Labor & Employment Insights — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

OSHA’s Emergency Temporary Standards for Mandatory COVID-19 Vaccinations; What Employers Need to Know

Published on: November 8, 2021 | by Kathleen M. Connelly

As part of President Biden’s plan for battling the COVID-19 pandemic, the Occupational Safety and Health Administration (OSHA) has issued the anxiously awaited emergency temporary standard (ETS) “to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination.” Consistent with the President’s plan, the ETS requires large employers to adopt policies mandating COVID-19 vaccination or alternatively, policies requiring employees to choose between vaccination or undergoing regular COVID-19 testing.

The ETS is expected to apply to two-thirds of private sector workers. While the ETS does not apply to state and local governments in states without OSHA-approved occupational safety and health programs (“State Plans”), jurisdictions with State Plans (such as New Jersey) must comply with the ETS. Although the ETS does not currently apply to small employers, OSHA cautions that it needs time to assess the capacity of small employers to meet the administrative burdens of the ETS and is seeking comment to help the agency make that determination.

We have distilled the 490-page ETS to provide an overview of the requirements that will be imposed upon large employers under the ETS.

THEY’RE HERE! OSHA Releases ETS Addressing Vaccination and Testing Mandates for Large Employers

Published on: November 4, 2021 | by Kathleen M. Connelly

On September 9, 2021, President Biden announced that large employers of 100 or more must mandate that their employees show proof of being fully vaccinated for COVID-19 or wear a mask and undergo weekly COVID-19 testing. These mandates were not slated to go into effect until the Occupational Safety and Health Administration (OSHA) developed an Emergency Temporary Standard (ETS) addressing the requirements employers must follow when implementing the vaccination and testing mandate.

On November 4, 2021, OSHA issued the highly anticipated ETS. The Lindabury team is currently wading through the 490-page ETS and will provide a more detailed analysis of the requirements in the near future. In the interim, here are only some of the ETS details employers have been anxiously waiting for:

The ETS is effective November 5, 2021, and will be in effect for 6 months

Emotional Distress Damages and the Rehabilitation Act

Published on: November 3, 2021 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Can an individual get damages for the emotional distress suffered as a result of violations under the Rehabilitation Act (29 U.S.C.A. §701 to 796 (1973))? What if that is the only harm suffered and they have no financial losses? Can an organization still be liable? In New Jersey, the answer to these questions is likely yes.

The Rehabilitation Act (the “RA”) provides that individuals with a disability cannot be “excluded from, denied the benefits of, or be subjected to discrimination under” programs that receive federal funding. Individuals who believe they were discriminated against may sue an organization under the RA, alleging a violation. There is a split among Circuit Courts, however, as to whether emotional distress damages are an available remedy under the Act. For example, the Fifth Circuit Court has found that emotional distress damages are not warranted. In Cummings v. Premier Rehab, a deaf and legally blind patient filed suit against a physical therapy provider that refused to provide her with an American Sign Language (ASL) interpreter. The plaintiff sought emotional distress damages only. The Fifth Circuit dismissed the plaintiff’s claims, and held that because emotional distress damages are not available under a “breach of contract” case, they are not available under the RA.

Conversely, the Eleventh Circuit Court in Sheely v. MRI Radiology Network, P.A., found that emotional distress damages were warranted where a deaf plaintiff and her service dog were prohibited from accompanying her minor son into his MRI. The Court explained that even where only emotional distress was suffered by the plaintiff, it was nonetheless sufficient to award damages, noting that it was “the only available remedy to make good the wrong done.” Importantly, the plaintiff did not need to show physical symptoms of her emotional distress in order to recover damages.

OUT WITH THE OLD… NO LONGER: New Jersey’s Law Against Discrimination Amended to Eliminate Exceptions for Certain Age-Based Employment Actions

Published on: October 7, 2021 | by Joshua L. Weiner

In response to an increasingly older workforce and higher ages in which employees are choosing to retire, on October 4, 2021, Governor Murphy signed a bill expanding the scope of the New Jersey Law Against Discrimination (“LAD”) by eliminating certain decades old provisions that permitted employers to make age-based decisions in certain circumstances. For private sector employers, this legislation amends the LAD to extend protections to older workers by: (1) eliminating a provision of the LAD that permitted employers to not hire or promote employees over 70 years of age; and (2) expanding the remedies available to an employee unlawfully forced to retire due to age to include all remedies available under the LAD.

