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.

As I continue a deeper dive into new Connecticut employment laws, Public Act 21-27 adds three new parameters for the existing requirement that an employer provide a lactation room or other location in the workplace for a mother to express her milk.

Previously, Conn. Gen. Stat. § 31-40w only required that such room or location be private, in close proximity to the work area, and not a toilet stall.

Beginning October 1 and absent undue hardship, such room or location must also:

  • be free from intrusion and shielded from the public while an employee expresses breast milk;
  • include or be situated near a refrigerator or employee-provided portable cold storage device in which the employee can store her breast milk; and
  • include access to an electrical outlet.

Again, as noted above, an employer is not required to provide these new parameters if there is an undue hardship.

Typically, the undue hardship defense is a high bar to meet and depends on the difficulty and expense of providing such parameter in relation to factors such as the size of the employer’s business, its financial resources and the nature and structure of its operation.

Given that mini-fridges can be purchased for under $100, it would be exceedingly difficult for an employer to argue that the cost of such a refrigerator is an “undue hardship”.

Notably, under the new law, the undue hardship defense does not apply to any of the three original parameters.

So, at the very minimum, all employer-provided lactation rooms or locations will be private, in close proximity to the work area, and not a toilet stall.

Nearly all employers are covered by this Act so there are no major exceptions for even small employers, except as to the undue hardship analysis.

Employers that do not have a designated lactation room may find that a conference room with a lock or adding a lock to an office may be a good solution. Regardless, employers should review their existing practices to ensure compliance with this new law.

My thanks to my colleague Sheridan King who assisted on this update, a version of which first appeared on our sister blog, Employment Law Letter. 

As I’ve been going over this week, employers have a lot of new obligations under Connecticut law.

This next one is pretty arcane. (In fact it was on line 12415 of page 408 of the budget implementer bill).

Here’s the new rule:

Effective December 1, 2021 (and annually through December 1, 2024), any employer in Connecticut with 100 or more employees must notify any Connecticut residents about whether such employer offers to employees an “education assistance program” under federal law.

If it does, then the employer must also notify such employees of the benefits included in such program and the manner in which an employee may enroll in such program.

An education assistance program (under federal law) is “a separate written plan of an employer for the exclusive benefit of his employees to provide such employees with educational assistance”.

An employer who does not offer such a program or who fails to notify employees about such a program does not face any direct legal consequences according to this new law. (But there are separate reporting obligations under federal law.)

And regardless, it’s always a good idea to comply with the law.

My thanks to the CBIA for the tip on this one.

 

Yesterday I talked about a new law that will impact the hiring process. But there’s another new law that employers need to comply with starting October 1, 2021. This one, though, is simpler than some of the others. If you want to look at the law itself, it’s Public Act 21-69.

The law amends existing law by making it a discriminatory practice for an employer or an employer’s agent to request or require an applicant provide their:

  • age
  • date of birth
  • dates of attendance at or date of graduation from an educational institution.

This prohibition applies to an “initial employment application”, suggesting that an employer can ask for this information later on in the hiring process.

There are two other exceptions to be aware of:

  • Employers can ask for this information on an initial employment application if it is based on a bona fide occupational qualification or need.
  • Employers can also ask for this information when such information is needed to comply with state or federal law.

Employers should immediately revise any job application (including online job applications) to ensure that these questions are removed.

This law applies to all employers with three or more employees.

For more on this law and other new legislative developments, watch for upcoming details on my firm’s fall webinar series — Coming Next Month!

While mandatory vaccination policies are all the rage now, there’s an important new Connecticut law that is a “must-do” for employers here and not much time left to get into compliance.

Effective October 1, 2021, employers are prohibited from failing or refusing to provide a job applicant with the “wage range” of the position for which the applicant is applying.  Thus, employers must provide the wage range before or when offering the applicant the job, or when the applicant requests it during the application process — whichever is earlier.

My colleagues and I did a deeper dive into this new law in our sister blog, Employment Law Letter, here yesterday.

Regardless, HR professionals and executives need to be sure that wage ranges are disclosed at some point during the hiring process.

One solution may be to put such ranges in any job postings.  Another solution may be to at least build in the wage range range disclosure in any offer letter.

Regardless, this will also involve (particularly for smaller employers) figuring out what the wage ranges are for positions.

There are several other facets to this new law, including providing disclosures to current employees under some circumstances.  Talk with your legal counsel to ensure that your plan for anticipated compliance will meet the rigors of this new law.

Today I want to talk about a housing discrimination claim.  But wait! It has significant relevance to employment discrimination claims so bear with me for a second.

