21

December, 2021

Diverging Vaccine Mandates at NYC/NYS/Fed Levels Present Pitfalls for Unwary Employers

By: Alexandra Lapes and Tracey I. Levy

Employers in New York face a panoply of overlapping and inconsistent obligations at the local, state and federal levels as the government seeks to contend with the latest threats from COVID-19.  New York issued a statewide mandate on December 10, 2021, that all businesses and venues must implement a full vaccination requirement or require masks be worn for everyone on their premises, effective as of December 13, 2021.  In tandem with New York State, on December 15, 2021, New York City updated its “Key to NYC” program to require employers implement a vaccine mandate and require employees who work in-person or interact with the public to show proof of vaccination by December 27, 2021.

Businesses that were part of the original Key to NYC program, which required only one dose of a COVID-19 vaccine, must require proof of a second dose by December 27, while all remaining businesses in the city must require employees to show proof of an initial vaccine dose by December 27, and proof of a second dose within 45 days thereafter.  New York City considers a covered workplace to be any location — including a vehicle — where an employee works in the presence of at least one other person.

Presently, the state’s mandate is effective until January 15, 2022, when it will be reevaluated and may be extended, while the city’s mandate does not have a specific sunset date.

  1. The mandate is full vaccination or full masking – no mix and matching permitted

Many employers in recent months had relaxed masking requirements for employees who are fully vaccinated, while those who are not vaccinated were required to wear a mask in the workplace, except when seated in a private office.  The state’s FAQs make clear that hybrid approach is no longer permissible.  An employer must either require everyone on premises to be fully vaccinated or require everyone — regardless of their vaccination status — to wear a face mask in the workplace.

Under state law, an employer can choose whether to implement a vaccine mandate or mask requirement, but the chosen requirement must apply in its entirety to all staff, patrons, and visitors throughout the premises.  New York City employers do not have that option – they must institute a full vaccination mandate.  If full vaccination is not applied uniformly to all, then New York State requires the employer to ensure everyone in its workplace complies with the masking requirement.

  1. Full vaccination currently means up to two doses

New York State defines “fully vaccinated” in accordance with the CDC’s definition, as 14 days past an individual’s last vaccination dose in their initial vaccine series (14 days past the second shot of a two-dose Pfizer-BioNTech or Moderna vaccine; 14 days past the one-shot Janssen/Johnson & Johnson vaccine).

  1. Face masks can be removed only for limited circumstances of limited duration

For businesses adopting a masking requirement, that requirement allows few exceptions.  In offices, masks can be removed only when necessary to eat or drink, or when an employee is alone in an enclosed room. Even in restaurants and bars, unless the business is strictly enforcing a full-vaccination requirement for everyone on premises, patrons can only remove masks when eating or drinking; restaurant staff must be wearing a face mask at all times.  For tv and film production, the talent can remove a face mask during filming, but must maintain six feet of distance from all others, such as the crew and production staff, and masks must otherwise be in place for everyone on premises. Hospital and healthcare settings must continue to ensure all employees and visitors are masked at all times, regardless of vaccination status.

  1. Granting a vaccination exception for those with accommodations means the employer does not have a “full vaccination” program under the New York State mandate

Employers who grant exemptions as an accommodation for individuals because of a medical, religious or other legally protected reason and permit those individuals entry on the premises apparently must then implement a masking requirement for everyone.  While the impact of accommodations on the full vaccination requirement is not explicitly addressed in the FAQs, one specific FAQ juxtaposes the prohibition on a hybrid approach of full vaccination or masking with a reference to the continuing responsibility of “unvaccinated individuals, including those with medical exemptions” to wear masks in accordance with CDC guidance.  The FAQs also footnote that they should be interpreted consistently with the Americans with Disabilities Act, workplace safety guidelines and applicable regulations.  It therefore appears that, when exceptions are made and a full-course vaccine requirement cannot be maintained in its entirety, all individuals in the workplace must be held to a masking requirement.

