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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.

NJ Employers – Get Ready for New COVID19 Safety Regulations!

On October 28, 2020, New Jersey Governor Phil Murphy signed new executive order addressing COVID19 workplace safety.  Under Executive Order No. 192 (“EO 192”), beginning November 5, 2020, NJ employers who require or permit employees to work on-site must maintain certain COVID19-related protocols.  Also, EO 192 lays the groundwork for reporting and enforcement mechanisms for employees to complain about workplace violations.  As a result, employers may see an uptick in claims alleging unsafe work environments as well as increased regulatory scrutiny.  Employers should immediately review their policies and protocols for compliance with this new EO.  Further, employers need to be extra vigilant about taking actions that could appear retaliatory.


Previous executive orders provided fractured mandates across business industries.  EO 192, in contrast, applies to all employers, public and private, with certain exceptions, including for schools, first responders, and other limited groups.  However, employers cannot ignore prior directives specific to their industries.  The present order “supplements the requirements outlined in any Executive Order.”  Any inconsistencies with prior orders are resolved in favor of that prior order absent clear rescission by EO 192.  

What’s New?

EO 192 permits employers to deny entry to employees or visitors who refuse to wear face masks, unless doing so would violate federal or state law.  Employers must offer reasonable accommodation to employees or visitors who decline to wear face masks for disability-related reasons.  

EO 192 changes several standard operating procedures, such as when NJ employers are permitted to request medical documentation to substantiate refusals to wear face masks for disability reasons — in the case of employees it is generally permitted; in the case of customers or visitors it is not permitted.

EO 192 further reinforces employer obligations to provide PPE and hand sanitizers at employers’ cost.  It also emphasized requirements that employers must provide hand-washing breaks to their employees.  

What’s Not So New?

Several mandates required by EO 192 should seem familiar.  Those include (1) maintaining rules around physical distancing, barriers and masking, (2) maintaining policies about sanitation, cleanliness and disinfection of high-touch areas, (3) conducting employee health checks before each shift, and (4) exclusion of symptomatic employees from the workplace.  

Training and Penalties

EO 192 requires the NJ Department of Labor & Workforce Development (“DOLWD”) to create safety and training materials for both employers and workers about this order.  NJ employers should keep their eyes open for the release of these materials in the future.  

Penalties for violating EO 192 include fines up to $1,000, up to six months in prison, and a closure of a worksite.  

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.

Are your New York Sick Leave Policies Ready for January 1?

If you own or operate a private business in New York, and you haven’t updated your sick leave policies since before the pandemic, they are almost certainly out of date. This could be creating risk for your company.

Keeping up with the numerous changes to local sick leave laws may not have been your top priority recently. (Lucky for you, your employment attorney loves doing it for you.) In the last 8 months, you’ve likely been busy (a) furloughing or laying off employees, (b) hiring employees, (c) adjusting to virtual workplaces, (d) crafting and executing reopening plans to keep your employees and clients safe, (e) struggling to understand PPP loan forgiveness rules, (f) trying to administer leaves under the Federal COVID-19 leave law (the Families First Coronavirus Response Act or FFCRA), (g) trying to keep your sanity while juggling work commitments with the needs of homeschooling or “virtual learning” children, or (h) any combination of the above. 

But now you’ve found a breather to ensure your New York sick leave policies are up to date.  Here are a few updates you might have missed. Additionally, this non-exhaustive NY-specific chart identifies several key obligations and distinctions between these laws to help you update your own sick leave policies:

  • NYS Quarantine/Isolation Leave. Effective March 18, 2020, New York employers were required to provide employees with “quarantine or isolation leave” of up to 14 days (depending on employer size and net income) for employees’ or their children’s ordered quarantine or isolation due to COVID-19.  This leave is available in addition to other sick leave benefits employees may have, and may also entitle employees to benefits under the New York’s Paid Family Leave Benefits Law. 
  • NYS Sick Leave. Effective September 30, 2020, New York employers were required to begin providing up to 56 hours per year of paid sick leave (depending on employer size and income) for “sick” and “safe” leave purposes.  Employees may begin using available, accrued sick leave on January 1, 2021, without a waiting period.  Frontloading is available, and carry-over of unused sick time is required (though employers may limit use of sick leave to the statutory maximum). The Department of Labor has also provided guidance regarding telecommuting employees.  However, the existing guidance on this law still leaves several questions about sick leave usage under this law unanswered. It is likely that additional guidance will be forthcoming. 

While many aspects of the New York State Sick Leave Law may sound familiar to those already complying with local NYC and Westchester Sick and Safe leave laws, there are important differences between the state and the local laws (not least of which is Westchester’s requirement that safe leave be provided separately from sick leave).  Compliance with one law will not necessarily guarantee compliance with the other.  Please see the below chart for further details. 