These amendments are a significant alteration of the LAD, and now places age on equal terms with other recognized protected categories, including but not limited to race, gender, national origin, disability, religion, and sexual orientation. While the LAD has historically been touted as one of the most progressive anti-discrimination laws in the country, it nonetheless placed age on a separate footing with other protected categories, paradoxically putting it at odds with much less progressive State and federal anti-discrimination laws. Clearly, this new legislation seeks to remedy that contradiction.

These amendments will serve the laudatory goal of protecting older workers against workplace discrimination, and employers refusing to hire or promote otherwise qualified individuals simply because they are over age 70 may find themselves defending age discrimination claims. Thus, employers are advised to review and update employee handbooks and workplace policies to ensure compliance with the LAD amendments. Moreover, employers must be mindful of these amendments when making any personnel decisions affecting older employees to ensure they are made for legitimate business reasons unrelated to age.

Attention NY Employers: DOH COVID-19 Designation Triggers HERO Act Requirements

Published on: September 15, 2021 | by Kathleen M. Connelly

In June of 2021 the New York Legislature passed the HERO Act requiring employers to adopt an airborne infectious disease exposure presentation plan by no later than August 5, 2021. Employers were free to use the State’s model plan entitled Airborne Infectious Disease Exposure Prevention Standards and Model Plans for Various Industries, found at https://dol.ny.gov/ny-hero-act, or develop their own plans that were compliant with HERO Act’s requirements. However, employers were not obligated to implement the infectious disease plan until such time that the Commissioner of Health officially designated an outbreak as a “highly contagious infectious disease.”

On September 6, 2021, the Commissioner of Health formally designated COVID-19 as a highly infectious disease, thus triggering the obligations of New York employers to implement the protocols of their respective infectious disease prevention plans, including:

Review and update the plan to incorporate any updated requirements

President Biden’s Vaccination Mandate: What Employers Need to Know

Published on: September 15, 2021 | by Kathleen M. Connelly

The aim of President Biden’s “Path Out of the Pandemic,” announced on September 9, 2021, is to increase the number of vaccinated workers across the country. To that end, the plan includes several requirements that will affect more than 80 million private sector workers and most workers in the public sector.

Mandatory Vaccination or Weekly Testing for Large Employers of 100 or More. Under the President’s plan, large employers must ensure workers are fully vaccinated or provide a negative COVID-19 test at least once each week. In addition, large employers must provide workers with paid time off to get vaccinated or to recover from the effects of the vaccine. Upcoming regulations will likely address how the 100-employee threshold will be met, whether it will include part-time, temporary or remote workers.

When Must Employer Comply? It is unclear when these mandatory requirements will take effect. According to the White House, the Occupational Safety and Health Administration (OSHA) will develop an Emergency Temporary Standard (ETS) “in the upcoming weeks” implementing the vaccine mandate and ongoing testing requirements. While some suggest that this process will take 30 to 60 days, prior ETSs issued by OSHA earlier this year to combat the pandemic took five months. In addition, employers can expect legal challenges to the authority of the federal government to impose such mandates.

What Employers Need to Know About Vaccination Mandates and Incentive Programs

Published on: September 9, 2021 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Employers are faced with a variety of legal questions when determining whether to mandate COVID-19 vaccinations and other safety protocols in the workplace. These questions are further complicated by varying opinions on the safety of vaccines and whether such mandates impose upon the privacy rights of employees. This article outlines an employer’s legal rights in light of those concerns.

