specifically endorsed the Act, which received bipartisan support.

The Act will amend the Federal Arbitration Act to limit every employer’s ability to mandate predispute arbitration of an employee’s claims of sexual harassment or sexual assault. The salient language provides:

Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

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Blank Rome’s Jason E. Reisman and Justin A. Chiarodo Named BTI 2022 Client Service All-Stars

Blank Rome LLP is pleased to announce that Jason E. Reisman (left), partner and co-chair of the firm’s Labor & Employment practice group, and Justin A. Chiarodo (right), partner and chair of the firm’s Government Contracts practice group, have been named BTI 2022 Client Service All-Stars

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.

As Restrictions Are Lifted across the Country, California Reinstates Supplemental Paid Sick Leave for COVID-19

Caitlin I. Sanders and Alix L. Udelson

On February 9, 2022, California Governor Newsom signed into law Senate Bill (“SB”) 114.

The law reinstates the COVID-19 supplemental paid sick leave (“CSPSL”) requirement for companies with more than 26 employees. Like California’s prior CSPSL iteration, which expired on September 30, 2021, the new law provides up to 80 hours of CSPSL for full-time employees for certain COVID-19-related reasons. The law takes effect immediately, but the obligation to provide CSPSL does not begin until February 19, 2022. The law is currently set to remain in effect through September 30, 2022.

Here are the pertinent details that employers need to know:

Covered Employers: SB 114 covers all employers in California with more than 25 employees. Employers with 25 or fewer employees are not covered.

Covered Employees: SB 114 covers employees who are unable to work or telework due to any of the reasons that qualify for CSPSL (detailed below).

Amount of Leave: Full-time employees are entitled to up to 80 hours of CSPSL for qualifying reasons. Part-time employees are provided a prorated amount of this benefit. This leave is in addition to regular paid sick leave already required under California law.

Continue reading “As Restrictions Are Lifted across the Country, California Reinstates Supplemental Paid Sick Leave for COVID-19”

Supreme Court Blocks OSHA Vaccine-Or-Test Rule

Frederick G. Sandstrom 

In a much-anticipated decision, the United States Supreme Court has blocked the Occupational Safety and Health Administration’s (“OSHA”) “vaccinate or test” Emergency Temporary Standard (“ETS”). The Court’s January 13, 2022, decision means that the ETS is stayed pending a hearing on the merits of the challenges to its validity. However, in practical terms, it is likely a death-knell for the ETS, which was set to expire in May 2022.

The Court’s per curiam opinion, written on behalf of the six conservative-leaning justices, held that the ETS exceeded OSHA’s statutory power because it sought to broadly regulate “public health” and was not directed specifically at workplace safety. The Court explained: “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.”

In a concurring opinion joined by Justices Thomas and Alito, Justice Gorsuch elaborated that the “major questions doctrine” requires Congress to delegate clearly and specifically to an agency the authority to mandate Covid-19 vaccination or testing. Absent a clear and specific delegation, the Constitution reserves that power to “the states and Congress, not OSHA.”

The Court’s three liberal-leaning justices dissented. The dissenting opinion, co-authored by Justices Breyer, Sotomayor, and Kagan, asserted that the ETS fell squarely within OSHA’s emergency power because it was necessary to “protect employees” from a “grave danger” to workplace safety. The dissent argued further that, even if the merits of the ETS were reasonably in dispute, a stay would still be inappropriate because the “public interest” and “balance of harms” supported allowing the ETS to remain in effect. In conclusion, the dissent accused the majority’s decision of “undercut[ting] the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”

A final note: While fatal to the ETS, the Court’s decision likely is not the final word on broad workplace safety responses to the Covid-19 pandemic. Now that OSHA has been blocked from taking action, it is reasonable to expect that some state workplace safety agencies will become more active in adopting their own measures aimed at Covid-19 safety in the workplace. Stay tuned for more on the development of any new state-level rules and also on what happens with the ETS as it heads back to the United States Court of Appeals for the Sixth Circuit.

Employers Await Supreme Court Decision on OSHA ETS Appeal

Frederick G. Sandstrom and Nicole N. Wentworth

On Friday, January 7, 2022, the United States Supreme Court held oral argument on the Occupational Safety and Health Administration’s (“OSHA”) much-litigated “vaccinate or test” Emergency Temporary Standard (“ETS”). Absent action by the Court, compliance with the ETS is set to  commence today, Monday, January 10, though OSHA has said it will not issue citations to employers who have made a good faith attempt to comply with the testing requirements. The Court is expected to issue a decision promptly.

The argument was originally scheduled for one hour but ran nearly two hours due to extensive questioning by the justices. The Court’s six conservative-leaning justices all appeared skeptical of the enforceability of the ETS, but their questions suggested a divide in the legal basis for their views. Justices Thomas, Alito, and Gorsuch’s questioning suggested that they viewed the mandate as clearly outside OSHA’s authority to regulate workplace safety. Justices Roberts, Kavanaugh, and Barrett suggested a narrower view in their questioning, indicating that they may see OSHA as having the authority to impose a narrower emergency mandate targeted at specific fields or industries that present unique safety risks. Justices Roberts, Kavanaugh, and Barrett also suggested that only Congress has the power to impose a broad federal vaccine mandate (like the current ETS) and that in the absence of congressional action, the power to impose an economy-wide mandate was reserved to the states. The Court’s liberal-leaning justices—Justices Breyer, Sotomayor, and Kagan—all expressed strong support for the ETS in their questioning.

