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

New EEOC Guidance Green Lights Mandatory Vaccination Programs by Employers

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

In our December 11, 2020 publication found here, we explored the ability of employers to mandate COVID-19 vaccinations in the workplace. In short, in the absence of federal or state laws to the contrary, employers are free to mandate vaccinations.

On December 16, 2020 the EEOC issued guidance that paved the way for employers to mandate vaccinations without fear of violating the Americans with Disabilities Act (the “ADA”), Title VII and other federal law. The provisions of the new guidance are outlined below.

Vaccinations are not “medical examinations” under the ADA.

Wage and Hour Law: Determining Who Gets Overtime

Published on: January 4, 2021 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Federal and State law require nonexempt employees to be paid time and one half their regular hourly wage for hours worked in excess of 40 hours in any given workweek. Overtime is calculated based on an employee’s regular hourly wage.[1] Assuming there is no contract or other obligation imposed by Federal or State law, there is no requirement that a nonexempt employee be paid premium overtime compensation for hours worked in excess of eight hours per day, nor for work on Saturdays, Sundays, or holidays, other than the requirement of overtime for over 40 hours per week.

Who Qualifies as a Nonexempt Employee Eligible for Overtime Pay?

Not all employees qualify for overtime pay. Generally, individuals employed in bona fide executive, administrative, or professional capacities are exempt from Federal and State overtime requirements under the so-called “white collar” exemptions. Qualification for exemption is not determined solely by an employee’s title, job description or the fact that the employee is paid on a salary as opposed to hourly basis. Rather, to qualify for this exemption, the employer must show that the employee satisfies both a “salary basis” test and a “duties” test. Because the burden is on the employer to demonstrate that the exemption applies, it is critical that employers conduct a thoughtful and careful analysis when classifying an employee as exempt.

The FFCRA Expires December 31, but Employers Can Still Claim Tax Credits for COVID-Related Paid Leave in 2021

Published on: December 29, 2020 | by Kathleen M. Connelly

In response to the pandemic, Congress passed the Families First Coronavirus Response Act (the “FFCRA”) that provided up to 10 days of emergency paid sick leave for COVID-related absences and up to 12 weeks emergency paid family leave to care for a child in the event of a COVID-related school or daycare closure. These benefits went into effect in April 2020 and will terminate on December 31, 2020.

Many speculated that Congress would extend the FFCRA benefits to provide continued relief to individuals and families still grappling with work-related absences caused by the ongoing pandemic. Cases have spiked in many areas and schools continue to provide remote learning. Although the Consolidated Appropriations Act (the “Act”) signed by President Trump earlier this week provides various pandemic relief programs, the Act did not extend the expiration date of the FFCRA.

The Consolidated Appropriations Act’s extension of FFCRA Tax Credits for Employers.

The Next Frontier: Mandatory Vaccinations for Employees?

Published on: December 11, 2020 | by Kathleen M. Connelly

As the pandemic enters its tenth month, employers have had to adjust to significant interruptions to the workplace and the new mandates under the Families First Coronavirus Response Act and other state law protection to individuals and families impacted by the virus. Now that several pharmaceutical companies are about to rollout COVID-19 vaccines, employers are facing a new dilemma – whether private employers can mandate employees get vaccinated and, if so, should they do so?

Although it is questionable whether the federal government has the authority to mandate vaccines, President Elect Joe Biden has stated that he does not intend to make vaccinations mandatory, preferring to implement programs to encourage voluntary vaccinations. Dr. Anthony Fauci has likewise expressed his objection to compulsory mandates. On the other hand, mandatory vaccinations can be imposed on the state level but to date states have not expressed a firm intention to go this route. As with influenza, the CDC recommends individuals get the COVID-19 vaccination when it becomes available, especially healthcare workers, but does not issue any mandates to the healthcare systems.

According to the Pew Research Center, four out of ten Americans indicate that they would likely not opt for vaccination due to concerns over the unprecedented speed of the vaccine’s development and its untested long term safety record.

New Jersey Legislators Poised to Pass Recreational Marijuana Bill That May Send the Safety-Sensitive Exception up in Smoke

Published on: December 10, 2020 | by Kathleen M. Connelly

On the heels of the victory of the recreational marijuana referendum at the polls, the New Jersey Senate and Assembly moved swiftly to introduce proposed legislation regulating the use, licensing and taxation of marijuana. As of this writing the Legislature was close to sealing a deal and a vote could come as early as December 18, 2020. Despite the fact that marijuana use in the workplace has significant consequences for employers, especially those with high populations of safety sensitive workers, the most recent version of the bill is long on employee protections and short on protections for employers.