As an additional incentive, if you’ve been following the Marvel movies, this case will ALSO have elements of a multi-verse with multiple versions of the CHRO in play, so consider this case to be “Loki” for legal geeks. (If you don’t understand, your kids will.)

Ok, back to the law.

The story first starts in 2012 when the Connecticut Supreme Court upheld an award of $95,000 in noneconomic damages to an employee in an harassment claim, even though the employee did not offer any expert or medical testimony on the subject and provided very little to no evidence on it, according to the court’s opinion.

The case, Patino v. Birken Mfg, has often been cited for the proposition that noneconomic damages will not be overturned unless they are excessive or shocking.  The Court’s decision cited several other cases to compare the verdicts in those cases with that one.  These types of cases are also what is known as “garden variety” emotional distress damages.

Flash forward to 2015 and a case of housing discrimination filed at the CHRO.  The condominium never appeared in the case to defend itself, which resulted in a default judgment.  A hearing in damages was then held. At the hearing, the CHRO requested $75,000 in noneconomic damages on behalf of the individual. However, the referee awarded $15,000 in compensatory damages for emotional distress. Victory and case closed, right?

Nope. Then things get interesting. The CHRO appealed the decision of its own referee, contending the damages were insufficient.  The Superior Court remanded the case for further decision and on remand, the referee did not change the damages award.  The CHRO then appealed again to the Superior Court which affirmed the decision.

Which led to an appeal to the Connecticut Appellate with the CHRO representing the CHRO (Plaintiff) and the CHRO representing the CHRO (Defendant).

(Don’t try to think too much about it; your head will spin but you can read footnote 1 for an explanation where the court notes “The present case thus presents us with the unusual situation of both parties on appeal advocating for the same
interests; specifically, asking this court to reverse the decision of the Superior Court, vacate the referee’s award of damages and remand the case for a new calculation of damages.”)

For good measure, the State of Connecticut filed a brief as amicus curiae.   (That’s a lot of tax dollars hard at work, as they say.)

On appeal in CHRO v. Cantillon, both versions of the CHRO asked the court to reverse, claiming a misapplication of prior case law.  Both argued that Patino stands for the proposition that in “garden variety” emotional distress claims, “there is a presumptive monetary range of damages between $30,000 and $125,000.”

Continue Reading CHRO vs. CHRO: How Much is “Garden Variety” Emotional Distress Really Worth

One of the longest recurring features here has been a Q&A with various professionals that add some perspectives on what is going on in a specific area.

Today, I have the fortune of publishing a Q&A with Robert Harris, who serves as Senior Vice President and Deputy General Counsel for Radian Group. I’ve been lucky to know Robert through our collective work with the Connecticut Bar Foundation. I recently caught up with him again and he agreed to answer a few questions about his growing mediation practice.

My thanks to Robert for sharing his insights. 

You’ve mediated cases over a number of years. Are there certain characteristics of a successful mediation that translate to other cases?

Robert: Persistence. The more challenging commercial matters that I am involved with often are not resolved during the scheduled mediation session. Either there are too many issues, or the emotional and non-substantive issues are seemingly monumental, or both. The parties may believe they are at impasse, but I rarely agree with that. They need an opportunity to digest and process. For me, the goodbyes at the end of the day become the starting point for ongoing reach out to the parties and counsel, with the expectation that resolution may take some time to occur.

What mistake or two do parties or their attorneys make in mediation?

Robert: Not having definitive input from the ultimate decisionmaker. I have learned, both in my inhouse legal capacity and as a mediator, that those higher on the organization chart view business disputes without the emotional attachment that the participants who lived through the dispute bring to the mediation.

Having senior executive participation—either at the mediation itself, or at least during mediation prep—can ease the way to a more expeditious and dispassionate discussion of the substantive issues needed to resolve the matter.

How should parties think about picking a mediator?

Robert: I suggest counsel mentally fast forward to the mediation. If they anticipate the mediation will be effectively a negotiation, they will want a mediator with comfortable shoes, who after the introductory pleasantries, will travel from room to room carrying offers and counteroffers and exercising friendly persuasion to move the parties toward a satisfactory midpoint.

In more complex disputes, the parties should anticipate the need for the mediator to engage in substantive discussions with counsel and their clients about the business issues and interests at stake.

A mediator with subject matter experience, or at least someone who is well-versed in the commercial world, will have a better chance of connecting with the clients, and offering settlement concepts that are more nuanced than a single settlement number.

18 months.

Is that a long time? Short?

