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July, 2021

Employers Throughout the NY Tri-State Area Face New Obligations: Takeaways Summer 2021

Summer 2021 has brought changes for employers throughout the New York tri-state area, as New York is mandating employers plan for the next pandemic; New Jersey is cracking down on wage law violations; and Connecticut passed four significant new employment mandates on cannabis use, nursing mothers, pay equity and voting. Employer obligations in response to COVID, on the other hand, are now dictated largely at the federal level. Our Summer 2021 issue of Takeaways covers all these legal developments, as well as the most recent federal employment law changes and relevant court decisions.

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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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8

July, 2021

Clock Is Now Ticking for NYS Employers to Adopt Workplace Safety Plans Under HERO Act

By Tracey I. Levy

The New York State Department of Labor yesterday posted on its website an Airborne Infectious Disease Exposure Prevention Standard, a model Airborne Infectious Disease Exposure Prevention Plan, and industry specific templates (which can be accessed on a dedicated webpage) to implement the HERO Act.  The industry-specific templates cover agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail.

As we discussed in our prior blog article, the HERO Act requires all New York State employers to adopt airborne infectious disease exposure prevention plans that meet or exceed the state’s published standards.  Employers now have 29 more days in which to draft their own safety plans, and an additional 30 days to distribute their plans to current employees.  All plans thus need to be drafted and distributed by Labor Day 2021.

The model plan includes minimum controls with which we have all become very familiar over the past 15 months, including stay at home policies for those exhibiting symptoms, health screenings, face coverings, physical distancing, hand hygiene, cleaning and disinfection, “respiratory etiquette,” and special accommodations for those at greater risk.  Additional controls may be required in situations that present higher risk of exposure.  Significantly, while the planning must be done and documented now, these controls need only be put into place in the event that the state Commissioner of Health designates an airborne infectious disease as highly contagious presenting a serious risk of harm to the public health. Presently there is no such designation in effect in New York (even for COVID-19).

The model plan further includes provisions on:

  • training and information dissemination during a designated outbreak;
  • plan evaluations;
  • acknowledgment that all controls to be implemented have been obtained, properly stored and maintained; and
  • a complaint reporting process and reassurances against retaliation for reporting concerns.

Employers that choose to adopt the state’s model plan should note that the plan requires customized information to be specified in certain sections – you cannot simply download the document and distribute it as is.  Alternatively, employers may want to use the return-to-work plans that they previously developed under the New York Forward program following the COVID-19 shutdown as a starting point in developing their HERO Act plans, but this can only be a starting point and employers should confirm that their plans cover all the elements incorporated in the model HERO Act plan.

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3

June, 2021

All NY Employers Need to Develop Safety Plans Under HERO Act

By Tracey I. Levy and Alexandra Lapes

Note Important Update below.

Responding to the perceived lack of sufficient worker protections issued by OSHA and frustration with the lack of federal leadership in the prior presidential administration with regard to COVID-19 safety measures, New York State adopted the Health and Essential Rights (“HERO”) Act, which mandates a plethora of new safety standards for all employers.  The HERO Act officially takes effect June 4, 2021, but the Act itself only enumerates the 11 elements of an employer safety plan and leaves it to the New York State Department of Labor (DOL), in consultation with the Department of Health (DOH), to actually develop a model airborne infectious disease exposure prevention plan, with industry-specific standards, that will set the minimum standard for each of the 11 elements of the safety plan.  To this point the DOL/DOH have not issued the model plan or any guidance on the new safety standards.

For employers with more than 10 employees, effective November 1, 2021 the HERO Act will additionally borrow a concept that may be familiar to unionized workplaces, and permit employees to establish and administer a joint labor-management workplace safety committee.  If requested, the members of such a committee must be at least two-thirds non-supervisory employees, and the committee must be co-chaired by a representative of the employer and a non-supervisory employee.  The purpose of the safety committee is to adopt workplace safety standards, develop ways for reporting concerns, review applicable policies, participate in site visits by government health and safety officials, and review any reports filed by the employer related to health and safety.  The committee is expected to meet at least quarterly, during work hours.  Employers cannot interfere with the selection of committee members and must pay committee members for time spent attending training on safety standards.

As with so many new employment law obligations, the HERO Act prohibits employers from discriminating or retaliating against employees who seek to enforce the rights provided under the law.