COVID-19 Vaccinations Mandates and Exceptions

The Equal Employment Opportunity Commission (“EEOC”) has stated that employers are free to mandate vaccinations in the workplace and to require proof of vaccination status. However, there are two exceptions to this mandate. First, the Americans with Disabilities Act (“ADA”) requires employers to provide “reasonable accommodations” for those objecting to the vaccine based on one’s medical condition. Accommodations may include, but are not limited to, continued mask wearing and social distancing, a private office or workplace, remote working, or even a leave of absence. Employees claiming they have a medical condition that prevents them from getting vaccinated should be required to submit documentation from a treating physician substantiating the need for an exemption.

Thinking About How to Maximize the Number of Vaccinated Employees in Your Office?

Published on: August 12, 2021 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

As the Delta variant of COVID-19 continues to spread, many businesses have begun to mandate that their employees get vaccinated as a condition of employment. While there are innumerable benefits to having a fully vaccinated workforce, not every employer may want to pursue such a heavy-handed approach. Alternatively, employers may consider offering non-vaccinated employees incentives to get vaccinated.

The Equal Employment Opportunity Commission (EEOC) has approved the use of incentives to encourage vaccinations in the workplace. However, it has noted that vaccination incentives cannot be so substantial as to be deemed coercive. Permissible incentives generally range from extra paid days off to free beer or lottery tickets. When determining what incentives to offer, it is critical that employers keep in mind that anything over a de minimus type of incentive may risk being deemed coercive. It is also important to note that employers cannot offer incentives to employees to have their family members vaccinated, as this would lead to the employer’s receipt of genetic information in the form of family history thereby running afoul of the Genetic Information Nondiscrimination Act (GINA Act).

We recommend consulting with legal counsel to determine which approach is best for your business.

Confusion in the Workplace Over Masks, Vaccine Mandates and Medical and Religious Exemptions to Vaccination

Published on: August 10, 2021 | by Kathleen M. Connelly

Since the onset of the pandemic in March 2020, employers have been grappling with an ever-changing landscape of federal and state mandates and recommendations. The situation is further complicated by varying opinions about how the pandemic should be handled as well as the efficacy or safety of the vaccines. Employers are facing an unprecedented clash between ensuring their workplaces are as safe as reasonably possible while imposing mandates upon employees who feel that mandates have gone too far and infringe upon employee privacy rights and personal freedoms. This article seeks to dispel some of the confusion about the current state of employer efforts to combat the pandemic while balancing employee privacy concerns.

To Mask or Not to Mask, that is the Question. With certain exception for high-risk areas such as healthcare settings and public transportation, all mandatory mask, social distancing and other safety measures imposed by Governor Murphy were lifted in early July 2021 for both vaccinated and unvaccinated individuals. The CDC also lifted its mask recommendation for outdoor and indoor public spaces for all persons who were unvaccinated.

However, by mid-July the CDC and the Governor reversed course in response to the uptick in cases of the Delta variant. The CDC recommended that all individuals in counties with “substantial or high” transmission rate should mask up in indoor places, regardless of their vaccination status. In late July Governor Murphy followed suit, “strongly recommending” that the CDC guidelines be followed in crowded indoor settings where the vaccination status of individuals is unknown or there is an immunocompromised person.

New Jersey Cracks Down Further on Employee Misclassification

Published on: July 19, 2021 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

In early 2020, Governor Murphy signed a series of bills aimed at identifying and penalizing businesses for misclassification of employees as independent contractors. On July 8, 2021, New Jersey enacted four additional laws to further its previous efforts to combat misclassification of workers.

A5890: Injunctions and Stop-Work Orders

This law, effective immediately, allows the Commissioner of the Department of Labor and Workforce Development (“DOL”) to seek a superior court injunction to prevent ongoing violations of State wage, benefit, and tax laws stemming from employee misclassification. Previously alleged violations were handled administratively before the Office of Administrative Law (“OAL”). Under this new law, the Commissioner can bypass the OAL and go straight to court. If the Commissioner prevails, all remedies are available to the victims of misclassification. Additionally, the Court shall award reasonable attorney’s fees and litigation and investigation costs. Determining whether to pursue an enforcement action is left to the “sole discretion” of the Commissioner.