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An Interview with Jennie Woltz of Woltz & Folkinshteyn, P.C. by Tara Campbell Lussier of Arrow

Listen to our own Jennie Woltz discuss leave rights, paid leave, mental health + perinatal medical diagnoses from the legal lens, breastfeeding rights, and bereavement rights with Tara Campbell Lussier, CEO & Co-Founder of Arrow, a full-service parenting support consultancy for families, employers and healthcare organizations. We are extremely grateful to be invited by Arrow to talk about these important topics.

Breaking News: New York Legislature Seeks to Revoke NY Governor Cuomo’s Emergency Powers

In recent weeks, a bi-partisan group of NY legislators have been hammering the beleaguered Governor Andrew Cuomo’s failure to truthfully report the number of NY nursing home COVID-related deaths. On February 17, 2021, to assert legislative oversight over New York’s pandemic response, a proposed bill No. S04888 was introduced in the NY State Senate which seeks to revoke the extension of emergency powers granted to Cuomo related to the outbreak of COVID-19 early last year.

In general, the proposal reverses the temporary amendments to Executive Law 29-a passed previously by the state legislature at the start of the pandemic, removing Governor Cuomo’s authority to “issue any directive during a [declared] state disaster emergency” which may be necessary “to assist or aid in coping with such disaster.” We will continue to monitor this recent development and how it affects the various COVID-19 executive orders, including quarantine rules, business capacity frameworks, and other employment-related pronouncements.

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.

NY Employers Stay Tuned: New Biometric Privacy Law on the Horizon

The new year has already brought new compliance challenges to New York employers. Another one may be looming on the horizon. On January 6, 2021 a bi-partisan group of NY state legislators introduced A.B. 27, the Biometric Privacy Act. It is a virtual copy of the Illinois’ Biometric Information Privacy Act of 2008 (“BIPA”). Over the past dozen years since BIPA’s passage, Illinois has seen a slew of consumer and employee class actions alleging improper collection of biometric information by companies and employers. New York could be the next hot spot for these kinds of class action lawsuits. 

Statutory Prohibitions

The proposed statutory language defines biometric information and biometric identifiers broadly and includes retina or iris scans, fingerprints, voiceprints and facials scans. The language specifically excludes from the definition of biometric information writing samples, written signatures, photographs as well as certain patient information collected in a medical setting, etc.

The law would prohibit private entities from collecting, capturing, purchasing or receiving a person’s or customer’s biometric identifier or biometric information (as defined in the proposed act) absent informed consent about purpose, duration and type of information collected. It would also mandate the creation of written policies which are available to the public about the collecting company’s retention schedules and destruction guidelines.

The proposed act further prohibits the sale, leasing or trading or profiting from a person’s or customers biometric identifier or biometric information. It would also prohibit disclosure or re-disclosure of same absent consent or obligation to disclose under state, federal or municipalities and a few other exceptions. Lastly, it provides for a private right of action like its Illinois predecessor. The two other states that have enacted biometric privacy laws, Texas and Washington, provide for enforcement only by the respective states’ attorneys general.

Implications for Employers

    As is the case under BIPA, the proposed New York law would require employers to obtain a written release from the employee as a condition of employment prior to collecting biometric information (e.g., fingerprints) from employees for various employment-related purposes, be it time-keeping, security access or benefits/training tracking.

    While the passage of New York’s Biometric Privacy Act is not guaranteed as NY legislators have proposed biometric privacy legislation several times since 2018, employers should remain vigilant about this development and consider engaging in several proactive steps to be ahead of the curve should this proposal become law:

  • Employers should review their biometric collection capabilities, policies, and vulnerabilities with their Operations and IT departments, to better understand where, how, and of whom, biometric data is collected in the workplace.
  • Be prepared to update cyber security policies and practices with this newfound information. 
  • Work with Human Resources to become prepared to implement written releases for employees (current, and newly hired), if and when the proposed act becomes law.

New Biden Executive Orders Employers Should Know About

On January 20, 2021, during the first 24 hours of the new presidency, President Biden issued two sweeping executive orders that are likely to have implications for employers – and maybe all Americans –  in the future. These two orders represent a significant “reset” to the momentum of the prior administration in the area of diversity and discrimination, and set the tone for a new administration’s policies and laws.