  1. Employers cannot automatically ban from the workplace all employees requesting a vaccination exemption as a reasonable accommodation

New Guidance for Employers on Equitable Implementation of COVID-19 Vaccine Requirements, published by the New York City Commission on Human Rights (NYCCHR), reminds New York City employers of their obligation to engage in a “cooperative dialogue” with any employee who requests to be exempted from complying with a vaccination requirement as a reasonable accommodation – whether based on disability, pregnancy, childbirth, lactation, religious beliefs  or observances, or status as a victim of domestic violence, stalking, or sex offenses.  The guidance recognizes that remote work or unpaid leave – actions that keep the unvaccinated individual out of the workplace – may be a reasonable accommodation, but indicates that placing an unvaccinated employee on leave should only be considered if no reasonable accommodation is possible that would enable the employee to continue performing the employee’s job duties in the workplace without posing a direct threat or an undue hardship.

Employees are supposed to submit requests for a reasonable accommodation under the Key to NYC program by December 27, 2021.  If an accommodation is granted, New York City employers must keep record of the basis for the accommodation and any supporting documentation.

  1. NYC requires employers verify and keep record of vaccination status

Under the Key to NYC program, employers cannot rely on an honors system or self-attestation of vaccination status.  Rather, employers must check each employee’s vaccination record (a CDC or other official immunization record, or the NYC COVID Safe App, the CLEAR Health Pass or the Excelsior Pass) and keep a record of each worker’s proof of vaccination, either by:

  • making a copy of the employee’s vaccine proof or a record of a reasonable accommodation with supporting documentation;
  • creating a paper or electronic record that includes the employee’s name, vaccine status including the date they must provide the second dose (if only submitting proof for the first dose), and record of a reasonable accommodation with supporting documentation; or
  • checking each employee’s proof of vaccination before they enter the workplace each day and keeping a record of each verification.

Independent contractors or non-employees must also provide proof of vaccination.  A New York City business can request that a contractor’s employer confirm proof of vaccination.

  1. NYC is requiring signage and certification of compliance

New York City employers have two additional obligations:

  • complete an official attestation sign created by the Department of Health and Mental Hygiene, affirming compliance with the vaccination requirement, and post it in a public space by December 27, 2021 (even if the business also has its own signage about vaccination); and
  • place the Vaccination Required Poster for Businesses in a place that is clearly visible to people before they enter the premises.

Pulling it together, with consideration of pending federal mandates

In addition to the layers of requirements issued by New York State and New York City, employers nation-wide with 100 or more employees need to anticipate that they will be subject to vaccination or weekly testing requirements under an OSHA directive, as we discussed in this prior blog article.  We have summarized the combined impact on the federal, state and local levels in the chart below.

While enforcement of the OSHA directive had been stayed by the federal appellate courts, the Sixth Circuit Court of Appeals dissolved the stay on December 17, 2021.  Pending further action by the Supreme Court, OSHA has advised employers that it will not issue citations for noncompliance before January 10, 2022, and will not issue citations related to the testing option before February 9, 2022, provided the employer is making good faith efforts to come into compliance.

Employers that are imposing a full vaccination requirement, either under the Key to NYC program or to meet the New York State mandate, may need to update their policies, but should otherwise have minimal additional obligations under the OSHA directive.  New York State employers with at least 100 employees that are instead adhering to a full-time masking requirement, and do not already impose a weekly testing obligation for their unvaccinated employees, will have additional compliance obligations under the OSHA directive.

Keep checking for new developments

The only thing certain about these requirements is that there could be more changes in the weeks to come.  Businesses should review their policies and procedures to ensure compliance with the current mandates and continue to check dedicated COVID-19 government websites and get legal advice to ensure compliance with any new requirements.

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28

November, 2021

NYC’s Condemnation of Employment At-Will Chases a Bogeyman to Correct for Bad Management

By Tracey I. Levy

Crain’s New York Business reported in its November 22, 2021 issue that six of the seven New York City Council speaker candidates support modifying or ending the concept of employment at-will, in favor of a “just cause” standard.   If the just cause requirement that New York City put into effect this past year for fast food franchises is to be the model for all employers going forward, New York City employers have much to worry about.  Such a plan would essentially take a hatchet to solve a problem that is fundamentally one of bad management, with little regard to the myriad repercussions for employers.

