Thanksgiving evokes different emotions in people.

For some, it’s their favorite holiday. A time to get together with friends and family and celebrate all that life has to offer.

For others, it’s not as sweet. It can serve as a bitter reminder of all that has been lost in the past year, perhaps a job that ended or a beloved family member that has passed.

This year is no different in many ways.  We’ve been through a lot in the last year and we seem headed for yet another wave here in Connecticut with rising COVID numbers yet again.

For employers, I always have viewed Thanksgiving as a time for employers to take stock of the changes that are forthcoming in the law and race to finish those projects in the few weeks after the holiday.

Here are three items for employers to focus on:

  • Paid leave becomes effective on January 1, 2022. Remember, this will be a state benefit but that law doesn’t impact whether a leave is “protected” or not. For that, a separate change to Connecticut’s FMLA law will also be going into effect on January 1, 2022.  As a result, employers should be updating their FMLA policies now to comply with the new law.  My colleagues did a terrific webinar on the subject here that you can still review.
  • As I noted, the OSHA ETS vax-or-test rule is on hold with the Fifth Circuit’s stay. But I do not anticipate that will be the last word on the law now that the case has been transferred to the Sixth Circuit.  So stay tuned on developments there. For federal contractors, the vaccine mandate (with no test out option) is continuing.  Just dealing with those two rules is confusing enough. But over the last week, Florida passed comprehensive language that nearly prohibits employers from mandating the vaccine. The change is so dramatic that Disney announced that it was dropping its vaccine mandate.  Thus employers should continue to track these developments. There will be more in the next few weeks.
  • The state’s new wage range law continues to be in effect. If you haven’t updated your job posting or offer letters to comply with the new law, you may be opening your company up to significant liability concerns.  I covered this back in September but I’m hearing anecdotally that employers are still confused as to what is required.

As a “bonus”, employers should track the COVID-infection numbers over the next few weeks. Face coverings may need to be mandated for all staff, for example. In addition, it’s possible the CDC starts to redefine “fully vaccinated” to mean receipt of a booster shot after six months. Employers that have been mandating vaccination should start to consider the impact of booster shots on their policies.

As for me, I’m grateful for the last year, if a bit tired.  I’m very grateful to my colleagues and staff that I work with for their tireless efforts under challenging circumstances. I’m thankful for the clients that have called on us to help.   We’ve done it all together.

What’s next? Well, over the next few weeks, you may notice some subtle changes for the blog.  The blog will have an updated design that will better match the look of my firm’s sister blog, Employment Law Letter.  This blog is over 14 (!) years old and I’ve always found it important to keep it fresh and up to date. I will still be writing but will (hopefully) be resuming my pre-pandemic schedule of a post or two a week, instead of the 2-5 posts a week that were happening during the height of the pandemic. Stay tuned for the exciting details.

Have a very Happy Thanksgiving.

Last week, I deleted the Twitter app off my iPhone as a bit of an experiment.  I’ve done this a few times before — but the start of the pandemic back in early 2020 had me going full on Twitter since then.  After all, if it’s important, it’s on Twitter, right?

Well, not exactly.  In fact, when I was sick for a few days, I kept turning to Twitter and finding…not much that merited the visit to the app — just boredom.  (Never fear though, I can still access it on my computer browser.)  Nevertheless, I wondered how much I’d miss if I just took it of my phone.

The first real answer came on Friday when news came of the Fifth Circuit’s beatdown decision to stay enforcement of the OSHA vax or test Emergency Temporary Standard.  Turns out you can hear about it the same time as others even without being on Twitter.

But what happened next was interesting for me — nothing. Without being on Twitter, I missed the immediate reactions, overreactions, snark, and, sure, some actual insights.

And that’s ok.

We are entering a time during this pandemic when the changes are happening more incrementally and slowly.  Perhaps we are headed for a modest 5th wave here, for example.  That might require employers to adjust on the fly again.  But speed isn’t everything right now.