Executive Order 13988 (“Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation”) relates to sex discrimination, notably LGBTQ protections.  This order codifies the recent holding in Bostock v. Clayton County, 590 U.S. ___ (2020), which held that Title VII “sex” discrimination covers discrimination on the basis of gender identity and sexual orientation.  Notably, it also consider the perceived magnifying effects of “overlapping” forms discrimination, such as when sex discrimination intersects with racial discrimination or disability discrimination — for instance, stating that “transgender Black Americans face unconscionably high levels of workplace discrimination, homelessness, and violence, including fatal violence.”   The Order directs federal agencies to “self audit” and review existing programs and agency actions administered under Title VII or any other statute or regulation that prohibits sex discrimination to ensure the agency is taking appropriate steps to combat sex discrimination. 

Executive Order 13985 (“Advancing Racial Equity and Support for Underserved Communities Through the Federal Government”), predictably revoked President Trump’s September 22, 2020 Executive Order 13950, which had barred Federal contractors from providing diversity trainings that include race or sex stereotyping or “divisive concepts”.  But Biden’s order goes much further than policing the content of diversity training:  it asks federal agencies to conduct an “equity assessment” within Federal agencies to determine whether “underserved communities and their members face systemic barriers in accessing benefits and opportunities available pursuant to those policies and programs.” The order also provides a framework for allocating federal resources to “advance fairness and opportunity” and promoting the “equitable delivery of government benefits and equitable opportunities”.  The order establishes an “Interagency Working Group on Equitable Data” to assess the agency’s findings.

It will be interesting to see the implication of the Biden administration’s focus on “underserved” communities, and “systemic barriers” for discrimination law generally.  The policy focus of the new administration likely will pave the way for more employee-friendly changes to the law— possibly, new protected classes will emerge, or new legal theories or standards of proof for disparate treatment claims under Title VII will gain footing. It would also be unsurprising if, in light of these orders, Title VII’s definition of “sex” were formally amended to include gender identity and sexual orientation. While it’s too early to tell, it’s never too early to plan.  

DOL Publishes Final Rule on Independent Contractor Test

On January 6, 2021, the U.S. Department of Labor (“DOL”) finalized a proposed rule clarifying the distinction between employees and independent contractors. The final rule was published in the Federal Register on January 7, 2021. It is slated to take effect on March 8, 2021. 

As we discussed on September 22, 2020, this new rule reaffirms and streamlines the so-called “economic realities” test to determine whether an individual is an independent contractor or an employee, winnowing the test down to a slim 5-factor approach.  On its face, the rule appears to make it easier for employers to classify their workers as independent contractors.  

But employers should avoid relying on this new rule to reclassify employees as independent contractors:

  • First, it remains to be seen whether the incoming Biden administration will permit the final rule to take effect. The Biden administration is expected to take a much more aggressive position on wage-and-hour and misclassification issues, and is likely to engage in administrative or legislative maneuvering to put the brakes on the final implementation of the rule in March 2021.
  • Second, employers should remember that the rule only applies to the Fair Labor Standards Act (FLSA), which governs federal minimum wage and overtime requirements.  Many state and local laws apply stricter tests to misclassification matters. In other words, a worker who may not have a wage and hour claim under FLSA might still have a wage and hour claim under state or local law, if he or she does not meet the higher state/local test for independent contractor classification. 
  • Third, courts may not necessarily follow the DOL’s interpretation. Though the rule will almost certainly be persuasive authority, courts are not obligated to follow it and may instead choose to follow the body of case law interpreting independent contractor status under the FLSA. 

Business owners and human resources professionals should take this opportunity to analyze existing independent contractor arrangements and contract templates in light of the new rule.  They should consider whether the arrangement or contract meets or fails the five factors test, and in appropriate cases, consider alternatives for reclassifying such workers as employees or shoring up the contractor classification.  Employers should also continue to follow legislative and political developments for changes once Biden takes office. 

Experienced employment counsel can help employers by analyzing these relationships, educating employees of their obligations under applicable law, and working with employers and their teams to craft and implement strategies to address areas of risk.   

If you have any questions about this article, or would like advice on addressing your workers’ employee/independent contractor status, please contact us at HRlawyers@wfpclaw.com or visit us at www.wfpclaw.com.

EEOC Weighs in on Application of Equal Employment Opportunity Laws to Workplace COVID-19 Immunizations

As the first COVID-19 vaccinations are becoming available for public use, employers across the US are fretting over whether to mandate COVID-19 vaccinations among their workforce. On Wednesday, December 16, 2020, the Equal Employment Opportunity Commission (EEOC) weighed in with much-anticipated guidance for employers considering their options.  Spoiler alert:  YES, employers may require COVID-19 vaccinations, but they must be careful to navigate a host of minefields in doing so, or they could find themselves violating various anti-discrimination and leave laws. 

