On Friday, July 9, 2021, President Biden signed an Executive Order on “Promoting Competition in the American Economy” (the Order) aimed at limiting certain anti-competitive practices across multiple sectors, including agriculture, telecommunications, technology and pharmaceuticals. The Order highlights a multitude of anti-competitive practices in these sectors, including the increasing pervasiveness of non-competition and related agreements throughout the American economy. While the Order itself does not prohibit non-competition agreements — and is not expected to have any immediate effect on their enforceability — employers should view the Order as a possible precursor to further actions over the coming months and years.

Read More >> Executive Order has Little Immediate Impact on Employee Non-Competition and Related Restrictive Covenants

On the evening of July 6, 2021, the NYS Department of Labor (DOL) published the long awaited “Airborne Infectious Disease Exposure Prevention Standard” (Standard), a general “Model Airborne Infectious Disease Exposure Prevention Plan,” and several industry specific model prevention plans as well. These are now available on the DOL’s website. The model plans are currently available in English, but the website states that they will also be available in Spanish soon, as required by statute. 

Read More >> NY HERO Act – NYSDOL Publishes Airborne Infectious Disease Exposure Prevention Standards and Model Plans For Various Industries

In a decision of interest to New York State employers subject to federal safety regulations, the Second Circuit Court of Appeals recently answered that question in the negative. In Bey v. City of New York¹, the Court concluded that where a federal safety regulation expressly prohibits a requested medical accommodation, that regulation trumps the requirements imposed by the Americans with Disabilities Act (the ADA) and Title VII and shields the employer from liability under those statutes. 

Read More >> Must an Employer Offer a Reasonable Accommodation if a Federal Safety Regulation Prohibits Such Accommodation? 

“How is my hair? Does it look OK?” With employees returning to onsite work, questions regarding employers’ grooming and dress code policies are bound to crop up. When responding, employers should be cognizant of the fact that their dress code and grooming policies must comply with expanding legal protections against discrimination based on race-based hairstyles. 

Read More >> How is My Hair? A Brief Review Of Hairstyle Discrimination In The Workplace

On April 14. 2021, the U.S. Department of Labor (DOL) issued much needed guidance concerning best practices for plan sponsors, fiduciaries, record-keepers, participants and beneficiaries pertaining to cybersecurity for retirements plans. The DOL’s guidance focuses on three specific topics: hiring service providers; managing cybersecurity risks; and online security tips for participants to avoid risk of fraud and loss. Although the guidance was couched as “best practices,” it is reasonable to interpret it as creating minimum cybersecurity standards and practices for retirement plans. The guidance specifies the duty of plan fiduciaries to protect plan data against cybersecurity breaches and attacks, and potentially signifies a precursor for the DOL to assess liability for damages stemming from plan data breaches in the future. Although the guidance did not address health and welfare plans, those plans may also wish to consider implementing these measures. 

Read More >> DOL Issues New Cybersecurity Guidance for Plan Sponsors, Plan Fiduciaries, Record-Keepers and Plan Participants

As previously reported, the New York Health and Essential Rights Act (HERO Act) was signed into law by Gov. Andrew Cuomo on May 5, 2021. The governor announced that his approval was based on his having secured an “agreement” with the NYS Legislature to make certain “technical changes” to the bill. On May 26 the amendments passed in the NYS Senate, and on June 7, they passed in the NYS Assembly. On Friday, June 11, the bill was delivered to and signed by Governor Cuomo. 

Read More >> Technical Amendments to NY HERO Act Passed – What’s Next For Employers

At long last, the Occupational Safety and Health Administration (OSHA) has finally released a COVID-19 standard that it has stated was coming since January. Healthcare employers will be required to abide by the new emergency temporary standard (ETS) published by OSHA (the last time OSHA issued an emergency standard was in 1983 to address asbestos exposure). The emergency workplace safety rule was published on OSHA’s website on June 10, 2021 and is effective immediately upon publication in the Federal Register. Voluntary guidance for other industries will follow.

Read More >> OSHA Releases COVID-19 Workplace Safety Rule for Health Care Employers

Our previous information memo discussed several issues that employers should be aware of when considering whether to provide an incentive to employees to encourage them to receive the COVID-19 vaccine. On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued updated guidance to employers on workplace COVID-19 vaccination policies, including guidance on employer-offered COVID-19 vaccine incentives.

Read More >> EEOC Issues Updated Guidance Regarding COVID-19 Vaccination Incentives

On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued revised guidance regarding COVID-19. The updated guidance, consisting of 21 FAQs, includes information on mandatory vaccination policies, disability and religious accommodations, accommodations for vaccinated employees, and employer-provided vaccination incentives. 

Read More >> EEOC Issues Revised COVID-19 Guidance

At his press briefing on Thursday, May 27, Governor Andrew Cuomo announced that employers will be required to provide paid sick leave to any employee who experiences side effects from the COVID-19 vaccination. Today, the New York State Department of Labor (DOL) issued guidance concerning such leave. 

Read More >> New York Clarifies that Employees Can Utilize Existing Paid Sick Leave If They Experience Side Effects from the COVID-19 Vaccine

The New York legislature has introduced two pieces of legislation that will greatly impact how healthcare facilities in the state are staffed. The first bill, A108/S1168, pertains to hospitals, and the second bill, S.6346/A.7119, pertains to nursing homes. Both proposed laws have passed the Senate and Assembly and await the governor’s signature. 

Read More >> Two New Pieces of Legislation Will Require “Safe Staffing” Measures in New York Hospitals and Nursing Homes

On May 5, 2021, Governor Cuomo officially signed the New York Health and Essential Rights Act (HERO Act) into law. The HERO Act effectively imposes significant obligations on covered employers to provide and maintain a safe workplace in the face of the ongoing COVID-19 pandemic, and for future airborne infectious disease outbreaks. As previously reported, the HERO Act amended the New York Labor Law by adding two new sections: (1) Section 218-b, which governs development and adoption of an airborne infectious disease prevention policy; and (2) Section 27-D, that requires employers to permit the creation of workplace safety committees. Both sections only apply to private sector employers. However, Section 27-D specifically only applies to private employers with at least 10 employees. 

Read More >> Governor Cuomo Signs HERO Act Into Law