  • NYC Earned Sick and Safe Leave Law Amendments. Effective September 30, 2020, New York City updated its Earned Sick and Safe Leave Law.  Among other things, this amendment also provides that large employers may be required to offer up to 56 hours of paid sick leave starting January 1, 2021, eliminates employee waiting periods to use accrued sick time, requires that employers reimburse employees for costs incurred in providing medical documentation to substantiate sick time taken, and requires that employers list on employees’ pay stubs (or any document issued each pay period) the amounts of accrued and used leave and the total balance of accrued sick time. 

Having compliant sick leave policies — and sound practices to assure that requests for leave are processed lawfully in conjunction with other available types of leave such as FFCRA, FMLA, and New York Paid Family Leave — is key to avoiding inadvertent (and often avoidable) missteps in leave administration. It should further be noted that each of these laws may carry additional posting/notification and record-keeping requirements, not reflected in the above chart

For specifics on how these laws apply to your business and employees, and how they integrate with your business’ policies on other leaves or collective bargaining obligations, please feel free to contact us for additional information.

Recording Virtual Meetings: Opportunity or Pitfall? It’s all in the Policy.

The “new norm” has replaced in-person meetings with video-conferencing through WebEx, Skype, Google Meet, Zoom and other similar platforms.  The ease of recording virtual meetings brings new opportunities for business: for instance, meetings are now more accessible for remote or time-shifting workers; and recordings can now serve in place of copious (and often incomplete or inaccurate) in-person note-taking.  

But it also creates new risk:  for instance, the more copies of sensitive or confidential information there are, the greater the increased risk for misappropriation of trade secrets and confidential information becomes.  And, employees who are permitted to record meetings without the knowledge of their employers could later use those recordings against the employer in a lawsuit. 

For these and other reasons, business owners and HR professionals would be wise to consider the unique risks that recorded meetings might have for their workplace, and to craft and communicate appropriate expectations surrounding recordings.  Consistently crafted and followed practices in this area may not only prevent undesirable employee conduct, but could strengthen an employer’s litigation position – whether it is better defending litigation involving “he said she said” allegations, or helping an employer establish that it took “reasonable measures” to protect its trade secrets. 

Every company’s decision regarding whether to permit recording, by whom, under what circumstances, how the recordings are to be stored, and who will have access to them, will be different depending on company culture, your company’s employment-related risk concerns, meeting content, and likely meeting participants.  As you craft your company policy on recording company meetings, here are several unusual and overlooked principles/best practices to keep in mind:

Consider a Blanket No Recording Policy

Some employers wary of surreptitious employee recordings or protective of their employees’ privacy wish to consider a no-recording policy for their workplace. Is one legal? Maybe. It is generally lawful for your business to have a facially neutral no-recording policy.  Any policy has to be weighed to determine the potential infringement on employees’ rights to engage in collective concerted activity and the business’s needs.  Although the determination is fairly fact-specific, the National Labor Relations Board’s general counsel observed that a neutral no-recording policy “may [in fact] promote Section 7 activity by encouraging open discussion and exchange of ideas.”  (NLRB GC Memo 18-04).

Consider that Today’s Recordings May be Tomorrow’s Discovery Requests. . . .

Once recordings exist, remember that they may become discoverable in state and federal litigation, just like paper or electronic documents.  If you permit or require the recording of all meetings, will your company be able to respond adequately or efficiently if required to produce thousands or millions of hours of recorded meetings? Thus, before instituting a policy permitting the recording of internal meetings, consider how and where those recordings will be stored, collected, preserved, and who will have access to them.  

It would also be prudent to think through matters of privilege — how will any meetings or parts of meetings arguably privileged and protected from disclosure be identified from the outset — so that those meetings or portions of meetings are not inadvertently turned over in discovery proceedings, potentially years down the line?  Simple procedures for assigning saved video files according to attendees and subject matters discussed, could prevent headaches down the road.  

. . . . And Become Tomorrow’s Evidence

Evidence of recorded meetings may be a double-edged sword for employers facing a lawsuit.  On one hand, permitting employee recordings could mean that your company possesses untenable evidence of improper speech or other offensive conduct undertaken by an employee in meetings (then again, if employees know they are being recorded, it may encourage them to “think twice” before making an off-color joke or comment).  On the other hand, a full recording can rebut a secretly recorded snippet of a conversation taken out of context.  Consider the risks and benefits of recording meetings through a “future litigation” lens. 

Remember Policies Need Implementation

Wherever your company comes down on recording of meetings, remember to include the key stakeholders (HR, operations, Legal, IT, and others) in your discussions and decisions, and think through implementation and accountability together. For instance: 

  • If the decision is that employees should not record meetings, can IT actually disable employee access to recording options on employees’ Zoom accounts?  
  • Are there policies in place — that managers are actually following — that limit which platforms should be used for meetings, so that employees cannot “get around” company controls by using alternate platforms?  
  • How will violations of the policy be discovered and disciplined? 
  • Are senior level managers prepared to hold their staff accountable to following policies as outlined, or will these policies be enforced unevenly (which can lead to  disparate treatment claims among other legal problems)?  
  • And, are your other workplace policies that potentially address digital recordings — social media policies, protection of trade secret policies, IT policies and union organizing policies — aligned with your goals? 