Thus, with the luxury of a few more days to ponder and think, where are we now on the OSHA rule? Continue Reading Court Stays OSHA ETS, But We Know All Too Well It’s Not the Last Word

Being sick over the last week brought me a lot of unexpected “gifts”.  Sure, there were the forced afternoon naps (oh, who’s kidding, even a morning nap too) .  The watching of “The Price is Right” at least once (or was it twice?). The early start of a post-pandemic diet.

But also the “gift” of not having to be first to write about the new OSHA Emergency Temporary Standard that employment lawyers had been breathlessly awaiting.

I’m not going to lie; I had wanted to be one of the first. But after several straight days of fighting a stomach bug (which, while grateful it wasn’t COVID, was hardly the “prize” I’d wish on anyone), I just had to resign myself to the fact that others were going to get out first ahead with the news.  The story would just have to wait until I could feel better.

This is one of those times when I feel like that forced delay was a gift because it allowed a bigger picture to emerge from the last few days.  Let me unwrap this.

First, as you know, on Thursday, OSHA released its new rule that pretty much did what had been telegraphed for weeks — impose a mandate or test requirement on employers with 100 or more employees.  My colleagues at Shipman & Goodwin wrote an excellent, easy-to-understand summary here.  (I’m so thankful to colleagues who had my back during my unexpected absence as I had volunteered to take the lead on this when it came out.) Go read it; I’ll wait.

Second, it turned out that the OSHA ETS was only part of the story and that a little patience was important to piece together the rest of the information. Importantly, there was news that the Centers for Medicare & Medicaid Services (“CMS”) issued a final rule on November 5, 2021, with the requirement that Medicare and Medicaid-certified suppliers, providers, and their staff become vaccinated for COVID-19.   (No testing for these workers permitted.) Once again, my colleagues did a recap of THAT rule here too. 

Third, also announced after the OSHA ETS was news that the federal contractor vaccine mandate — originally set for December 8th — was also getting pushed back to January 4, 2022. (Again, no testing opt-out permitted.)

And finally, over the weekend, came word that the Fifth Circuit Court of Appeals issued a fairly extraordinary stay of the OSHA ETS citing unspecified ” grave statutory and constitutional issues”.  It issued the parties to submit briefs over the next few days.  The stay order is only temporary but this won’t be the last time the validity of the OSHA ETS will be called into question.

That doesn’t mean that employers should ignore the OSHA ETS; preparations should continue. But it does mean employers should understand that the final “word” on this has yet to be written.

While having lots of my time on my hands to ponder my living room ceiling (never have I hated the “popcorn” style we have as this week), I also came around to seeing the bigger picture: Regardless of whether the OSHA ETS ever gets upheld, the Biden Administration is accomplishing it’s overall goal — more vaccinations. Companies have already begun to implement mandatory vaccination policies nationwide; those won’t be reversed. And obviously, once people are vaccinated, the country and many workplaces becomes safer with the virus having less of an opportunity to spread.  People obviously can’t be unvaccinated even if the rule is later modified.

The fact remains that mandatory vaccination policies for employers have been nearly universally upheld and fairly successful.  The OSHA ETS tries to get many more employers on board and gives them cover to do so.

Will this end to the pandemic? I don’t know. But anything that can speed up getting to the end in a safe faction is something that I know I’m a fan of.

Being sick is no fun for anyone — it’s disruptive to the workplace, families and workers. Let’s see where we are in a few months once the rules continue to evolve.

In the meantime, it’s time to get to work employers.  The clock is ticking on compliance.

 

 

Earlier today, my firm held a webinar featuring a conversation with Heidi Lane of the Connecticut Department of Labor to talk about the upcoming changes to the state FMLA law effective January 1, 2022. My thanks to Ms. Lane for participating and sharing her insights.