What NY Employers Need to Do Now

The model safety plan will cover the following eleven topics:

1. employee health screenings,

2. face coverings,

3. personal protective equipment provided at the employer’s expense,

4. hand washing and breaks for hand washing,

5. cleaning shared equipment and other frequently touched surfaces,

6. social distancing,

7. quarantine orders,

8. engineering controls such as air flow and ventilation,

9. designated supervisor(s) to enforce safety standards,

10.compliance with notice requirements to employees and government officials, and

11.verbal review of safety standards, employer policies, and employee rights.

Most, if not all, of these are already significant considerations that employers have been working through over the course of the pandemic as they have sought to maintain/reopen their workplaces and protect the safety of their employees, clients, customers and visitors.  Any New York employer that thought that widespread vaccinations might bring an end to these measures should reassess their approach and continue with workplace operational plans that consider the latest guidance from the Centers for Disease Control and New York State on all 11 of these elements, pending more definitive guidance from DOL/DOH.  Employers should compile a written document (their own “safety plan”) that memorializes their approach with regard to each of the 11 elements.

Notably, once a model safety plan has been developed by the state, employers will either need to adopt that plan, or compare it against their own written safety plan to ensure the employer’s plan meets or exceeds all elements of the state’s model safety plan.  Employers will be required to provide a copy of their written safety plan to all employees, in English and any other primary language, at multiple times/in multiple formats:

  • as of the first opportunity, be that the effective date of the Act, upon hire, or upon the employee’s return to the workplace;
  • as a workplace posting in a visible location;
  • in the employee handbook (if the employer has one); and
  • whenever requested by the employee.

One of the most publicized and challenging aspects of the HERO Act for employers is that it imposes significant enforcement provisions:

  • hefty fines and monetary penalties, and
  • empowering individual employees to sue for non-compliance and seek both a court order forcing compliance with the law, as well as liquidated damages of up to $20,000,

unless the employer can demonstrate good faith attempts to comply.

Proposed amendments to the law, which are currently wending their way through the legislature, reportedly in accordance with an agreement on which the Governor conditioned his signature of the original version of the HERO Act, are intended to lessen the enforcement provisions, extend the deadlines for compliance, and make other clarifications.  If adopted, the amendments will remove the liquidated damages clause and the requirement that the employer demonstrate good faith attempts to comply, and instead require the employee to provide 30 days’ advance notice of a perceived violation to the employer, limiting the right to sue to circumstances in which the employer “demonstrates an unwillingness to cure a violation in bad faith.”  A prevailing employee is entitled to recover reasonable attorneys’ fees and costs under the HERO Act, and the proposed amendments would enable a court to similarly award reasonable attorneys’ fees and costs to a prevailing employer in the event a claimed violation of the Act is found to have been frivolous.  The amendments would further extend the effective date of the law out to July 5, 2021, and grant employers 30 days to draft their own safety plans, beginning as of the date the DOL/DOH issues the model safety plan, plus an additional 30 days to distribute the plan to current employees.

If adopted, the amendments would thereby effectively give employers until around Labor Day to distribute their written safety plans.  While the amendments are still pending, however, employers are left in a somewhat precarious state as the HERO Act technically requires immediate development and distribution of a written safety plan, but the required elements of that plan have not yet been defined and, even once issued, it will take employers some time to review and incorporate them.

Important Update as of 6/15/21: The New York State legislature passed the amendments to the HERO Act, thereby delaying the deadline for compliance and lessening the enforcement provisions.

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3

June, 2021

The Courts Have Awoken: Takeaways Spring 2021

After a dearth of notable caselaw over the course of the pandemic, this past quarter brought five significant decisions across New York, New Jersey and Connecticut — addressing the parameters of employer obligations to medical marijuana users, the scope of New Jersey’s Pregnant Workers Fairness Act, business executives’ liability for harassing conduct by a supervisor, and New Jersey’s ban on arbitration of discrimination claims. Our Spring 2021 issue of Takeaways summarizes all those decisions, as well as recent employment law developments in New York and New Jersey resulting from the legalization of recreational marijuana usage, further updates on the ever-evolving maze of requirements related to COVID-19, expanded protections for discrimination related to employees’ hairstyles and head coverings, and a substantial increase in the minimum wage for federal contractors, taking effect in very short order.

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