Savvy business owners would be well-served to consider these and other implementation hurdles before unleashing a half-baked policy.  In other words, think twice, record once. 

If you have any questions about this article, or would like to discuss your plans for updating your policies to protect your business, please contact us at HRlawyers@wfpclaw.com or visit us at www.wfpclaw.com.

When are “Independent Contractors” Really “Employees”? The DOL Unveils Proposed New Test

The U.S. Department of Labor (“DOL”), the agency tasked with enforcing the Fair Labor Standards Act, has long applied a six-factor “economic reality” test to distinguish between employees and independent contractors. Today, the DOL unveiled proposed regulations intended to clarify and streamline the existing test into a new 5-factor “economic realities” test

Under the new 5-factor test, the first two factorsthe employer’s control over the work, and the workers’ opportunity for profit and loss – are to be given the most weight. The other factors the DOL will consider are (1) the amount of skill required for the work, (2) the permanence of the working relationship, and (3) the degree in which the work is part of an integrated unit of production. 

If the DOL finalizes these proposed regulations, it may be easier for employers to appropriately classify their workers, and to defend independent contractor classifications. Generally, independent contractors are not entitled to federal employee protections, including overtime pay, sick leave, or other employee benefits. Thus, if an employer misclassifies an employee as an independent contractor, the employer could face significant damages in unpaid wages and back taxes. 

What Can I Do to Protect My Business?: 

  • Recognize that the proposed rule is not yet final.  The public has limited time to comment on the proposed rules, after which a final rule will be published. 
  • Remember that the DOL is only one source of law on who is an independent contractor.  Different tests are used by the state departments of labor and the IRS, for instance.  The tests adopted through common law are also used to determine employment status in certain contexts.  
  • Consider examining existing independent contractor relationships now in light of the new proposed rule.  While the proposed rule is not yet law, assessing your independent contractors’ relationship against it will make it easier to make changes to your practices if necessary.  Using knowledgeable employment counsel for this kind of review will help keep the review privileged and can help you identify potential pitfalls in your current employment/contracting practices.

The DOL Issues Revised Rules to the FFCRA

Hot off the presses! the Department Of Labor just issued revisions to the Families First Coronavirus Response Act (FFCRA).  The FFCRA is the law that temporarily expands the Family Medical Leave Act (FMLA) to provide leave for a number of COVID-19-related reasons.  The Federal Government ultimately pays for the leave through employer tax credits. The FFCRA expires on December 31, 2020.


The newly revised rule, which will be effective on Wednesday, September 16, answers 4 questions. Do you know the answers? Answers provided below:

  1. Can employees take FFCRA leave if work is not otherwise available to them?
  2. Can employees take FFCRA leave intermittently, or does it require employer approval?
  3. Employers may exclude “health care employees” from taking FFCRA leave. But just who is included in the definition of “health care employee”?
  4. When must an employee provide notice and documentation supporting his need for leave to his employer?


  1. No – work must be available. In other words, furloughed employees cannot take FFCRA leave.
  2. Employees must seek employer approval to take intermittent leave.
  3. “Health care providers” are now defined as employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care. This definition is narrower than the ordinary understanding of “health care provider”, which typically includes nurses, physical therapists, pharmacists, and the like.
  4. As soon as practicable: an employee does not need to provide notice and documentation prior to the leave if the need for leave is not foreseeable.

Two Cases Exemplifying the Value of Positive Employee Relations

If you like positive employee relations, you might be interested in two legal developments I saw today.

  • First, an NYC employee alleged that her company’s parental leave was misleading: she claimed the policy appeared to offer more weeks of protected leave than it actually did.
  • Second, the 7th circuit ruled that a gay employee was permitted to sue the Catholic church for hostile work environment, notwithstanding the ministerial exemption, a legal doctrine which, broadly speaking, allows religious employers to hire who they want to perform ministerial duties by barring the application of the US’s anti-discrimination laws against them.

What can employers learn from each of these cases?

One lesson may be HOW you do things in your organization is as important as WHAT you do in your organization. The leave administration practice in the first case may have been “legal,” but there is no doubt it was not received well, and now the company is faced defending a lawsuit — and a class action one at that. Ouch. In the second case, while the church may have been within its rights to terminate this employee, its treatment of him prior to termination was problematic. This case underscores that, at least in the 7th Circuit, the ministerial exception will not give religious employers carte blanche to violate anti-discrimination laws, even if certain hiring/firing provisions are exempted. Bottom line: Even “permissible” actions can create risk if you are not careful in how you deliver them. Treating employees well and mitigating risk means more than just strictly complying with the law.

What other lessons do you see?

How to Save Time While Working Remotely (Harvard Business Review)

While I typically post only about legal news, the below article from Harvard Business Review was so clutch, I couldn’t resist. If I were still running HR at The New York Foundling, I would absolutely share this with my team. Those of you managing people in remote jobs might also want to share.

Harvard Business Review: How to (Actually) Save Time When You’re Working Remotely