Category: Policies and Handbooks

New Jersey Guidance Establishes That Employers Can Require That Employees Receive COVID-19 Vaccine to Enter Workplace

With COVID-19 vaccinations becoming more accessible to individuals, the question on many employers’ minds is whether the employer can now require its employees to be vaccinated in order to return to the workplace. On March 19, 2021, the New Jersey Department of Health (DOH) addressed this question and published guidance stating that an employer can require that its employees receive the COVID-19 vaccine to return to the workplace. The DOH guidance, however, does include exceptions to mandatory vaccination policies implemented by employers as follows: if an employee cannot get the COVID-19 vaccine because of a disability that precludes him or her from being vaccinated; where an employee’s doctor has advised the employee not to get the vaccine while pregnant or breastfeeding; or where an employee has a sincerely held religious belief, practice, or observance that precludes him or her from receiving the vaccine, an employer must provide a reasonable accommodation from its mandatory vaccine policy – unless doing so would impose an undue burden on its operations. In the event an employee seeks to be exempt from a mandatory vaccination policy for medical reasons (described above), his or her employer may request medical documentation from the employee to confirm the employee (i) has a disability precluding him or her from vaccination, or (ii) has been...

New York State Enacts Law Providing Paid Time Off for COVID-19 Vaccination

Governor Andrew Cuomo recently signed legislation S2558A/A3354-B granting all public and private employees in New York paid leave to obtain a COVID-19 vaccine. The new legislation, which is effective as of March 12, 2021 and expires on December 31, 2022, amends the New York Civil Service Law (with respect to public employees), along with the New York Labor Law, and provides public and private employees with up to four hours of paid leave per vaccine injection. In connection with this legislation, the New York Labor Law was amended to add Section 196-c, which provides that: New York employees must receive paid COVID-19 vaccine leave of up to four hours per vaccine injection. Thus, employees receiving a two-injection COVID-19 vaccine (such as those currently offered by Pfizer and Moderna) will receive up to eight hours of paid leave to obtain the vaccine. The “four hour” maximum does not apply to an employee subject to a collective bargaining agreement (CBA) providing a greater number of hours of leave to obtain the vaccine or where an employer authorizes additional time off for employees to receive the vaccine. The leave must be paid at an employee’s regular rate of pay. The leave cannot be charged against “any other” employee leave. Accordingly, employers cannot require employees to use other available...

OSHA Releases New Workplace Guidance on COVID-19

On January 21, 2021, President Biden issued the Executive Order on Protecting Worker Health and Safety (“Executive Order”) directing, among other things, that the federal Occupational Safety and Health Administration (OSHA) issue, within two weeks, revised guidance to employers on workplace safety during the COVID-19 pandemic, consider establishing emergency temporary standards for workplace COVID-19 protections, and, if needed, issue such standards by March 15, 2021. The Executive Order also requires that OSHA launch a national program to focus its enforcement efforts on those violations that place the greatest number of employees at serious risk or conflict with anti-retaliation principles and publicize its efforts through a multilingual outreach campaign to inform employees of their rights under OSHA’s applicable regulations, with special emphasis on communities hit hardest by COVID-19. On January 29, 2021, as directed by the Executive Order, OSHA issued new guidance, entitled Protecting Workers: Guidance on Mitigation and Preventing the Spread of COVID-19 in the Workplace (the “Guidance”). The Guidance, which is supplemented by industry-specific measures, provides recommendations to assist employers in creating and maintaining safe and healthy workplaces, while also describing OSHA’s current safety and health standards. The new Guidance is not substantially different from previous OSHA guidance, but it sets a different tone – signaling greater support for OSHA enforcement. Importantly, the Guidance...

EEOC Injects Guidance on COVID-19 Vaccine Practices in the Workplace

In the wake of the Food and Drug Administration’s Emergency Use Authorization of the Pfizer and Moderna COVID-19 vaccines, the Equal Employment Opportunity Commission (EEOC) addressed a question weighing heavily on the minds of businesses and their employees: can an employer require its employees to get vaccinated? The EEOC’s December 16, 2020 guidance answered that question in the affirmative, but, as with most pronouncements during the pandemic, the issue is far from simple, and employers must pay close attention to what the guidance says, and what it does not say, when crafting their COVID-19 vaccination policies. The EEOC Guidance characterizes an employer-mandated vaccine as an Americans with Disabilities Act (ADA)-permitted, safety-based qualification standard, akin to “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” Employers can require employees to get a COVID-19 vaccine, but must allow for exceptions where employees are unable to receive the vaccine because of either disabilities or sincerely held religious beliefs. Employees with Disabilities: Where a mandatory vaccination policy would screen out an individual with a disability, the employer must show that the unvaccinated employee would pose a direct threat in the workplace due to a “significant risk of substantial harm to the health or safety of the individual or...

UPDATE: Mandatory Nondiscrimination Policies, Training and Reporting: Proposed New Jersey Legislation Would Impose New Obligations on Employers and Lengthen the Limitations Period

On February 18, 2020, Governor Phil Murphy continued his quest to enhance employee protections in New Jersey by announcing proposed legislation aimed at strengthening New Jersey’s already-expansive prohibitions against harassment and discrimination in the New Jersey Law Against Discrimination (NJLAD). According to the proposed legislative findings, the bill was designed to “reject the norms of yesterday that overlooked workplace harassment and discrimination as business as usual.” The proposed legislation comes on the heels of a report released by the New Jersey Division on Civil Rights (DCR) this month, Preventing and Eliminating Sexual Harassment in New Jersey, the result of a trio of public hearings held in September 2019. Employers are already scrambling to keep up with legislation directed at protecting call center employees, cracking down on misclassification, and expanding the rights of employees affected by a mass layoff or plant closing. Here are the highlights from the proposed legislation: Expanded Definition of Employee. Domestic workers and unpaid interns would be added to the definition of “employees” under the NJLAD and there are specific provisions governing domestic workers. Extended Time for Filing Claims. The current two-year statute of limitations applicable to claims brought under the NJLAD would be extended to three years. And, the time to file a complaint with the DCR would be extended from...

