On Tuesday evening, Occupational Safety and Health Administration (OSHA) sent its proposed vaccine mandate to the White House for final review.  OSHA’s proposed rule was drafted in response to President Biden’s September 9 request that OSHA require companies with 100 or more employees to mandate coronavirus vaccinations or weekly testing. Based on the President’s request, OSHA will also require covered businesses to give workers paid time off to get vaccinated and to recover from any side effects from vaccination. The details of the proposed rule are not yet public.

The new requirements are expected to take the form of an emergency temporary standard and will undergo an expedited review process before taking effect. The standard will likely not be open to public comment and will take effect once the Office of Management and Budget (OMB) completes its review and the final emergency temporary standard is published in the Federal Register.

On Tuesday, October 5, 2021, Governor Phil Murphy signed legislation expanding state law protection against age discrimination for those employees who are 70 years of age or older.  The legislation amends the New Jersey Law Against Discrimination (“NJLAD”) in a several important ways.  First, the amendments remove language from the NJLAD that previously permitted employers to forego hiring individuals or offering them promotions if they were 70 or older.  As a practical matter, that provision applied only to smaller businesses who were not covered by the federal Age Discrimination in Employment Act (“ADEA”) which contains no such carve out for older workers.  Thus, the impact of this change likely will be limited.  Second, in a change with similarly narrow effect, workers who are not hired or are denied advancement because they are 70 or older are no longer limited under the NJLAD to filing a claim with the State Attorney General for reinstatement and back pay with interest.  Under the amendments, they have the same avenues of redress and may recover the same damages as younger victims of discrimination.  Finally, the amendments make it more difficult for public entities and public institutions with tenure-eligible employees to set a mandatory retirement age. Previously, public employers could show that “the retirement age bears a manifest relationship to the employment in question” in order to set a mandatory retirement age for a position.  The amendments remove that language.  Now, to set a mandatory retirement age, public employers must show that the employee “is unable to adequately perform the person’s duties.”

The sponsors of the legislation reasoned that these amendments were in line with current workforce demographics and the “graying” of the Garden State’s workforce; people generally are working longer, due to financial need and/or because they continue to have the skills, ability and experience to be productive members of the workforce.

Employers, especially smaller employers, should review any mandatory retirement policies or requirements they have in place.  For all employers, age should not be a consideration in making hiring or promotion decisions.

As we previously posted, the City of Philadelphia is mandating healthcare workers and those who work, volunteer, or attend classes at higher education institutions in the city receive the COVID-19 vaccine.  The initial deadline for all covered individuals to be vaccinated or have a medical or religious exemption was October 15, 2021.

On October 6, 2021, the City announced an extension of the deadline.  According to the Health Department, this extension is to ensure that healthcare institutions and area universities are not left shorthanded and can keep operating at full capacity while waiting for people to get vaccinated.

Updated Deadlines:

  • Healthcare staff in hospitals and long-term care facilities and everyone in higher education settings must receive their first dose of the COVID-19 vaccine by October 15 and submit to regular testing. Health care workers must undergo testing twice per week.  Higher education staff and students have the option of one PCR test or two antigen (rapid) tests each week.
  • Both healthcare workers in hospitals and long-term care facilities and higher education staff and students must receive their second dose by November 15.
  • Healthcare workers outside of hospitals and long term care facilities have until October 22 to receive their first dose of the COVID-19 vaccine. Until fully vaccinated, they must be tested using rapid or PCR testing twice per week.
  • All healthcare workers must receive their second dose by November 22.

Employers may choose to continue enforcing any earlier mandatory vaccination deadlines.  Ballard Spahr’s labor and employment team is ready to assist any employers implementing a mandatory vaccination program that complies with the City’s Emergency Regulation.

In a statement that portends additional scrutiny of the “working conditions” of college and university athletes, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo has publicly stated her view that scholarship athletes at academic institutions are employees who have the right to organize and to be protected from discrimination and retaliation when they act concertedly to improve their working conditions.