During questioning, Justice Alito asked the Solicitor General (representing the federal government) if there was any objection to a brief administrative stay of the January 10 compliance deadline pending the Court’s decision on the appeal. The Solicitor General largely conceded that a brief stay would be appropriate.

We will post a prompt update when the Court issues a decision on the ETS appeal. In the meantime, covered employers should continue to proceed with good faith preparations to implement the requirements of the ETS.

New York City Jumps on the “Salary Transparency Bandwagon”


Jason E. Reisman
 and
Valerie D. Ringel

New York City Council passed legislation on December 15, 2021, that would require employers in NYC (who have at least four employees) to include the minimum and maximum salary range for a position in any posting/advertisement for a job, promotion, or transfer opportunity. The bill will go into effect 120 days after it becomes law, unless the new mayor, Eric Adams, vetoes it by January 14, 2022.

The bill makes it a discriminatory practice under the NYC Human Rights Law (“NYCHRL”) to fail to include such salary information in a posting/advertisement. As set forth in the text of the bill:

It shall be an unlawful discriminatory practice for an employment agency, employer, employee or agent thereof to advertise a job, promotion or transfer opportunity without stating the minimum and maximum salary for such position in such advertisement. In stating the minimum and maximum salary for a position, the range may extend from the lowest to the highest salary the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.

The bill gives the NYC Commission on Human Rights the power to issue rules to implement (and hopefully further clarify) the new law. Among the issues that need clarity are the definition of “salary” and whether the requirement applies to all jobs advertised in New York City or only for postings for jobs physically located in NYC. While the “summary” of the bill on the NYC City Council website (here) references it applying to “any position located within New York City,” NYC guidance has in the past expanded on the interpretation of the law.

The Return of the OSHA ETS: What Now and What’s Next?

Frederick G. Sandstrom

On December 17, the U.S. Court of Appeals for the Sixth Circuit revived the federal Occupational Safety and Health Administration’s much-litigated “vaccinate or test” Emergency Temporary Standard (“ETS”). The Sixth Circuit’s divided decision lifted the nationwide stay on enforcement of the ETS that had previously been ordered by the U.S. Court of Appeals for the Fifth Circuit. The litigation will now move to the U.S. Supreme Court, which has already received eight separate petitions seeking to stay the Sixth Circuit’s decision. The Supreme Court has ordered the federal government to respond to the petitions by December 30.

OSHA has moved quickly to reinstate the ETS. On December 18, OSHA released new guidance on the timing for compliance with, and enforcement of, the ETS’s requirements. Broadly speaking, the guidance states that: (1) OSHA will not issue citations for noncompliance with the ETS prior to January 10, 2022; and (2) OSHA also will not issue citations for noncompliance with the ETS’s testing requirements prior to February 9, 2022, provided that an employer is “exercising reasonable, good faith efforts to come into compliance.”

OSHA has promised more detailed guidance. And there will likely be more twists and turns as the appeals from the Sixth Circuit’s decision proceed to the Supreme Court. For now, however, covered employers that paused their efforts to comply with the ETS in light of the stay, should take steps to resume their efforts to continue down the path to compliance. The December 18 guidance suggests strongly that OSHA expects covered employers to do the following by the initial January 10 compliance deadline: (1) adopt a written vaccination policy; (2) confirm each employee’s vaccination status, including proof of vaccination for vaccinated employees; (3) provide paid time off for unvaccinated or partially vaccinated employees to be vaccinated; and (4) require face coverings and other protective measures for unvaccinated employees working on-site. The ETS also contains informational requirements, including an obligation for covered employers to provide employees with a copy of the CDC’s publication on “Key Things to Know About COVID-19 Vaccines” (a copy of which can be obtained here).

We will continue to update you on further developments regarding the ETS as the appeals process continues before the Supreme Court.

“Key to NYC”: New York City Announces Vaccine Mandate Guidance

Anthony A. Mingione

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.

Continue reading ““Key to NYC”: New York City Announces Vaccine Mandate Guidance”

Petition…GRANTED (!): An “Epic” PAGA Showdown Now Looms at High Court

Caroline Powell Donelan

On December 15, the U.S. Supreme Court changed course and announced that it would decide whether representative claims brought under California’s Private Attorneys General Act (known as “PAGA”) can be waived by an otherwise enforceable arbitration pact—taking on a years-long conflict between the California Supreme Court’s 2014 Iskanian v. CLS Transportation Los Angeles, LLC decision (holding that arbitration agreements cannot bar PAGA claims) and the U.S. Supreme Court’s own 2018 Epic Systems Corp. v. Lewis decision (holding that courts must enforce arbitration agreements under the Federal Arbitration Act (“FAA”), including those containing class/collective action waivers). You can read more about the Epic Systems holding in Epic Shift: Supreme Court Enforces Class Action Waivers in Arbitration Agreements and The Epic Systems Decision: Where Do Employers Go from Here?

Critics of Iskanian and its progeny essentially argued to the U.S. Supreme Court that it allowed an end run around the FAA, which preempts any state law that restricts the enforceability of arbitration agreements.

The petition was filed on behalf of Viking River Cruises, one of many filed by employers across the Golden State this year, each asking the U.S. Supreme Court to weigh in on the Iskanian versus Epic Systems PAGA conflict.

The Blank Rome team will be watching this one closely and with bated breath, as the Supreme Court’s ruling will impact thousands of businesses and have fundamental and profound effects on representative litigation both in California and across the United States.

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