For employers considering mandatory COVID-19 vaccinations for their staff:

  • Having a blanket “mandatory vaccination” policy is not illegal per se, and asking or requiring employees to show proof of receipt of a COVID-19 vaccination is NOT a “disability-related inquiry” under the Americans with Disabilities Act (ADA) or a request for “genetic information” under the Genetic Information Nondiscrimination Act (GINA). 
    • If a mandatory vaccination policy screens out or tends to screen out individuals with a disability, the employer must support  the policy with an analysis that considers whether an unvaccinated employee would pose a direct threat due to the significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. We note that the EEOC has already determined in prior guidance that COVID-19 poses a direct threat to employees in the workplace. 

[E]mployers may require COVID-19 vaccinations, but they must be careful to navigate a host of minefields in doing so, or they could find themselves violating various anti-discrimination and leave laws. 

  • BUT employers can get tripped up when an employee refuses to be vaccinated.
    • Unsurprisingly, if an employee is unable to receive a COVID-19 vaccination because of a disability or sincerely held religious belief, the employer must consider reasonable accommodations consistent with the ADA, Title VII or other laws before excluding the employee from the workplace. On the other hand, employers are not required to accommodate an employee’s secular beliefs or generalized fears about vaccines. 
    • And yet, asking an employee why he or she did not receive a vaccination MAY be considered a disability-related inquiry under the ADA, or may implicate GINA. Such questions can only be asked when “job-related and consistent with business necessity,” including when the questioner has a reasonable belief that the employee could cause a “direct threat” to the health and safety of him or herself or others. This can be a difficult threshold to meet.
      • So how should an employee walk this fine line? One option will be to ask — without requiring the employee to provide specifics — whether the employee’s inability or refusal to obtain the vaccination is based on a medical condition or sincerely held religious belief. If the employee answers “yes” to either reason, substantiating documentation can then be requested from a medical or religious professional, if needed. Employers considering mandatory vaccination policies must therefore be prepared to appropriately address employee refusals, and, where necessary, engage in the interactive process applicable to assessing whether a reasonable accommodation is possible.
  • Further, even if no reasonable accommodation is possible, and employers may lawfully exclude the employee from the workplace, employers must continue to determine if other rights apply under the equal employment opportunity laws or other federal, state or local authorities.  This may include accommodations permitting telework, or providing leave under the Families First Coronavirus Response Act or other leave law or company policy. 
  • Finally, employers who request proof of vaccination should warn the employee not to provide genetic information or medical information as part of the proof, to avoid implicating the ADA or GINA.  And employers should keep any employee medical information obtained in the course of the vaccination program confidential. 

For employers who wish to administer COVID-19 vaccinations to their employees:

  • Employers can take some comfort in the EEOC’s stated position that administration of the COVID-19 vaccination itself is NOT a “medical exam” for purposes of the Americans with Disabilities Act. In other words, employers may administer vaccinations on-site without implicating ADA concerns.
  • However, asking employees pre-screening questions as a condition to receiving the vaccination — e.g., when asking employees why they cannot be vaccinated — MAY constitute a “disability-related inquiry”under the ADA or a request for genetic information under GINA. Thus, an employer would need to determine that an employee’s failure to answer pre-screening questions will pose a “direct threat” to the health and safety of him or herself or others. This may be a difficult threshold to meet.  The EEOC offers two workarounds to address this particular concern:
    • First, the employer may make the vaccination program truly voluntary — since that way employers are offered more leeway to ask what may otherwise be considered “disability-related inquiries”  without running afoul of the ADA’s mandates. However, a voluntary program might defeat the purpose of offering the vaccination at work in the first place.  
    • Second, the employer can direct employees to get “pre-screened” for the vaccine by a doctor, pharmacist, or other third party with whom the employer has no pre-existing contractual relationship, before obtaining the vaccine on-site. Such inquiries will then fall outside the ADA’s limitations on “disability-related inquiries.”