The concerns that the City Council speaker candidates reportedly cited as grounds for scaling back or eliminating employment at-will were threefold: the unfairness of being terminated without just cause, the perception that employment at-will “primarily” impacts communities of color, and the difficulties that a sudden job loss present for employees with families.  In regard to the third concern, Councilman Francisco Moya was quoted as saying that “’[i]n certain jobs, workers can be fired for taking the day off or for bringing their kid to the doctor.’”  The council speaker candidates seem to lack a full appreciation of the protections already afforded to employees under current federal, state and local laws that collectively impose myriad incursions on the concept of employment at-will.

Communities of Color and Certain Employee Actions Are Already Legally Protected

First and foremost, to the concern of the impact on communities of color, our current employment law protections expressly prohibit any employer from taking adverse action against an employee based on more than 20 protected characteristics, including race, color, national origin or ethnicity.  Woe to the employer that terminates an employee of color without any legitimate business reason.  An employer that falls back on the shield of employment at-will in that situation leaves itself with little more than a pie plate by way of defense to a discrimination claim, as the absence of any legitimate business reason gives rise to an inference of discrimination that can be impossible to disprove.

It often is noted that many European countries have just cause requirements for termination of employment.  That is true, but European countries also operate under a rather different legal system than what was developed in the United States, with a far greater emphasis on codes and adherence to procedural protections and a considerably lesser role for protection of individual rights through court action.  Some may think that system is better.  Certainly, it is different.  But both are designed to protect against certain employer overreaching, and it would be a mistake to port over a small slice of a foreign country’s legal system without looking at the entirety of its legal structure and how that contrasts with current systems already in place here.

Councilman Moya’s comments about workers being fired for taking the day off or bringing their child to the doctor also appear to be based on a misunderstanding of current legal protections.  New York State and New York City law both provide employees with paid sick and safe leave time, and employees can use those days for a broad range of reasons, including if they personally feel unwell, or need to care for a sick child or take their child to a well-visit with the child’s doctor.  An employer that fires an employee in contravention of those state and city laws faces the full weight of the enforcement provisions, including civil penalties, orders of reinstatement, and payment of back wages and benefits.

Unfairness or Surprise Does Not Equate to Lack of a Legitimate Reason

As to the concerns of unfairness and sudden job loss, in my experience most employee terminations are not for lack of cause, but they may well be perceived as sudden or unexpected by an employee due to ineffective communications and sub-optimal performance management practices.  Giving pointed performance feedback is hard.  I have been coaching managers and HR professionals through it for decades now, and it never gets easier.  As a manager myself, one of the least favorite aspects of my job is when I need to tell an employee that the employee’s work, attitude, behavior (or all three) is not meeting my expectations.  Countless times I have worked with organizations that have “packaged someone out,” offering some amount of severance to an underperforming employee to hopefully part ways quietly because the organization can no longer tolerate making do with the employee’s subpar delivery, but the organization also recognizes that it did not effectively communicate its dissatisfactions to the employee over the preceding weeks, months, or years.

It’s not just that managers dislike having difficult conversations.  Often organizations need to balance competing demands, such as maximizing productivity, delivering on a key product or deadline, or accepting the realities of a tight job market or hiring freeze.  In each of these situations, a manager may elect to keep the employees the manager has, no matter how marginal the performance, because the time and expense of managing the employee out may be too great.  Just in this past year, I can think of repeated instances in which an organization explained to me that an employee had been told of the employee’s errors on multiple occasions, but the manager did not expressly inform the employee that such errors were viewed as performance concerns because the employee had a pivotal role in one or more key projects and the organization did not want to deliver pointed, critical feedback that might leave the employee feeling demotivated.  The organization made the choice to continue with the employee they had, until they finally reached their wits’ end or the project was at a less critical stage, such that they concluded it was now wiser to make a staffing change.  Those organizations each had just, and ample, cause for the termination decisions they made, but to the impacted employees, the decisions may have felt unfair and sudden.  Chasing the bogeyman of employment at-will therefore will not solve the problem, nor is it clear why the City Council needs to be legislating in this area.

