In the hustle and bustle of year-end filings, the holidays and the rush and tumble of life, some may have overlooked a few of the more significant legal developments in 2021. To help you stay “on track” for a successful 2022, this “Year-in-Review 2021” may help. Of course, this post does not constitute legal advice, and no action should be taken based on it without first speaking to qualified legal counsel of your choice.
COVID-19 Mandates
In March 2020, few predicted we would still be dealing with COVID-19 restrictions two-years later. Yet here we are! Conflicting mandates and restrictions have caused a good deal of confusion and frustration. Here is a “score-card” of the status of things (which will likely change before you finish reading it!)
All employers that receive funds through Medicare or Medicaid must ensure all workers are vaccinated against COVID-19 unless they have applied for and have either received or are being considered for accommodations based on a sincerely held religious belief or a disability covered by the Americans with Disabilities Act (“ADA”). The United States Supreme Court upheld this executive order in January 2022.
So-called large employers (those with 100 or more employees) are not required to mandate their employees be vaccinated against COVID-19. President Biden’s Executive Order imposing that mandate was overturned by the United States Supreme Court, which indicated a more “targeted” industry specific requirement may pass scrutiny. Expect more developments in this area during 2022.
Certain Connecticut-based employers subject to Governor Lamont’s executive orders (primarily, but not exclusively, K-12 schools, certain municipal employers and health care employers) must require employees hired after September 27, 2021, to be vaccinated against COVID-19 unless the employee requests and receives or is being consider for an accommodation based on a sincerely held religious belief or a covered medical condition. (Employees hired prior to September 27, 2021 may elect not to be vaccinated for any reason.) Any non-vaccinated employee must submit to weekly COVID-19 testing. Employers must keep detailed records on employee vaccination status.
New York State employers must require employees and visitors (age 5 or older) who enter the premises to either be fully vaccinated against COVID-19 or all must wear masks and practice social distancing in public places within the premises (except when eating or drinking). The Commissioner of Public Health, who was authorized by Governor Hochul’s executive order to implement the mandate, imposed additional obligations on healthcare employers, adult care facilities, P-12 schools, correction facilities and homeless shelters, and transportation centers/hubs. While Governor Hochul’s executive order was enjoined by a state court judge, an appellate court placed that injunction on hold pending appeal. So-called “mix and match” policies (where only unvaccinated individuals are required to wear masks) are not permitted. The Governor’s executive order was extended through February 10 and the Governor may extend it again in light of the Omicron surge.
New York City based employers similarly must require all employees and visitors who enter the premises to be fully vaccinated (children aged 5 to 12 must have received one-dose of the COVID-vaccine) to participate in indoor activities. Masking in lieu of vaccination is not permitted. Certain individuals who cannot be vaccinated have additional requirements as a condition for entry.
According to the EEOC, private-sector employers may require employees be fully vaccinated against COVID-19 unless the employee objects to vaccination because of a sincerely held religious belief or a disability covered by the Americans with Disabilities Act. While many employers face lawsuits based on these self-imposed mandates, as of this writing, no court has enjoined or declared unlawful such practices.
And, just to make it clear none of this is easy, employers whose employees are represented by a labor union may (or may not) have an obligation to bargain with the labor union over the decision to require vaccinations or the impact of that decision or both. See Responding to Inquiries Regarding Bargaining Obligations Under the Department of Labor’s Emergency Temporary Standard to Protect Workers from Coronavirus, GC 22-03 (November 10, 2021)
While COVID dominated the 2021 legal news, other requirements were adopted on the federal and state level which you may have missed. Here are a few!
Federal Law
National Labor Relations Board
More Scrutiny on Work Rules. On January 6, 2022, the NLRB issued its decision in Stericyle, Inc., 371 NLRB No. 48 (2022), inviting interested parties to submit briefs on whether the Board should overrule its decision in Boeing Co., 365 NLRB No. 154 (2017) regarding whether an employer’s maintenance of a facially neutral work rule would nevertheless violate the Act. Prior to the Board’s Boeing Decision, routine work rules prohibiting tape-recording in and photographing of work areas, engaging in conduct undermining workplace harmony, and otherwise engaging in “disruptive” workplace conduct were found to be unlawfully overbroad. Given a strong dissent from Members Kaplan and Ring (the two remaining Board Members appointed by President Trump), many expect the Board to return to a more aggressive review of work rules.
Remote NLRB Hearings! On November 4, 2021, the NLRB issued a notice of proposed rule-making examining the circumstances under which -case hearings could be conducted by video-conference. Federal Register:: Use of Videoconference Technology To Conduct Unfair Labor Practice and Representation Case Proceedings This may be an “about time” development. Particularly in pre-election R-Case proceedings, where credibility resolutions cannot be made and where hearings normally take place within 8 days of the filing of a petition, “virtual” hearings and testimony seem more than appropriate. (This attorney vividly remembers flying between Los Angeles and New York more than six times in the span of two weeks because of representation case hearings!)
Tipped Employees
Tipped Employees Back in Spotlight. The U.S. Department of Labor published its final rule limiting the amount of time a tipped employee can spend doing “non-tipped” work to 20% of time. (Otherwise, employee must be paid at least minimum wage.) The rule was effective December 28, 2021.