In a memo issued on September 29, 2021, Abruzzo declined to refer to these athletes as “student athletes,” explaining that the term “student athletes” was coined for the purpose of denying college athletes workplace protections.  Instead, she asserted that  these athletes meet the broad definition of “employee” under the National Labor Relations Act (“NLRA” or “Act”).

The memo announces that, in certain cases, Abruzzo will consider it a violation of the Act to misclassify such players as “student athletes,” or to lead them to believe that they are not entitled to the Act’s protections.  Further, because these athletes perform services for, and are subject to the control of, the NCAA and their colleges, Abruzzo said the NLRB will consider pursuing a joint employer theory of liability for NLRA violations.

Abruzzo’s memo proposes a departure from the NLRB’s approach in Northwestern University, 362 NLRB No. 167 (2015), where the NLRB expressly declined to resolve the issue of whether college scholarship football players are employees under the NLRA, but found that, as a matter of policy, it would not exercise jurisdiction over student athletes.  In Northwestern, the NLRB noted that working conditions of college athletes are generally set by the NCAA and the athletic conferences in which they play, and thus, union organizing should occur at the conference level, rather than at the school level.  The Northwestern Board concluded that because many of these conferences include non-represented athletes and athletes at public universities over which the NLRB does not have jurisdiction, it would not promote labor stability to exercise jurisdiction.

The September 29 memorandum, GC 21-08, also reinstates GC 17-01, which Abruzzo’s predecessor rescinded in December 2017.  That 2017 memorandum advocated not only for the NLRB exercising jurisdiction over alleged unfair labor practices involving scholarship football players, but also over faculty at religious institutions and other university faculty and students. On March 12, 2021, the NLRB also withdrew a proposed rule that would have exempted undergraduate and graduate student workers from the right to collectively bargain.

Abruzzo’s memo marks the next chapter in her attempt to expand the scope of the NLRA and to push for more aggressive enforcement actions.  These efforts go far beyond student athletes and are likely to touch on every workplace subject to the NLRB’s jurisdiction, whether they have unionized employees or not.

On September 24, 2021, the White House issued Guidance explaining that Federal contractors and subcontractors with a covered contract or contract-like instrument must comply with the following workplace safety protocols:

  1. COVID-19 vaccination of covered contractor employees, except where an employee is legally entitled to an accommodation;
  2. Compliance with masking and physical distancing while in covered contractor workplaces; and
  3. Designation of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

The phrase “contract and contract-like instruments” is not as broad as widely reported in the press. It encompasses a new contract, new solicitation, extension or renewal of an existing contract, and exercise of an option on an existing contract (collectively “new contracts”), if

  • It is a procurement contract for services or construction;
  • It is a contract for services covered by the SCA;
  • It is a contract for concessions, including any concessions contract excluded by the Department’s regulations at 29 CFR 4.133(b); or
  • It is a contract entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.

For covered contracts awarded prior to October 15 where performance is ongoing, the requirements must be incorporated when an option is exercised or an extension is made. For new contracts, the requirements must be incorporated into contracts awarded on or after November 14.

The Guidance also includes a Q&A section with details on the vaccine and safety protocols, workplaces, scope and applicability of the Guidance, and compliance.

Businesses entering into covered contracts with the federal government, or exercising options or extensions in the coming weeks or months, should be prepared to implement the vaccine and masking guidance, and to adjust their practices to maintain compliance with any new guidance in the coming months.

Last week, the Eastern District of Pennsylvania ruled that an employee whose employment was terminated on the same day she disclosed to her employer that she had tested positive for COVID-19 sufficiently pled a claim of “regarded as” disability discrimination under the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act (“PHRA”).  In denying the employer’s motion to dismiss the employee’s claims, the court signaled that COVID-19 may be considered a disability under the ADA and PHRA, a potentially significant development.