The costs of recruiting, hiring and training new employees further disincentivize organizations from terminating employees willy-nilly, without cause.  Nearly every client and business owner I speak with, in a broad range of industries, are finding it difficult to hire qualified, motivated employees at present.  They certainly are not firing their current people if it is remotely possible for them to avoid doing so.  Social media and websites like Glassdoor further serve as a check on employers engaging in baseless termination decisions.  Disgruntled employees make their views known on those websites, and bad reviews can hamper an organization’s recruiting efforts.

I am not so naïve as to believe there are no employers out there that engage in bad employment practices.  However, returning to my initial hatchet analogy, the remedy being proposed by so many of the candidates for council speaker overlooks a range of legal and practical checks on employer behavior that collectively offer substantial protections to many employees.  The problem with a just cause requirement is not so much in the need for employers to have reason to terminate an employee; currently, in most situations, those reasons already exist.  Rather, the problem, as discussed in my prior blog article on the fast food franchise law, is that the definition of “just cause” under such a law and the processes that accompany the enforcement of such a requirement hamstring employers in myriad other ways.  Any legislative response must consider those implications.  Notably, Montana, which was the first and has long been the only state to require “good cause” for termination, substantially scaled back its employee protections earlier this year, following its experience of years of litigation over the specifics of employer termination decisions.

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19

November, 2021

NYCCHR/EEOC Diverge on Accommodations to Vaccine Mandates

By Tracey I. Levy and Alex Lapes

Recent updates to technical assistance from the Equal Employment Opportunity Commission (EEOC) and guidance from the New York City Commission on Human Rights (Commission) reflect the continuously evolving expectations with regard to vaccine mandates and adherence to accommodation requirements under equal employment opportunity laws, and also highlight some differences in approach that New York City employers cannot overlook.  The challenge for employers is that, while they are permitted (and in some cases required) to mandate that all employees who physically enter the workplace be vaccinated against COVID-19, when enforcing that mandate, they need to provide reasonable accommodations to employees who object to a vaccination requirement due to:

  • disability;
  • pregnancy (either in its own right under New York law or for pregnancy-related conditions that constitute a disability under federal law); or
  • a sincerely held religious belief, practice, or observance.

The EEOC has updated its technical assistance Q&A’s on COVID-19 and EEO laws three separate times in the past month (October 13, 25, and 28, 2021), particularly Section K and new Section L, to address various issues that may arise when employers navigate vaccine-related accommodation requests.  Piggybacking on the EEOC’s guidance, on November 1, 2021, the Commission updated its COVID-19 resources to adopt some, but not all, of the EEOC’s stance on the subject of accommodations.

Divergence on What Triggers Consideration of a Reasonable Accommodation

EEOC guidance clarifies that an employee or a third party (i.e. employee’s healthcare provider) must notify the employer of the need for a reasonable accommodation because of a qualifying reason.  Under federal law, accommodation requests based on medical conditions (or underlying conditions) or religious beliefs or practices do not require the employer to initiate that process and, absent notice from the employee about such a request, employers have no obligation to inquire or take action, even if an employer knows an employee is at higher risk for severe illness if the employee contracts COVID-19.

Conversely, the Commission has stated that, under the New York City Human Rights Law (NYCHRL), employers are required to initiate the conversation and to engage in a “cooperative dialogue” with an employee when the employer knows or has reason to know that the employee may require a reasonable accommodation.  For example, a New York City employer who knows that an employee has a medical condition that might place the employee at “higher risk for severe illness” if the employee contracts COVID-19 is required under city law to engage with the employee in a cooperative dialogue about a potential accommodation, even without the employee requesting one.  In order to satisfy this obligation, the Commission recommends New York City employers remind all staff of the employer’s policies regarding reasonable accommodations and the process for requesting those accommodations.