Preserved Employer Rights. Similar to the earlier Jake Honig Compassionate Use Medical Cannabis Act affording workplace protections to medical marijuana users, the proposed legislation provides that nothing in the Act shall be deemed to:

Restrict or preempt an employer’s right or obligation (as required for federal contractors) to maintain a drug- and alcohol-free workplace;

CDC Recommends Universal Use of Face Masks and Shortens Travel Quarantine Recommendation

Published on: December 10, 2020 | by Kathleen M. Connelly

In the face of mounting COVID-19 infection rates throughout the country, on December 4, 2020 the CDC issued a recommendation for the universal use of facemasks in indoor spaces as well as outdoor spaces when 6 feet of social distancing cannot be maintained. In addition, the CDC recommends the wearing of facemasks within households when a member of the household has been infected or had a potential exposure to the virus. The CDC noted that the proper use of facemasks is critical to reducing the spread of the virus “particularly in light of estimates that approximately one half of new infections are transmitted by persons who have no symptoms.”

The CDC also urges that exposures to “nonessential indoor settings and crowded outdoor settings pose a preventable risk to all participants” and urges continued prevention strategies such as take away service, outdoor dining and gatherings, if social distancing can be maintained, and the continued promotion of teleworking and other flexible work arrangements.

The CDC observed that increased testing, diagnosis and isolation should be implemented to interrupt the “silent transmission” of the virus from asymptomatic and pre-symptomatic persons, as well as case investigation and contract tracing to identify, quarantine and test close contacts.

CDC Issues New Guidance on Quarantine of Individuals Exposed to Persons with COVID-19

Published on: December 4, 2020 | by Kathleen M. Connelly

Until now, the CDC recommended a 14-day quarantine for individuals who might have had “close contact” with a person who has or is suspected of having COVID-19.[1] This quarantine was longer than the 10-day recommendation for those who test positive, as the longer quarantine period is based on estimates of the upper boundaries of the viral incubation period. However, in its new guidance issued December 2, 2020, the CDC acknowledged three adverse consequences of the 14-day quarantine:

It can impose personal burdens that may affect physical and mental health as well as economic hardship that may reduce compliance.
It may pose additional burdens on public health systems and communities, especially when cases are rising and the need to impose quarantines are rapidly rising.

Final “Transparency Rule” Issued for Group Health Plans and Insurers

Published on: November 30, 2020 | by James K. Estabrook and Elizabeth Engert Manzo

On October 29, 2020, the Department of Health and Human Services (“HHS”), the Department of Labor (“DOL”), and Department of Treasury (“DOT”) collaborated to issue a final “transparency rule” aimed at providing greater information to consumers, thereby allowing them to explore different healthcare options and avoid surprise billing for services rendered. Additionally, the rule requires the public disclosure of negotiated rates for in-network providers and amounts allowed for out-of-network providers.

Disclosure of Provider Rates

Under the rule, non-grandfathered health plans and insurers must publish their negotiated rates and allowable out-of-network charges on a public website, which is to be updated monthly through three machine-readable files. The website must be publicly available, accessible without charge, and cannot require a user account, password, or other credentials, or submission of personally identifiable information to access the files. Specifically, the files will reflect negotiated rates for in-network services, historical payments to and billed charges from out-of-network providers, and in-network negotiated rates. The files must also show historical net prices for covered prescription drugs at the pharmacy level.

New Jersey Mandates Workplace Health and Safety Standards During COVID-19 Pandemic

Published on: October 30, 2020 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

On October 28, 2020, Governor Murphy signed Executive Order No. 192[1] providing mandatory health and safety protocols aimed at protecting New Jersey employees during the COVID-19 pandemic. The executive order, which takes effect immediately, mandates that as of 6:00 a.m. on Thursday, November 5, 2020, all employers shall be required to adhere to the protocols set forth below. Any employer found to have violated the order may be subject to closure.

Social Distancing

Employees must maintain at least six feet of distance from one another wherever possible, including but not limited to during worksite meetings, orientations and similar activities that would traditionally require individuals to be present in a single room and in close proximity, in common areas such as restrooms and breakrooms, and when individuals are entering and exiting the workplace. Where the nature of an employee’s work or the work area does not allow for six feet of distance to be maintained, employers must require their employees to wear a mask and install physical barriers between workstations wherever possible.

The Hiring Process: Best Practices and Common Pitfalls

Published on: October 29, 2020 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Employee Recruitment

Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. Employers must be mindful of recruiting and hiring with Equal Employment Opportunity principles in mind and must implement practices that ensure recruitment and hiring decisions are not based on an employee’s protected status. Applications should be screened consistently – the same standards should be applied to everyone applying for the same position. Employers should also be mindful of the possible need to accommodate applicants who need assistance because of their medical condition or religious beliefs. For example, you may need to help a person with carpal tunnel syndrome fill out an application, or you may need to reschedule an interview originally scheduled for a religious holiday if the applicant’s religious beliefs prevent her from working on that day.

The Fair Credit Reporting Act and Background Checks