The court cited recent guidance jointly developed by the Department of Health and Human Services and Department of Justice stating that certain forms of COVID-19 can “substantially limit major life activity,” including one’s respiratory function, gastrointestinal function, and brain function, for periods lasting months after first being infected.  The court also relied on the employee’s disclosure of symptoms common to certain forms of COVID-19 that can carry longer-term impairment of major life function, such as loss of taste and smell, in declining to dismiss the claims.  In so doing, the court rejected the employer’s main argument that COVID-19 was “transitory and minor,” which designation would have excluded the impairment from being the basis of a viable “regarded as” claim.  Also significant to the court was the fact that the employee was terminated the very same day she disclosed to her employer that she had tested positive for COVID-19.  The court noted that the immediate temporal proximity between the employee’s disclosure of her COVID-19 symptoms and her positive test result and her termination raised a strong inference that her employer regarded her as disabled.

The opinion is available here.

Given the procedural posture of this case, i.e., the court denied a motion to dismiss, it is still an open question as to whether an employee with COVID-19 qualifies for one of the ADA’s three categories of disability, which include (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment.  The lawsuit is one of several in courts across the country considering whether COVID-19 may rise to the level of a disability.  If contracting COVID-19 meets the definition of a disability, a worker with COVID-19 would be entitled to reasonable accommodations, which may include telework or leave.  Accordingly, employers should stay tuned to see how courts address this important question.

On September 23, 2021, the U.S. Department of Labor (DOL) published a final rule announcing when it will assess civil money penalties (CMPs) against employers who retain tips earned by their workers.  Under the rule, available here, the DOL may assess a penalty of up to $1,100 per violation each time it finds an employer retained employee tips, regardless of whether the violation is repeated or willful.  The rule represents yet another move by the agency to protect tipped workers, putting hospitality-sector employers and others with tipped employees on clear notice that it intends to enforce Fair Labor Standards Act (FLSA) requirements aggressively.

In June, the DOL issued new regulations aimed at clarifying the FLSA’s tip credit exception, under which some service employees may receive less than the general minimum wage from their employer if they receive the difference in customer tips.  Its announcements reversed Trump-era rules on topics like work in non-tipped duties, tip pooling, and record-keeping.  This week’s announcement makes clear that the DOL intends to continue its push to aggressively enforce these and other tip rules.

The new rule, first announced in March in a Notice of Proposed Rulemaking, represent the DOL’s interpretation of changes to the FLSA made by Congress in 2018.  It will go into effect 60 days from the date of final publication.  When it does, they will establish that employers, along with any managerial or supervisory personnel, are strictly prohibited from retaining any portion of employee-earned tips, except when the manager or supervisory is solely responsible for providing the tipped service.  Importantly, the prohibition against employers keeping any tips applies in all tip-pool scenarios, including those in which the employer does not take a tip credit.  In addition, the DOL’s decision to pursue CMPs in these scenarios, regardless of employer intent, stands in contrast to its approach to other violations of the FLSA, which generally only result in such penalties when the employer acts willfully or commits the same violation multiple times.

The rule also revises the definition of the term “willful” in the tip credit to include those circumstances in which a violation is committed with reckless disregard for FLSA requirements.  In its explanation of the rule, the DOL specifically notes that such standard may apply in situations in which the agency finds that an employer should have inquired as to whether its tip practices were lawful.  This change, like the first, substantially increases the likelihood that employers will face stiff CMPs, even in situations in which they are not aware of DOL’s standards.

Given the risk of enhanced penalties, all employers with tipped employees must take careful note of the new rule, along with the DOL’s other pronouncement regarding hospitality workers.  The agency’s flurry of activity demonstrates that it takes compensation for such workers seriously and intends to enforce the FLSA standards that cover them forcefully.  The potential that first-time offenders will face high CMPs should cause all employers with tipped workers to review their practices and make sure they pay those employees consistent with these new requirements.

Please join us for the 9th Annual HR Legal Summit, co-sponsored by Ballard Spahr and SEPA SHRM. This year’s HR Legal Summit will be held in the mornings on Thursday, September 30 and Friday, October 1, 2021. We are excited about this year’s virtual conference with cutting edge sessions, top-notch speakers, professional credits, fresh perspectives, career-changing insights, and countless connections!

The Summit will take you on a deep dive into the world of pressing HR legal issues from COVID-19 to the labyrinth of leave laws to ESG to regulating workplace speech to what is coming under the Biden Administration, and much more.