Disability Considerations

The EEOC and the Commission are consistent on their guidance that simply asking for information to confirm whether an employee is vaccinated against COVID-19 is permissible and is not a disability-related inquiry.  However, employers who require employees to provide medical documentation on vaccine status must ensure that, as with all medical information, it is kept confidential and separate from other personnel files.

Pregnancy Considerations

Under federal law, unless an employee has a pregnancy-related condition that qualifies as a disability, the EEOC has explained that employers are encouraged but not required to explore reasonable accommodations for a pregnant employee.  The EEOC further noted that employers must ensure pregnant employees receive the same job modifications (including changes to work schedules, telework, or changes to work schedules or assignments) in response to their pregnancy-related accommodation requests as would other employees who are similar in their ability or inability to work.

The Commission goes one step beyond the EEOC, and affirmatively requires employers to engage in a cooperative dialogue and explore possible accommodations for a pregnant employee who requests an exemption from a vaccination mandate.

Religious Objection to Vaccination

Most of the new EEOC guidance pertains to religious objections to an employer’s vaccine mandate, and in that context the NYC Commission has explicitly adopted the following provisions from the EEOC’s guidance:

  • Employees and applicants must inform their employer if they seek exemption from a vaccine mandate based on a sincerely held religious belief, practice, or observance. While there are no “magic words”, the employee or applicant has an obligation to notify the employer if there is a conflict between their religious beliefs and the employer’s vaccine mandate.
  • Employers are permitted to ask the employee to explain how the employee’s religious beliefs conflict with the employer’s vaccine mandate. Employers have no obligation to accommodate employees who seek exceptions to a COVID-19 vaccination requirement based on social, political, or economic views, or personal preferences.  Therefore, the EEOC has stated, and the Commission has agreed, employers are permitted to make a limited factual inquiry and seek additional information from the employee, if they have an objective basis to question the sincerity of a particular belief.  Factors to be considered in evaluating the credibility of an employee’s sincerity as to a religious belief include prior inconsistent conduct (with the caveat that employees need not be scrupulous in their religious observance), whether the accommodation benefit would likely be sought for nonreligious reasons, whether the timing of the request makes it suspect, and whether the employer has other reason to believe the accommodation is not for religious reasons.
  • Significantly, though, when weighing these factors, employers also need to be mindful that the definition of religion is broad and protects both the major organized religions and “religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.”   The EEOC’s own religious accommodation request form, which it offers as an example of an appropriate scope of inquiry, is very limited in its probing of an individual’s religious beliefs.
  • Employers do not need to grant the requests of all employees who seek an accommodation based on religion. Employers are permitted to take into account the cumulative cost or burden of granting accommodations to other employees and should evaluate religious objections on a case-by-case basis depending on the specific factual circumstances of the employer’s business. As with all accommodations, if more than one accommodation would effectively eliminate the religious conflict, then the employer may choose which accommodation to offer.  An employer may also discontinue a previously granted accommodation based on changed circumstances, although the EEOC suggests as a best practice that employers discuss and evaluate alternative accommodations with the employee before discontinuing a religious accommodation.

The Commission has further expressed its agreement with the EEOC’s guidance that employers need not accommodate an employee’s belief if the employer demonstrates “undue hardship” on its operations.  In practice, however, the EEOC and the Commission define undue hardship in this context quite differently.  A minimal cost to accommodate an employee’s religious belief is an undue hardship under Title VII and employers may consider direct monetary costs as well as the burden on the employer to prevent the risk of the spread of COVID-19 to other employees or the public.  The EEOC’s guidance notes an employer may consider whether the employee works alone or with others, their contact with the public, and especially their contact with vulnerable individuals.

