Tag: covid-19 vaccine mandate

The Evolving New York City Workplace: Two Important Updates Effective November 1st

Two important measures impacting New York City employers will be effective on November 1, 2022. The first measure is Mayor Adams’ lifting of the COVID-19 vaccine requirement for private employers, which was implemented by his predecessor Mayor de Blasio shortly before he left office. The second measure is New York City’s new “pay transparency” law, which continues the city’s aggressive efforts to eradicate pay disparity and requires employers to immediately review and update their hiring practices.

Vaccine Mandate Lifted

The New York City COVID-19 vaccine mandate, which became effective on December 27, 2021, mandated all New York City private employers to require that all in-person employees be vaccinated against COVID-19, subject only to approved religious and medical exemptions. Effective November 1, 2022, this vaccine mandate will be lifted.

Going forward, New York City employers retain the right to implement their own vaccination policies. New York City employers may lift the requirement and allow employees who are not vaccinated to return to work on site. Alternately, employers may continue to require the COVID-19 vaccine for in-person staff, in which case such employer mandatory vaccination policies must still provide for medical or religious exemptions consistent with applicable laws.

Pay Transparency

Following a recent national trend, New York City continues to aggressively regulate pay equity by amending the New York City Human Rights Law (“NYCHRL”) to implement “pay transparency” requirements. The law also contains an anti-retaliation provision. The New York City pay transparency law applies to employers with four or more employees (or one or more domestic workers) and employment agencies of any size. The new law does not apply to temporary help firms seeking applicants to join their pool of available workers.

Going forward, covered entities must include the minimum and maximum annual base salary or hourly range of compensation that the employer believes in good faith to be accurate at the time in any advertisement for a job, promotion or transfer opportunity that can or will be performed, in whole or part, in New York City.  While the statutory language is sparse, and regulations have not yet been issued, according to a Fact Sheet published by the New York City Commission on Human Rights (“Commission”) (https://f.datasrvr.com/fr1/622/87383/Salary-Transparency-Factsheet.pdf?cbcachex=897118), an “advertisement” is defined broadly as a written description of an available job, promotion or transfer opportunity that is publicized to a pool of potential applicants, regardless of the medium, and includes postings on internal bulletin boards, internet advertisements, printed flyers at job fairs and newspaper advertisements. The requirement applies when advertising for full-time or part-time employees, interns, domestic workers or independent contractors. The law does not prohibit employers from hiring without using an advertisement or require employers to create an advertisement in order to hire.

According to the Fact Sheet, employers must include both a minimum and maximum salary, and the salary range cannot be open-ended. However, note that “salary” does not include other forms of compensation or benefits offered, including overtime, commissions, tips, bonuses or stock. For example, “$15 per hour and up” or “maximum $50,000 per year” would not be consistent with the new New York City requirements. Further, an advertisement that solely provides that a salary will be commensurate “with experience” also would appear to be inconsistent with the new law.

The Commission investigates complaints of discrimination, as well as the new salary transparency protections. Employers and employment agencies who are found to have violated the NYCHRL may have to pay monetary damages to affected employees, amend advertisements and postings, create or update policies, conduct training, provide notices of rights to employees or applicants and engage in other forms of affirmative relief. According to the Fact Sheet, the Commission will not assess a civil penalty for the first complaint alleging violation of the salary transparency provision, provided that the employer shows that it has fixed the violation within 30 days.

Notably, New York State lawmakers have also passed a similar pay transparency bill, which is currently pending Governor Hochul’s signature and would go into effect 270 days after it is signed into law. The New York State bill, if it is enacted in its current form, will be potentially broader in its application, such as requiring provision of a job description for the position, if one exists.

It is also important to note that prior recent measures adopted by New York State and/or New York City to ensure non-discriminatory hiring practices and equal employment opportunities include regulations prohibiting employers from asking candidates about their prior salary history, pay equity provisions requiring equal pay for the same or substantially similar work, and stringent limitations on criminal history inquiries.

Takeaways

New York City continues to be at the forefront of enacting employment legislation to protect the rights of employees and applicants. It is critical for New York City employers to be vigilant to ensure compliance with the ever-changing legal requirements, including those relating to COVID-19, and to implement appropriate policies and practices.

With regard to the new pay transparency law, it is important for employers to promptly assess their pay practices, ensure that pay ranges are appropriate and equitable, consider documenting the applicable factors that were considered in reaching the salary decision, review job descriptions and ensure that advertising complies with the new requirements (including online recruitment sites).

For more Labor and Employment Law news, click here to visit the National Law Review.

© Copyright 2022 Sills Cummis & Gross P.C.

Federal Judge Blocks Contractor Vaccine Mandate Nationwide

On December 7, 2021, a federal judge issued a nationwide preliminary injunction halting enforcement of the federal contractor and subcontractor vaccine mandate requirements issued by the Safer Federal Workforce Task Force in response to President Biden’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors.  The mandate requires covered contractor employees to be fully vaccinated by January 18, 2022.  On November 30, a federal judge in Kentucky blocked enforcement of the mandate in Kentucky, Ohio, and Tennessee.  We blogged about that decision here.

Judge R. Stan Baker’s decision came in a case originally filed by Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia, the governors of several of those states, and various state agencies, including the Board of Regents of the University System of Georgia.  Later, the Associate Builders and Contractors, Inc. (“ABC”), a trade organization, and one of its chapters in Georgia filed a Motion to Intervene along with their own Motion for Preliminary Injunction.  Judge Baker denied the Motion to Intervene as to the local chapter, but granted the Motion to Intervene as to ABC.  As discussed below, the Judge then found that the inclusion of this additional plaintiff warranted issuing a nationwide injunction (as opposed to the Kentucky judge’s more limited Order).