  • Sessions not to be missed:
    • Collaborative Partnerships: HR, the Business, and the Law
    • COVID-19: Are You Ready for the New Normal?
    • Regulating Workplace Speech: Politics, Social Justice and Beyond
    • ESG: HR’s Critical Role in the “S” (Social)
    • Here Today, Gone Tomorrow: Managing the Labyrinth of Leave Law
    • The Biden Administration: What is New and What is Coming?

Plus, our keynote speaker, April Simpkins, will be presenting on The Business Case for DEI – Diversity, Equity and Inclusion.

Sessions are approved for HR Certification Institute credits, SHRM Professional Development Credits, and CLE credits.  We hope that you will join us this year!  The full agenda, additional information, and registration can be found here.

On September 20, 2021, the Biden Administration announced a multi-agency initiative to protect employees from excessive workplace heat exposure.  The Administration acknowledged its public health concern arising from heat waves experienced this summer and what it has identified as a systemic threat to workers from exposure to high temperatures – indoors and outdoors – while doing their jobs.

The White House previewed that the Occupational Safety and Health Administration (OSHA) will publish an advanced notice of proposed rulemaking in the Federal Register next month addressing employers’ obligations to protect workers from injuries cause by heat exposure.  We expect that OSHA’s rules will  focus on employers’ duties to identify and mitigate heat risks, not only in the agriculture and construction industries, but also in industries where workers are employed indoors but not in climate-controlled environments.

Outside of OSHA’s “general duty clause”, the federal government currently does not have a federal worker safety rule in place related to extreme heat exposure in the workplace.  OSHA has, however, issued guidance on working in outdoor and indoor heat environments, available here.  Certain states and localities have also issued heat regulations.

In addition to the rulemaking, OSHA is expected to launch an initiative to conduct planned and surprise workplace inspections on days where temperatures exceed 80 degrees Fahrenheit.  Employers who fail to provide workers with adequate heat mitigation measures, such as water, breaks, proper clothing, and shade could face OSHA citations and accompanying fines.

Employers with workers who work outdoors, or do their jobs indoors where temperatures can become excessive, should take this opportunity to examine their safety rules and protocols to ensure that their workplaces provide for safe operations in the heat.  Employers should also incorporate heat mitigation and cautionary training to employees – both line workers and supervisors – about how to avoid injury and risk in high heat conditions.  In addition, employers should also watch for updates from OSHA and state and local agencies that enforce workplace safety to stay current with new rules and the likelihood of workplace inspections.  Finally, employers should have designated representatives and, in some cases, legal counsel ready to respond and interact with the inspectors when OSHA comes knocking with an inspection, whether that inspection was triggered by a complaint, a new rule, or an industry-wide government safety initiative.

On September 7, the House Ways and Means Committee released bill text that includes a new national, universal paid medical and family leave plan. This bill represents just one portion of the expected $3.5 trillion social spending bill that will advance President Biden’s legislative agenda.

The bill is extensive, but employers should be particularly aware of the following provisions:

  • Beginning in July 2023, the bill provides up to 12 weeks of federal benefits to replace lost wages due to time off for medical leave or caregiving for an ill family member. While the bill appears to follow the contours of the FMLA in terms of leave events, notably it goes beyond the FMLA by including a much broader definition of covered family members. Bereavement would also qualify, but it is limited to three work days maximum.
  • The program covers all workers including full-time and part-time workers, independent contractors, and public and private sector workers. It also applies without regard to employer size, although employers with fewer than 50 workers may be eligible for assistance grants.
  • Eligible workers can apply for benefits if they have at least 4 caregiving hours in a week.
  • Benefits will be awarded based on a sliding scale of wage replacement. Benefits would replace 85% of lost wages for the lowest-income workers and gradually decrease, replacing just 5% of wages for workers earning up to $250,000.
  • Those states that have already enacted paid family and medical leave programs may continue operating those programs, and the House proposal offers federal grants to reimburse those program costs.
  • Employers may be able to seek reimbursement for operating a plan that is as good or better than the public plan and meets a lengthy set of requirements related to the plan.