In contrast, the NYCHRL defines undue hardship as “an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or violation of a bona fide seniority system).” New York City employers should consider such factors as the identifiable cost of the accommodation, how many individuals will need the accommodation based on religion, and for employers with multiple facilities, the degree to which geographic separateness or administrative or fiscal relationship will make the accommodation more or less difficult.  Notably, under the NYCHRL, a religious accommodation will only be deemed an undue hardship “if it will result in the inability of an employee who is seeking a religious accommodation to perform the essential functions of the position.”

Takeaways

Employers in New York need to be ever mindful that compliance with federal requirements and guidance from the EEOC, OSHA, the CDC and other federal government agencies merely sets the floor in terms of legal standards.  New York State and New York City can and have been imposing additional obligations on employers and granting greater protections for employees in the context of addressing COVID-19.  New York City employers who mandate vaccinations need to ensure their policies and procedures allow employees to request an exemption from that requirement as a reasonable accommodation and entertain that request in a manner that does not discriminate or treat differently any employees based on protected characteristics.

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19

August, 2021

The Lines Have Been Redrawn; “Build Back Better” with Respectful Workplaces in New York

By Tracey I. Levy

Perhaps one of the most troubling quotes coming out of the investigation of sexual harassment allegations raised against Governor Andrew Cuomo was his statement, “In my mind, I’ve never crossed the line with anyone, but I didn’t realize the extent to which the line has been redrawn.”  He added, “There are generational and cultural shifts that I just didn’t fully appreciate.”

Indeed, there have been “generational and cultural shifts,” which were accelerated by the #MeToo movement.  The lines have been redrawn, expectations have shifted, and many organizations began revising their policies and practices years ago to hold employees to a higher standard of acceptable workplace behavior.  The law itself shifted substantially in New York State beginning in 2019, and employees (particularly managers) who do not recognize that shift now present a liability issue for their organizations.

Formerly, harassment was defined by the courts in New York, which looked to federal law to provide a wordy definition, considering, with respect to unwelcome conduct based on a protected characteristic, whether submitting to the conduct was made explicitly or implicitly a term or condition of an individual’s employment; submitting to or rejecting the conduct was used as the basis for employment decisions affecting an individual; or the conduct had the purpose or effect of “unreasonably interfering” with an individual’s work performance or creating an “intimidating, hostile or offensive” working environment, with the final element requiring consideration of whether the behavior was so severe or pervasive as to rise to the level of actionable harassment.  The standard is a mouthful to recite, hard to memorize, and overwhelming on a powerpoint slide.

In 2019, as part of Governor Cuomo’s “Women’s Justice Agenda,” the governor signed into law sweeping changes with regard to the legal standard and enforcement provisions for claims of sexual harassment.  Significantly, the law adopted a new, far simpler definition of sexual harassment (which was subsequently broadened to harassment based on other protected characteristics), as subjecting an individual “to inferior terms, conditions or privileges of employment based on” a protected characteristic.  Not only is the new standard pithy, but the law then expressly goes on to state that an individual need not show that the behavior is severe or pervasive.  Rather, it is for the employer to demonstrate that the conduct was nothing more than a “petty slight” or “trivial inconvenience.”  The legal bar for asserting unlawful harassment dropped precipitously with the new law, and the governor’s press release at the time expressly quoted him trumpeting that change: “By ending the absurd legal standard that sexual harassment in the workplace needs to be ‘severe or pervasive’ and making it easier for workplace sexual harassment claims to be brought forward, we are sending a strong message that time is up on sexual harassment in the workplace and setting the standard of equality for women.”

So how could the very individual who made these legal changes a centerpiece of his legislative agenda have fallen so far short in his own behavior?  Why, in 2021, are we still so fervently teaching the lessons of #MeToo, and how can we effectuate lasting change?  These are the questions that keep me up at night, and that I mull over at random hours.  How do we “build back better” when it comes to workplace culture?

I have no magic antidotes, but certain elements are important in progressing toward a more comfortable workplace.