As in the Kentucky case, Judge Baker found the Plaintiffs would likely be able to show that the mandate exceeds the President’s powers under the Federal Property and Administrative Services Act.  He declined to issue a decision as to whether the mandate likely violated the constitutional non-delegation doctrine or infringed on rights reserved to the states under the Tenth Amendment.

As to why the Court here issued a nationwide injunction, Judge Baker cited the inclusion of ABC, contending that the trade association had members “all over the country” and were awarded “57% of federal contracts exceeding $25 million during fiscal years 2009-2020.”  His injunction does not appear to apply to other aspects of the contractor COVID-19 requirements issued by the Task Force, including those related to masking and social distancing.

It is unclear whether the federal government will seek to have the injunction lifted, and whether such an effort will be successful.  But, effective immediately, covered contractors in any state or territory of the United States of America are no longer mandated to require their covered workers to be vaccinated.

© 2021 Proskauer Rose LLP.

Article By Guy Brenner and Jacob P. Tucker of Proskauer Rose LLP

For more articles on vaccines, visit the NLR Coronavirus News section.

Tennessee Enacts Law Restricting Enforcement of Vaccine Mandates

On November 10, 2021, Tennessee Governor Bill Lee announced that he would sign legislation that addresses various COVID-19–related issues, including vaccine mandates and mask mandates. The law is effective immediately. There are several major issues for employers regarding COVID-19 prevention measures addressed in the new law. Below is an overview of the law’s key points.

Vaccine Mandates

The law does not prohibit private employers from adopting vaccine mandates. It seeks, in an indirect manner, to restrict employers from mandating vaccines… The law focuses on prohibiting employers from requiring proof of vaccination status. The express language of the new law is as follows: “A private business, governmental entity, school, or local education agency shall not compel or otherwise take an adverse action against a person to compel the person to provide proof of vaccination if the person objects to receiving a COVID-19 vaccine for any reason.”

It would appear that the law potentially creates a perverse “don’t ask/don’t tell” incentive for both employers and employees. If an employee openly objects to receiving a vaccine, an employer can still ask why—to determine if there is a bona fide Title VII religious or Americans with Disabilities Act (ADA) accommodation issue—but the employer would appear to be able to discharge or discipline the employee for the employee’s objection (absent accommodation issues). What a Tennessee employer cannot to do is ask employees for proof of vaccination status and then take an adverse action if the employees fail or refuse to provide proof of their vaccination status. By contrast, an employee might have an incentive to keep quiet and not answer (or lie) if asked about vaccination status.

Mask Mandates

An earlier version of the legislation sought to prohibit mask mandates entirely. The version that has become law limits the prohibition on mask mandates to government employers: “An employer that is a governmental entity shall not require an employee to wear a face covering as a term or condition of employment, or take an adverse action against an employee for failing to wear a face covering, unless severe conditions exist at the time the requirement is adopted and the requirement is in effect for not more than fourteen (14) days.” (Emphasis added.)

Unemployment Benefits

The law allows employees discharged for refusing to be vaccinated to receive unemployment benefits—and it is retroactive.

Medicare and Medicaid Vaccine Requirements

The law excludes from its coverage healthcare providers that are subject to Medicare or Medicaid vaccine requirements.  On November 5, 2021, the Centers for Medicare & Medicaid Services published their interim final vaccine mandate rules.

Exemptions

The new law allows employers, private businesses, schools, and state and local governmental entities to apply to the state comptroller for exemption from the requirements of the statute if compliance would result in a loss of federal funding. This exemption process would allow employers that are federal contractors to seek exemption.

Federal Emergency Temporary Standard

The law may set up a potential showdown between the Tennessee Occupational Safety and Health Administration (TOSHA) and the federal Occupational Safety and Health Administration (OSHA) over the implementation and enforcement of OSHA’s recently issued COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) for large employers (100 or more employees). The Tennessee law’s prohibition on compelling employees to provide proof of vaccination status is in direct conflict with the federal ETS (which requires employers to determine the vaccination status of each employee, including requiring each vaccinated employee to provide “acceptable proof of vaccination status”).

State OSHA plans, such as Tennessee’s, have 30 days to adopt the federal standard. However, the Tennessee law includes a provision that prohibits any state funds from being allocated to implement or enforce any “federal law, executive order, rule, or regulation that mandates the administration of a COVID-19 countermeasure” (including vaccines, testing, and masking). TOSHA receives funding from both the state government and the federal government. It is unclear whether TOSHA will be eligible to seek an exemption as described above. While the language of the exemption provision would appear to apply to TOSHA, the statements of proponents of the Tennessee law during the special session of the Tennessee General Assembly during which the legislation was approved made it clear that their efforts were aimed at curbing the impact of the federal ETS in Tennessee.

On Monday, November 8, 2021, TOSHA issued the following statement:  “Tennessee OSHA is currently reviewing the latest OSHA Emergency Temporary Standard regarding vaccines in the workplace.  As the agency did with the prior ETS, staff will review the OSHA standards and then determine how Tennessee will move forward. This process could take multiple weeks to complete.”

Key Takeaways

Business groups were strongly opposed to this new law, and that opposition contributed to the legislative shift away from an outright ban on vaccine mandates and to the narrowing of the anti-mask provision. There are still questions to be answered regarding this new law, including whether it will be challenged in court, what the process for requesting an exemption will look like, and whether Tennessee will adopt the federal COVID-19 Vaccination and Testing ETS.

This article was written by William Rutchow of Ogletree Deakins Law firm. For more information regarding vaccine mandate challenges, please see here.