Connecticut State Law
As most already know, on January 1, 2022, Connecticut’s Paid and Family Medical Leave Act became fully effective. This means every private sector employee in Connecticut is eligible for up to 12 weeks of paid leave per year (with an additional two weeks of paid leave when the individual is disabled as a result of pregnancy). On January 28, 2022, the DOL issued proposed regulations interpreting the statutes. The regulations are subject to a 30-day comment period and will likely become fully effective in or after March 2022.
Effective October 1, 2021, CT employers of one or more employee in the state must provide any applicant for employment (broadly defined) with the wage range of the position upon request or at the time an offer of compensation. The DOL advised that it believes the law applies to employees applying for work with a CT-employer even if the employee would be working outside the state.
New York State Law
Minimum Wage and Salary Increase
Effective January 1, 2022, the New York minimum wage increased to $15 per hour for employers in New York City, Long Island and Westchester County. All other employers in New York must pay at least $13.20 per hour. The minimum salary for so-called exempt administrative and executive employees also increased to $1,125.00 per week ($58,500 per year) in New York City, Long Island and Westchester; and $990 per week ($51,480 per year) in the rest of New York.
Private Settlements Banned by NY State Division of Human Rights
On October 1, 2021, the NY State Division of Human Rights announced it would no longer accept private settlements. As of October 12, to obtain a dismissal of a discrimination charge, the complainant’s attorney must submit a written statement explaining the request for a discontinuance and the parties may only settle litigation through a public order after stipulation or “proceed through the public hearing process.”
Construction Employees’ Wages
Effective January 2, 2022, New York Construction employers are potentially directly liable for their contractors’ failure to pay wages due to their employees. Labor Law Sec. 198-e transfers liability to contractors (excluding public works contracts, contracts for certain home improvement contracts, and some one- and two-family home contracts). Waivers of liability generally will not be valid. Under the new law, subcontractor employee wage claims are subject to a three-year statute of limitations. The law contractors can request certain information from subcontractors to protect their interests.
Employee Monitoring
Effective May 7, 2022, New York employers must provide new employees notice of electronic monitoring of phone calls, emails and internet usage. Notice must be in writing (hard copy or electronic) and acknowledged by the employee. Notice must also be posted in conspicuously places. The Law does not apply to processes designed to monitor type or volume of incoming or outcoming messages, not targeted to intercept communications of a particular person, or for purposes of computer maintenance or performance.
Retirement Savings Plans
Effective November 8, 2021, New York State employers employing ten or more employees during the past calendar year, in business for the last two years, and that have not offered a qualified retirement plan within the last two years, must provide for automatic enrollment in a retirement savings plan. Employees may opt out of the plan and deductions do not begin until after 30 days of enrollment. An employer must also provide information as to how to opt out and employers are not liable for the employee’s decision to opt-out.
Whistleblowing Protections
Effective January 26, 2022, New York Labor Law Section 740 expanded to create a cause of action for an employee disciplined, discriminated against, or retaliated against for reporting or threatening to report any violation of any law, rule or regulation, executive order, or administrative or judicial decision. The statute of limitations was also extended from one year to two years and the parties shall be entitled to a jury trial. Employers must provide notice of these rights in an accessible, well-lighted place, frequented by employees and applicants.
Employee Paid and Unpaid Leave
Effective March 12, 2021, NY employers must provide up to 4 hours (or more if pursuant to a bargaining agreement) of paid leave for employees to receive the COVID-19 vaccine. The NY DOL has opined that the four hours of leave is available for each vaccination, including booster shots (for a total of 12 hours paid leave for the Pfizer “two-dose” vaccination and one booster shot). cd6-paid-leave-for-covid19-vaccinations-10-12-21_0.pdf (ny.gov)
On January 1, 2022, NY Paid Family Leave Law expanded to include siblings (step, adopted, or half) as covered family members for whom paid leave may be taken. The amendment, however, does not appear to cover “in-laws” (at least as of this writing).
New York City Law
Audits of AI Systems. Effective January 1, 2023, employers in New York City that use “automated employment decision tools” (defined broadly to include “any” computer process which issues recommendations or a score or selection-criteria) must conduct annual bias audits, publish the results of those audits, give applicants a notice of the use of such tools and additional information, and give applicants the right to request an alternative procedure. Surprisingly, the law does not require the employer to grant the requested alternative procedure, an oversight which may be remedied during 2022.
Salary Range Requirement. Effective May 14, 2022, employers with four or more employees in New York City must include the minimum and maximum salary range for any position advertised or listed in job postings.
Paid Leave for Child’s COVID-19 Vaccination. Effective November 2, 2021 and through December 31, 2022, New York City based-employees are entitled to four hours of paid leave from their employer for their child’s COVID-19 vaccination. The leave is available for each injection and for each child. Thus, a parent with three children will be eligible for up to 36 hours of paid leave (assuming booster shots will be covered once authorized).
Mandatory Labor Peace Agreements. Effective August 18, 2021, Local Law 2021/087 requires human services contractors and subcontractors to enter into a “labor peace agreement” prior to the award or renewal of a City service contract. City service contracts are those concerning day care, foster care, home care, health or medical services, housing and shelter services, preventative services, youth services, senior centers, employment training and assistance, vocational and educational programs, legal services and recreational programs. Excluded are building service contractors whose primary task is the care and upkeep of property (likely to be covered under City prevailing wage law). Attestation must be submitted that the employer has entered into a labor peace agreement or has not and no labor organization has sought to represent its employees.
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These are just some of the new regulations you may have missed. For additional information about these or any other legal obligations, I urge you to reach out to qualified legal counsel of your choice.