Commitment from Senior Leadership

As with so many other organizational changes, there needs to be buy-in from the top.  If senior leadership shares the New York governor’s perspective, little if anything will change in their organizations.  Senior managers need to lead by example – both in articulating a commitment to providing a respectful workplace, and in conducting themselves publicly and privately in a manner that comports with that articulated standard.

Putting Sidewalks Around the Law

Preventing harassment based on sex and other protected characteristics is the legal standard.  But when that is our only goal, we end up quibbling about whether an individual’s behaviors do or do not exceed the level of a “petty slight” or what we mean by a “trivial inconvenience.”  Organizations should aim for something broader – offering a “respectful” workplace to employees and everyone else in the workplace.  We need to define what we mean by “respectful,” and that definition should both embody and exceed the legal standard.  Perhaps that means that an organization equally prohibits bullying behavior, which is not singling someone out based on a protected characteristic, but which most certainly can create an uncomfortable or intimidating work environment.  Or perhaps the organization wants to define expectations with regard to how employees communicate with one another – that such communications should be civil, and that employees should be able to articulate their perspective and have their views duly considered.  Alternatively or additionally, employers might address respectful behavior in terms of collaboration, and fostering a team environment where individuals feel supported.  The common and essential component of all these definitions is that they put “sidewalks” around the law by setting forth standards that embody and exceed the current legal standard.  When our goal is broader than the legal standard, the harassment takes care of itself so to speak, in the sense that it is definitionally inconsistent with and therefore should not be occurring in a truly “respectful” work environment.

It Takes a Village

Managers cannot single-handedly root out harassing behavior or impose a culture of respect, nor can any individual or series of complaints give rise to lasting organizational change.  Rather, an organization needs to encourage, empower, and perhaps even mandate that its employees go from bystanders to “upstanders.”  Here the New York City subway safety tagline is most apt – “if you see something, say something,” and that is the mantra to be inculcated throughout the organization.  But it is not sufficient to adopt a catchy refrain.  Employees need to be trained – on what the standards and expectations are for measuring appropriate behavior, about how they can intervene, and on where to submit concerns.  The New York State or New York City versions of the mandatory harassment prevention training programs are not sufficient for that purpose.  Rather, targeted messages, specific to those expectations, need to be communicated to employees and then reinforced at periodic intervals.

You May Need to Change

At times, a manager will seek to excuse questioned behavior with a comment along the lines that the manager is “no different than I was when I started working here,” however many years ago that may have been.  In a nutshell, the manager’s comment precisely illustrates the problem.  The lines have been redrawn.  We are holding employees, and everyone in the workplace, to a higher standard than was the case in 2017.  But that higher standard may not be the optimal objective from a cultural perspective.  Creating a comfortable, respectful workplace requires organizations to do more.  In doing so, an organization may also reap manifold benefits in employee morale, retention, and productivity, as well as reputation, that “build back better” and even help the organization’s bottom line.

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14

July, 2021

Four New State Laws Require Actions by Connecticut Employers to Achieve Compliance

By Alexandra Lapes and Tracey Levy

After a very quiet 2020, this past legislative season has brought a series of new mandates for private employers in Connecticut.  These include new obligations regarding reasonable accommodations for breastfeeding employees, extended time off to vote, new parameters for pay equity, and updates to cannabis workplace protections, as Connecticut has joined New York and New Jersey to legalize recreational cannabis this year.

Breastfeeding Workers Receive Additional Protections
Beginning October 1, 2021, employees are entitled to enhanced protections when expressing breast milk in the workplace.  Existing law required employers to make reasonable efforts to provide a room or other location in close to proximity to an employee’s work area to breastfeed.  Amendments to the law dictate specifics about the type of room that must be made available.  Employers must ensure the room is: (1) free from intrusion and shielded from the public while the employee uses the room, (2) situated next to or near a refrigerator or other employee-provided portable cold storage unit for the employee to store the milk, and (3) includes access to an electric outlet, provided that there is no undue hardship for the employer.

