Special Edition: Recent Developments in Brief

In recent weeks, a number of important developments have taken place in the labor and employment field, including new COVID19-related quarantine and safety updates, a freeze of previously adopted DOL rules concerning independent contractors, and a resolution of an important case out of Massachusetts relating to enforcement of dress code violations in the workplace. Read on for some key takeaways and predictions. As always, we are here to address any questions you may have about these and any other labor and employment issues you may have.

NY Quarantine Rule Update for Vaccinated Individuals

On February 10, 2021, the CDC issued updated guidance in connection with quarantine rules for persons that have been fully vaccinated against COVID-19 and then subsequently exposed to an infected individual. Vaccinated persons with an exposure to someone with suspected or confirmed COVID-19 are not required to quarantine, if (1) they are fully vaccinated (i.e., ≥2 weeks following receipt of the second dose in a 2-dose series, or ≥2 weeks following receipt of one dose of a single-dose vaccine), (2) they are within 3 months following receipt of the last dose in the series, and (3) they have remained asymptomatic since the current COVID-19 exposure.

On February 11, 2021, NY Governor Andrew Cuomo and NY Health Commissioner Dr. Howard Zucker issued a statement that New York State intends to update its quarantine requirements to reflect the recent CDC guidance. One implication may be that some vaccinated employees who previously had been entitled to time off under the NYS Quarantine Leave Law would no longer qualify for leave thereunder. We expect the NY quarantine and leave rules to be updated shortly to reflect this new development.

Independent Contractors May Receive Further Scrutiny

As predicted by many commentators, the implementation of the January 2021 DOL rule clarifying the distinction between employees and independent contractors was frozen by the Biden Administration pending further review in late January. The Biden Administration seems likely to move toward a federal ABC test for independent contractor classification, which is currently in force in e.g., California and NJ. As a general overview, the ABC test requires the employer to show that (1) the worker is free from control and direction of the hiring entity both under the performance contract and in fact, (2) the worker performs work that is outside the usual course of the hiring entity’s business, and (3) the worker is customarily engaged in an independently established trade, occupation or business of the same nature as that is involved in the work performed.

The Biden platform specifically argues for the implementation of a variation on the ABC test at the federal level. Employers should review the current independent contract arrangements and prepare for increased scrutiny in this arena.

OSHA Focuses on COVID-19 in the Workplace

On January 29 2021, the Occupational Safety and Health Administration (“OSHA”) issued additional new guidance relating to COVID-19 workplace safety. Although OSHA specifically states that the new guidance is issued “to help [employers and workers] identify risks” and “determine appropriate control measures” and does not create “a standard or regulation” or “new legal obligations”, employers should review the new guidance carefully to ascertain whether their practices are in conformity with the 16 elements referenced in the guidance. It is critical to remain on top of this development since it is likely that new emergency standards which OSHA is tasked with by EO 13999 to issue by March 15, 2021 are likely to incorporate many if not all principles spelled out in this guidance.

Among the various elements are the following: (1) assignment of a workplace coordinator responsible for COVID-19 issues, (2) accommodation and protection of works in higher risk categories, (3) telework opportunities to minimize negative impact of quarantine and isolation on workers, (4) recording and reporting COVID-19 infections and deaths, and (5) making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees.

Inconsistent Dress Code Enforcement May Not Violate Title VII

On February 5, 2021, U.S. District Judge Allison D. Burroughs dismissed nearly all Title VII discrimination and retaliation claims in connection with Whole Foods disciplining employees for wearing Black Lives Matter masks in violation of Whole Foods’ dress code policy in Frith, et al. v. Whole Foods Market, Inc., Civ. Act. No. 20-cv-11358-ADB (D. Mass. Feb. 5, 2021). Applying Bostock v. Clayton Co., 140 S. Ct. 1731 (2020), the court found that “a straightforward application of Bostock’s rationale to this case leads to the conclusion that Plaintiffs have failed to state a claim for Title VII discrimination.” Specifically, the court determined that the plaintiffs “have not alleged that Defendants would have treated any individual plaintiff differently if that plaintiff were of a different race[; t]o the contrary, their allegations demonstrate that Defendants treated all employees wearing BLM attire equally, regardless of race.”

Given the stage at which this case was dismissed, Judge Burroughs accepted as true certain allegations by the Plaintiffs that Whole Foods did not frequently enforce its dress code policy, but did find that Title VII applies to race-based discrimination and does not apply to inconsistent, content-based application of a dress code policy. Specifically, Judge Burroughs observed that “[p]utting aside the wisdom and fairness of Defendants’ decision to aggressively discipline employees for wearing BLM attire, particularly when Defendants purportedly allowed employees to wear clothing with other messaging, inconsistent enforcement of a dress code does not constitute a Title VII violation because it is not a race-based discrimination and because Title VII does not protect free speech in private workplace” (emphasis added). Under the facts of this case, the employees affected by Whole Foods’ discipline decisions came from a variety of racial backgrounds.

To the extent this decision can be extrapolated, the case suggests that employers may engage in viewpoint discrimination through enforcement of a dress code, so long as they are consistent on the viewpoint being disfavored, not the race of the individual(s) expressing the viewpoint. At the same time, if employers choose to establish a dress code policy, the best practices approach is to take care to apply and document discipline in connection with dress code violations uniformly and without regard to social or political message promoted by dress code deviations to avoid disparate impact claims.

Proposed Paid COVID-19 Vaccination Leave for NY and Federal Employees

Under New York Governor Andrew Cuomo’s proposed FY 2022 budget, both private and public NY employers will soon likely be required to provide for four hours of paid leave for up to two COVID-19 vaccinations for each employee. The proposed leave is not going to take effect until the NY legislature approves the budget and Governor Cuomo signs it, which likely won’t happen until late March. New York’s fiscal year begins on April 1, 2021.

Additionally, at the federal level, a group of congressional lawmakers have recently approached the Office of Personnel Management with a proposal for paid administrative time off to receive the COVID-19 vaccine for federal employees. The proposal also seeks to supplement such leave with “a couple of additional days of paid sick leave for any post-vaccination symptoms.”

It is likely that many states will follow suit in one way or another with their own variations on this type of leave. Some employers have already taken a lead by voluntarily providing paid leave for COVID-19 vaccinations, including Olive Garden, Trader Joe’s, Aldi and Dollar General.

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