NYC Council Passes Legislation Barring Pre-employment Marijuana Testing

On April 9, 2019, the New York City legislature passed legislation that would amend Section 8-107 of the New York City Administrative Code to prohibit employers from testing job applicants for marijuana or tetrahydrocannabinols (THC) – the active ingredient in marijuana. Specifically, the law states, “it shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.” The legislation creates an exception for individuals who apply to specifically defined roles; such as police officers or peace officers, those requiring a commercial driver’s license, those requiring the supervision or care of children, medical patients, or other vulnerable persons, and those with the “potential to significantly impact the health or safety of employees or members of the public.” Furthermore, the law would not apply to drug testing that is required pursuant to: (a) regulations promulgated by the federal department of transportation; (b) federal contracts; (c) a federal or state law, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or (d) a collective bargaining agreement. Lastly, it should be noted that the bill does not bar marijuana testing...

2019 Rings in Further Protections for Delaware and Philadelphia Employees

Before 2018 wrapped up, the year of the #MeToo movement, the Delaware and Philadelphia legislatures worked to ensure the passage of employee-friendly legislation. While Delaware’s new law focuses on sexual harassment,  Philadelphia has turned its focus on the work schedules for those employed in service industries. Delaware, like many other states in 2018, passed legislation to strengthen workplace harassment laws. The legislation was signed into law in August 2018, and went into effect on January 1, 2019. Delaware’s Discrimination in Employment Act has now been amended to include provisions specifically dedicated to sexual harassment that apply to employers with at least four employees in the state. It should be noted that Delaware’s law includes unpaid interns, applicants, joint employees and apprentices within its definition of employee. In addition to defining sexual harassment, the law provides that employers will be liable for sexual harassment if: (1) A supervisor’s sexual harassment results in a negative employment action of an employee; (2) The employer knew or should have known of a non-supervisory employee’s sexual harassment of an employee and failed to take appropriate corrective measures; or (3) A negative employment action is taken against an employee in retaliation for the employee filing a discrimination charge, participating in an investigation of sexual harassment, or testifying in any proceeding or...

Anti-Harassment Policies and Training: What New York Employers Need to Know Now

New York State As part of the 2018-2019 New York State Budget (“the Law”), employers within New York State are required to implement an anti-harassment policy by October 9, 2018 and implement an anti-harassment training program for employees and supervisors. In connection with these requirements, the New York State Department of Labor (NYSDOL), in consultation with the New York State Division of Human Rights, recently released drafts of its model anti-harassment policy, complaint form, interactive training program, and FAQs (“Anti-Harassment Materials”). Employers may adopt these Anti-Harassment Materials or develop their own policies and programs, provided they comply with or exceed the minimum standards set forth in the Law for the model policy and training program. The NYSDOL accepted comments on the Anti-Harassment Materials through September 12, 2018. Final documents are expected soon. The seven-page template policy is extensive and covers the topics required by the Law, such as: a statement that sexual harassment is a form of “employee misconduct” an explanation of sexual harassment specific examples of harassing conduct details concerning external avenues of complaints for employees (e.g., local, state, and federal anti-discrimination agencies and the local police in cases of assault) prohibitions against retaliation reporting procedures supervisory responsibilities detailed information about the investigation process (including document preservation requirements) a statement that action will be...

New Fair Credit Reporting Act – Summary of Rights Forms

The Consumer Financial Protection Bureau (“CFPB”), the Federal agency that administers the Fair Credit Reporting Act (“FCRA”), just issued new Summary of Rights forms. An employer conducting a background check on an employee or applicant through a consumer reporting agency must provide such employee or applicant a Summary of Rights notice when first obtaining consent to conduct the background check — together with a written disclosure about the use of the background check — and when taking adverse action based on the background check. Starting today, September 21, 2018, the new Summary of Rights form must be used. The CFPB also issued forms called Summary of Consumer Identity Theft Rights that must be provided to consumers by credit reporting agencies when the subject of an identity theft. A new law also requires credit reporting agencies to implement a “national security freeze” at no cost to a consumer that restricts prospective lenders from access to a consumer’s credit report. Other changes include a one year (instead of 90 days) notification of a fraud alert in a consumer’s file. The notification informs a lender that the consumer may have been the victim of identity theft, for which the lender must take additional steps to verify the identity of anyone attempting to obtain credit in the consumer’s name....

New York Employers Fall Review

In 2018, employers in New York encountered several important changes, including in the areas of anti-harassment and scheduling, warranting a Fall review of current employment practices and preparation for next year’s developments. Employers should take the time now to review current practices and prepare for the imminent future. NEW YORK CITY’S TEMPORARY SCHEDULE CHANGE LAW New York City’s Temporary Schedule Change Law (“TSC Law”) became effective July 18, 2018, and requires private employers to provide eligible employees with an allowance of a “temporary change” to their usual work schedule for certain qualifying “personal events” for up to two occasions per year (i.e., one business day twice per year or two business days on one occasion). Eligible employees are those who work at least 80 hours a year in New York City and have been employed by their employer for 120 or more days, with limited exceptions, including employees covered by collective bargaining agreements waiving the law. Temporary schedule changes may include paid time off, use of short-term unpaid leave, permission to work remotely, or working hour swaps or shifts. Qualifying “personal events” include: (a) an employee’s need to: (i) care for a minor child or care recipient (i.e., a person with a disability who is a family or household member and relies on the employee...