You can view the entire webinar here (and I’d encourage you to do so) but here are a few key takeaways to share:

  • A lot has been made regarding the state’s new paid leave law. Employers have been (or should have been) withholding a small percentage of employees’ salaries to contribute to this fund. The CT Paid Leave Authority will be administering this and this will provide your employees with compensation starting January 1, 2022 if they qualify for leave under the paid leave laws.  This law is income replacement, not job protection.
  • That paid leave law is entirely separate from the amendments that have been made to the Connecticut Family & Medical Leave Act. The CTFMLA law provides for protected unpaid leave. This law is managed by the Connecticut Department of Labor and was the subject of the webinar.  (Note further that the federal family and medical law may also apply to an employer.  An employee may be eligible for income replacement for a leave but not eligible for job protection. So as discussed below, employers need to understand the differences in the laws.
  • Formerly, CTFMLA provided certain employees with 16 weeks of leave over a two year period.  The new law (again, effective January 1, 2022) now provides up to 12 weeks every 12 month period and an employee may take up to 2 additional weeks of leave for a serious health condition resulting in incapacitation that occurs during a pregnancy. (This could include so called “morning sickness” during the pregnancy.)
  • Notably, according to the CTDOL, the employee has to be returned to the same position, or if not available, an equivalent position.  If there’s been a true reorganization while the employee is out, then an equivalent position may be appropriate but temporary assignments of an employee’s job duties must be reversed such that the employee should get his or her original position back.
  • The new law applies to all employers with one or more employees. But it still excludes, municipalities, local or regional boards of education, non-public elementary or secondary schools. BUT, the federal FMLA applies to all public agencies, regardless of the number of employees.  And employers with 50 or more employees must still follow federal FMLA.
  • In addition to broadening who is eligible, the triggers to the leave also change. The definition of the covered “family members” with serious health conditions that an employee is caring for has expanded greatly to include: sons or daughters of any age, grandparents, grandchildren, siblings (and siblings in law), and those who are “equivalent” to those family relationships.  (Your nice neighbor likely isn’t enough.) Federal FMLA does not include such a broad leave for “family members” — just spouse, sons, daughters or parent.
  • Employees will also be eligible for CTFMLA after having worked for three months for an employer with no hours worked minimum.  Again, this is a big change from the prior law and a big difference from federal FMLA.
  • Employees can also require employees to use available PTO but an employee can choose to keep up to 2 weeks of accrued PTO.

Ms. Lane indicated that revised regulations will be forthcoming and that it is their hope to be released in November (with a comment period).  These regulations will address what information, for example, an employee might need to show to get covered for care of an “equivalent” family member.

In addition, there is a transition period in which employees who are already on leave this year will get some leave in 2022.  The DOL has provided guidance (which is merely suggestions and not the force of a regulation or law) on this transition period here.

As a result of the changes to CTFMLA, there may be multiple laws in place that employers need to consider for any leave: federal FMLA, Connecticut Paid Leave, and CTFMLA to name a few.  While there is overlap at times, there are times when one law may apply but not others. For example, an employee may be eligible for income replacement during time off when an employee starts but not be eligible for job protection until after the first three months.

Suffice to say that consulting with employment counsel here is going to be critical.   While the CTDOL will have new forms available to help, implementing this law will be a true challenge.  Time to get to work.

 

Over the weekend, I was joking with a friend that we’ve seen more changes in employment law in the last 18 months than the last 18 years.

That’s an exaggeration of course. But it certainly does feel like there’s been a lot of changes. Sometimes it’s hard to catch up. So rather than a long post, I want to just highlight three items for employers to think about this week that all relate to vaccination news.

  • There’s still no OSHA Emergency Temporary Standard. Yet.  What is the ETS? It’s going to be a rule that requires employers with 100 or more employees to require mandatory COVID-19 vaccinations for their employees or have those employees test on a weekly basis. But we continue to await details on it; numerous press reports keep suggesting that it’ll be released any day. If I had to guess, I’d expect this to come out on a Friday around 4:30 p.m. because the ETS will become effective when released. This will at least give companies the weekend to consider it.  (Pity the employment lawyers working on this, at least a little.)
  • On Monday, the EEOC released updated guidance on how employers should consider religious exemptions requests to mandatory vaccination policies.  I’ll have an full update on our sister employment law blog in the next day, but the headline on this is that the guidance is frankly consistent with all the other prior guidance released by the EEOC previously.  Requests should be considered on an individualized basis and it remains a challenge for employers to question a “sincerely held” religious belief.
  • The deadline for federal contractors to have employees vaccinated is coming up quickly — December 8, 2021. Remember that these employees will not have a “test out” option though religious and medical exemptions may still be made on a case by case basis.  Why is the deadline coming up quickly? To state the obvious, it takes 5-6 weeks for full vaccination under the Pfizer or Moderna vaccination protocols.  That means employers should be getting employees to start now.  (J&J shot recipients have a few more weeks.)