In all situations:

  • Managers and supervisors should know how to recognize an accommodation request from an employee with a disability or sincerely held religious belief, and know to whom the request should be referred for consideration. 
  • Managers and supervisors should similarly be reminded that it is unlawful (1) to disclose that an employee is receiving a reasonable accommodation and (2) to retaliate against an employee for requesting an accommodation
  • Employers should familiarize themselves — or consult with legal counsel about —  the undue hardship standards applicable to requests for reasonable accommodation for disability and for sincerely held religious beliefs. Employers should ensure that appropriate, individualized undue hardship analyses are performed when an employee requests an accommodation, which can help defend a challenged employment action later. 
  • Employers should be mindful to ensure employees have been afforded every opportunity for leave or other time off before terminating an employee’s employment because of the employee’s failure to be vaccinated. 

Navigating the patchwork of federal equal employment opportunity laws — not to mention applicable and sometimes overlapping state or local laws — can be complex. Experienced employment counsel can advise on effectively responding to employee inquiries and complaints, educate HR staff on leave and accommodation best practices, and help craft effective and legal policies designed to help organizations achieve their business goals.

For more information or questions pertaining to your company’s specific situation, please reach out to Jennie Woltz at jwoltz@wfpclaw.com or Benjamin Folkinshteyn at bfolkins@wfpclaw.com.

NYC Public Schools are Closed. Are you Prepared?

NYC School Closure

In a swift announcement made by Mayor de Blasio in response to rising NYC COVID-19 rates, New York City is closing all public schools for in-person instruction as of November 19, 2020.  Although officials hope that closures may only last through Thanksgiving, it is likely that they will last longer.  This development affects about 300,000 students who are enrolled in NYC’s blended curriculum, which involves part-time in-person instruction and part-time remote schooling.  The school district already has approximately 700,000 students who are enrolled in full-time remote learning.  

This devastating development presents another challenge to NYC employers and parenting employees who are struggling to maintain a sense of normalcy and balance during the pandemic.  Employers should anticipate an increased number of requests to work from home as well as an increase in requests for leave from their employees in the coming weeks, as a result of the school closures. 

Employers should recall that the Families First Coronavirus Response Act (“FFCRA”) remains in effect through December 31, 2020 and applies to most employers with fewer than 500 employees.  In general, the FFCRA provides for up to 12 weeks of leave at 2/3 an employee’s regular rate because an employee is unable to work (or telework) because of, inter alia, need to care for a child (under 18 years of age) whose school or child care provider is closed due to COVID-19.  

As the situation continues to develop, employers should keep the following in mind:

  • It is possible that any employee who requests FFCRA leave to care for a child now may have already taken some FFCRA leave during prior rounds of school closings. HR should ensure that appropriate systems are in place to calculate leave already taken and leave eligibility going forward. Also, if an employee is able to telework, he or she is not eligible for FFCRA leave.  
  • In order to take advantage of tax credits associated with granting FFCRA leave for child care, the IRS requires certain supporting documentation. Familiarize yourself with these IRS guidelines and collect the documentation you may need before or shortly after an employee takes leave, to ensure you do not jeopardize your rights to apply for the credits. Similarly, remember that a request for leave to care for a child older than 14 years old will require a statement of “special circumstances” requiring the employee to provide care. 
  • Even for employers who are not subject to the FFCRA, or for employees who have exhausted their FFCRA leave entitlement, employees may be entitled to leave under other laws or company policies if they need leave to care for a child out of school due to Mayor de Blasio’s announcement.  For instance, the New York City Earned Sick and Safe Time Act permits the use of sick time when an employee has a “need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.”  Go here for a handy chart of NY-specific sick leave law comparisons.
  • Be mindful to equitably handle employee requests for leave or for telecommuting due to school closures.  Readily permitting leave or telecommuting requests for employees caring for children, but denying requests for leave to care for other family members, or granting such requests for women and denying them for men, for instance, could subject your company to claims of caregiver discrimination or sex-based gender stereotyping, among other discrimination claims. 
  • Finally, for telecommuting or remote workers, it is prudent to ensure that your company maintains sound remote workplace policies. These should be designed to encourage and support engagement and performance, while mitigating employer risks associated with remote workers, including those involving information security, the prevention of workplace injuries, and adherence to wage-and-hour laws

NYC school closures may just be the harbinger of increased pressures facing employees and business owners in the coming months, as the nation plunges deeper into a second wave of the COVID-19 pandemic.  Maintaining smooth, safe, efficient business operations and sustaining employee morale and high performance amid this crisis will undoubtedly be challenging.  Experienced employment counsel can help your company navigate complex workplace issues associated with the COVID-19 pandemic. 

For more information or questions pertaining to your company’s specific situation, please reach out to Jennie Woltz at jwoltz@wfpclaw.com or Benjamin Folkinshteyn at bfolkins@wfpclaw.com.