Unpaid Time Off to Vote
If requested at least two days in advance, employers must provide all employees with two hours of unpaid time off to vote in any state election or, if the employee is an elector, for any special election of a legislative representative at the federal or state level.  The law took effect immediately upon its passage but is scheduled to sunset on June 30, 2024.

Pay Equity and Transparency
Connecticut has revised its equal pay act to prohibit pay differences between sexes for comparable work (previously the standard was “equal” work) on a job.   Employers must evaluate comparable work as a composite of skill, effort, responsibility, and whether performed under similar working conditions.  Differentials in pay may be lawful if the employer can demonstrate they are based on bona fide factors other than sex, including but not limited to, education, training, credentials, skill, geographic location, or experience.

The new law, which takes effect October 1, 2021, also imposes new pay transparency obligations that require employers to disclose to applicants and employees the “wage range” for the position they are applying to or occupy.  For job applicants, the wage range must be disclosed upon the earliest of the applicant’s request or prior to or at the time a job offer is made that includes compensation.  For employees, the wage range must be disclosed upon hire, a change in the employee’s position, or the employee’s first request.

The law defines “wage range” as the range of wages an employer anticipates relying on when setting wages for a position, and the reference may include any applicable pay scale, range of wages previously determined for the position, the actual range of wages for current employees holding comparable positions, or the employer’s budgeted amount for the position.  The law provides a two-year limitation period for actions against employers who violate the new requirements and provides for various remedies and damages.

Legalization of Recreational Cannabis
Connecticut has now become the 19th state to legalize recreational cannabis use for adults aged 21 and over.  Effective July 1, 2022, employers in Connecticut may not prohibit the off-work use of cannabis or take adverse action against an employee or potential employee for use of cannabis prior to applying for, while working for an employer, or based on a positive THC test, except under limited circumstances and only with advance written notice.

As in New York and New Jersey, the Connecticut law makes clear that employers are not required to make accommodations for an employee to use cannabis while performing job duties, and employers can prohibit employees from possessing or consuming cannabis while at work.  The law also allows employers to take adverse action against employees who are impaired at work, upon (1) reasonable suspicion of an employee’s use of cannabis while engaged in the performance of the employee’s work responsibilities at the workplace or on-call, or (2) upon determining that an employee manifests specific, articulable symptoms of drug impairment while working or on-call that decrease or lessen the employee’s performance of the employees’ job duties.

Employers can also drug test employees or applicants and discipline or terminate an employee, or rescind a conditional offer of employment, based on a positive drug test result in certain circumstances.  As a threshold matter, the employer must have an established written policy that prohibits possession, use or other consumption of cannabis by an employee, and the policy must be made available to each employee (either physically or electronically), prior to the enactment of the drug testing program.  For job applicants, the drug testing policy must be made available to each prospective employee at the time the employer makes an offer of conditional employment.  Without this advance written notice, the employer cannot take any actions with respect to an employee’s use or possession of cannabis products outside the workplace.

Even if the employer has provided appropriate notice, however, employers cannot discipline employees or applicants based solely on a positive drug test.  Rather, they additionally need to show that:

  • failing to discipline/revoke an offer would cause the employer to lose a federal contract,
  • the employer reasonably believes the employee is engaged in cannabis use while performing the employee’s work duties, or
  • the employee manifests specific, articulable symptoms of drug impairment while working that decrease or lesson the employee’s performance.

An individual aggrieved by an employer’s violation of these provisions has 90 days to file a claim in state court.  However, a cause of action will not be implied in several circumstances, including but not limited to, if the employer had a good faith belief that an employee used or possessed cannabis while performing work, in violation of an employer’s workplace policy.

Takeaways
These new laws require updating employment policies.  Updates to comply with unpaid voting leave need to be put in place immediately, while employers have until October 1 to update their policies and practices with regard to breastfeeding accommodations and pay transparency.  Employers may want to undertake a review of their compensation practices to confirm they will meet the new “comparable work” standard.  Finally, employers have until next July 1 to develop and distribute written policies with regard to drug testing and maintaining a drug free workplace if they wish to police cannabis usage in the workplace.

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