Thus far, mandatory vaccination policies continue to be upheld by the courts. Whether new challenges the federal requirements will be successful remains unknown but employers shouldn’t wait.  The time to implement these policies (if applicable) is now.

Today, I’ll be presenting on the topic of working remotely (i.e. telework) along with my colleagues Rauchell Beckford-Anderson, Bradley Harper and Louis Schatz.

If you missed it, you’ll be able to view it on demand here.  

The topic of remote work has certainly taken off during this pandemic.

But a few stats stood out for me researching this:

  • 83 percent of employers recently surveyed noted that remote work was a success for their company
  • Over 50 percent of employees surveyed want to continue to work remotely three days a week after the pandemic ends.
  • And yet, most executives (68 percent) believe people should be in the office three days a week after the pandemic ends.

Clearly there is a shift going on for many offices. (For others, in manufacturing, education or essential services, the change is more subtle.)

Employers should be mindful that remote work may need to be provided as an accommodation to disability requests more but still employers can insist that in-office work is preferred.

We’ll talk about this and more during the webinar. I hope you can join us.

As I’ve hinted in some prior posts, my colleagues and I have been working on an all-new labor & employment webinar series for this fall. Today, I get to announce it.

This webinar series will feature in-depth legal insights and practical takeaways for human resource professionals as well as business stakeholders and decision makers on topics such as:

  • Continuation of remote work, flexible workplace accommodations, and special considerations for out-of-state employees
  • Family Medical Leave Act review and what to expect in 2022
  • Recreational marijuana
  • A review of the 2021 legislative updates, including wage rages, lactation accommodation, discrimination and more
  • Essential updates for your employee handbooks
  • What it takes to create effective diversity, equity, and inclusion programs and policies in the workplace

WHEN: October 14, 2021 — November 05, 2021
WHERE: Webinar
REGISTER HERE

And here’s the full program agenda. I hope you can join us for all or some of our programs. I’ll be speaking on remote work considerations.  Look forward to seeing you then.

Program Agenda

Earlier this week I came across a fun article about how old art pieces appeared to show evidence of time travel and I thought about the work we do as lawyers.

Let me explain.

Take a look at this piece of art from the mid 1800s.

Courtesy Wikipedia Commons

From a distance, it looks like a girl looking at an iPhone! There’s that tell tale glow.

But let’s blow it up even further.

It’s an iPhone, right? Well, as the author of the post that originally talked about this noted, it is actually a picture of a girl clutching her prayer book on the way to church.

No doubt people in the 1800s would’ve been able to spot this immediately but our brains have been conditioned to insert something we’ve seen in our world into this old picture.

The author of the blog post repeats this exercise with another piece of art, and then another.

How could our eyes deceive us? The author suggests this is pareidolia, which is otherwise known as seeing familiar objects or patterns in otherwise random or unrelated objects or patterns. (Think of patterns in clouds in the sky.)

I actually think about the concept quite a bit in employment law and litigation.  Sometimes, when I start investigating a complaint from an employee, it feels like the individual is attempting to see patterns in unrelated conduct.

An employee might think that a co-workers fantasy football team name is actually a secret insult against them. Or that a failure to invite them out for drinks after work is blatant discrimination.

And so on.

What all of this could be is apophenia, which is a more general term for the human tendency to seek patterns in random information.

(Caveat: Not all complaints fall within this pattern. There are obviously legitimate complaints filed every day.)

This theory has important implications in defending employment law cases.

I sometimes talk with a witness about how important it is to “connect the dots”, that is, connect pieces of information in a way that accurately portrays what happened.

In doing so, a jury or fact-finder can get an accurate picture.

But sometimes, individuals continue to believe what they think they saw.

Sometimes it’s warranted.

But other times, they’re just seeing pictures of iPhones in old art. It’s not reality but that doesn’t make their perceptions any less real.

Yesterday, I made a return appearance on This Week in Connecticut with Dennis House to discuss mandatory vaccination policies.  (My thanks to Dennis for the invite back.)

If you’ve been following the topic, there isn’t a lot new the last few weeks but here’s what employers should know right now about them:

    • Despite an announcement several weeks ago, OSHA has yet to release the draft or final versions of the Emergency Temporary Standard that will require employers to mandate the COVID vaccine to employees or require unvaccinated workers to be tested on a weekly basis.  In fact, if you believe certain press reports, there continues to be behind-the-scenes fighting as to the scope of this new rule.
    • At a state level, however, Governor Lamont has, through executive order, mandated the vaccine (or, in some cases, allowed for testing) for state workers, teachers and health care workers.
    • For private employers, courts continue to uphold mandatory vaccination policies that have been promulgated by those employers. Various challenges by employees have universally failed.  In fact, United Airlines has had great success in not only rolling out the policy, but getting employees to abide by the policy as well.
    • Employers that want to implement such a policy should ensure that it has exemption allowances for those with a disability or religious belief that is at odds with the vaccine. But employers have options in not only considering those requests, but considering what — if any — accommodations can be made to those employees as well.

Thankfully, it appears that the latest Delta wave has peaked across the nation. Connecticut remains at the lowest rate in the nation. (However, other parts of New England, including Maine and New Hampshire, continue to experience their highest case rates of this entire pandemic, despite fairly widespread vaccinations.) That does not mean that we’re entirely out of the woods yet. In fact, more vaccinations will help prevent another wave that — if you listen to certain experts — seems more inevitable than not.

For now, opposition to mandatory vaccination policies seems to be diminishing a bit. Employers are seeing the utility of such policies. If you’re considering one, be sure to talk with your counsel to ensure that such a policy and practice will withstand legal scrutiny.

If you want to learn more on the subject, I’ll be speaking on Tuesday with my colleague Sheridan King, at the Connecticut Bar Association’s CLE program on Vaccine Mandates. You can sign up through the link.

The Connecticut Department of Labor has issued non-binding “guidance” on the state’s new “wage range” law.  You can access it here.

The guidance is helpful in some ways but confusing in others. Importantly, employers should take the caveats noted in the guidance seriously; as it notes, this guidance “does not constitute legal advice”. Moreover, “if a complaint is filed in court, the court may have a different interpretation”.

Thus, employers should be sure to seek out actual legal advice as to how the law will apply to them.

But a few items of the guidance are worth pointing out. The guidance:

  • States that the law applies to employers “within the state”.
  • Suggests that it applies also to people outside this state who are “applying for work by remote means with an employer in the state”.
  • States that the law applies to any individual “who applies for a job” and it should be read “broadly”.
  • States that generally, discretionary pay (including certain bonuses) does not constitute wages and therefore doesn’t need to be included in any wage range disclosures.
  • States that the wage range disclosure is limited to the position that the applicant is applying; employers are not “required to provide the applicant with information concerning the amount of wages paid to any other employees.”

The guidance and, by extension, the law itself, still leaves some questions open. For example, the law doesn’t define exactly when an individual becomes an “applicant”.  Moreover, while the guidance suggests that some remote workers can be considered employees of a Connecticut company, there will clearly be other situations when they do not.  It remains to be tested by a Court whether an individual located in Nebraska who works for a Connecticut employer exclusively in Nebraska (with Nebraska taxes withheld etc.) is really covered by this Act.

The guidance is obviously a helpful step towards understanding the new law but it is far from definitive. Employers will still have to consult with legal counsel to ensure maximum compliance under the law.