Everyone has marked this pandemic in their own time, but over the last few days, I realized that I hit the 18 month mark since I left work one morning not knowing when I would really be back.

For me, it’s been both a long and short time.

Yesterday, I came into my Hartford office (I have a Stamford one too) as I’ve tried to do once a week for these last few months.  Downtown Hartford remains mostly quiet.  The major employers have all stayed mostly remote and as a result, lunch hour still just feels…weird.  Not to mention rush hour which, yesterday, didn’t exist on my ride home.

That’s not to blame anyone or be critical of the decisions to remain remote or hybrid where possible. This Delta variant has done enough to scare businesses into putting their reopening plans on hold for the umpteenth time.

But this also led me to thinking: Do we even remember what normal was or what we expect normal to be anymore?

It was easy, at the start of this pandemic to think about coming back in a few weeks, or even months.

But we’re way way past that now. Many companies have new employees that know nothing of the “before” time, the office culture, the coffee machine quirks, or which elevator is the best to take.

Depending on your business, many of them may even like this new normal of working from home or in a hybrid fashion.  The lack of a commute, or having a pet nearby may be the most unexpected benefits of this pandemic.  (For me, I’ve kinda liked my new repainted office and making good coffee in the a.m.)

The longer this continues, the more it just feels like we’re all chasing something that — let’s be honest with ourselves now — happened a long time ago.

18 months is a long time.

And even going back to the office now is hard at times too.  People work on a sporadic basis and interactions are kept to a minimum, lest we spread the virus unwittingly to others.

All of this is to say that I’m more convinced than ever that the next year is still going to look far different than how we imagine it will be. Mandatory vaccination policies are an important part to get businesses to a more “normal” state.  But what then?

To be sure, some businesses have continued to operate as normal throughout, particular those in “essential” businesses. But for many offices, this “life on hold” approach has been anything but normal.

I’ve started to think more in terms of what workplaces will look like going forward — rather than keep looking back to life “before” the pandemic.   What does that workplace look like? What does it feel like? Will there be less socialization? Or, if the pandemic finally subsides, will there be more?

I’m grateful that my family has made it through this pandemic. Not unscathed or unscarred.  None of our lives have been perfect.  But we have survived.

I’m just hoping that being a “pandemic lawyer” as others have started to joke that I’ve become will be back to being a niche specialty and not a full-time job for another 18 months.

With the Delta variant continuing to surge throughout the country, employers have begun to seriously consider mandatory vaccination policies.  As I mentioned before, on September 9th, we presented a webinar on the topic.

But shortly after our webinar, the Biden Administration released a COVID-19 Action Plan which combines executive orders with forthcoming regulatory action.  The Plan will reach deep into the private sector, mandating vaccination (or, in some cases, weekly testing) for a wide variety of workers.

Much of the Plan is still being developed and will take effect in the coming weeks, but my colleagues and I did a full recap here.

Most notably, the Biden plan for employers with 100 or more employees will not require every employee to be vaccinated. Rather, those who remain unvaccinated must be tested on a weekly basis. To be sure, weekly testing (and tracking such tests) isn’t easy, but for employers who have been loath to mandate a vaccine for every employee, this will provide an escape hatch to a strict mandatory vaccination policy.

If the federal OSHA does issue the Emergency Temporary Standards as expected, it should go into effective immediately for the private sector. The state will then have 30 days or so to decide whether it will cover the public sector for 100 or more employees under Connecticut’s OSHA.

At the webinar, we discussed some of the practical considerations that employers will want to consider: How many employees are already vaccinated? Is there a risk of high attrition with a mandate? Are customers or clients requiring vaccination to work with them?

For employers, there are a few steps to take beyond surveying employees.  Employers should develop a written policy.  Employers should also develop religious and medical exemption request forms for employees to fill out if needed.  Employers should designate a recipient to review such forms and, in any event, should keep all vaccination records confidential.

For more suggestions and considerations, our free webinar “What Employers Need to Know: Mandating COVID-19 Vaccines in the Workplace” may be viewed at any time here.

Earlier today, my colleagues and I gave a webinar on mandatory vaccination policies. It’s almost like the President was listening.

This afternoon, President Biden announced that the Department of Labor, and specifically, OSHA will be issuing a new rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. According to the White House, OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

The rule is expected to go further. According to the White House,  “to continue efforts to ensure that no worker loses a dollar of pay because they get vaccinated, OSHA is developing a rule that will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination. This requirement will be implemented through the ETS.”

There will be more on this over the next few days. But there’s no need to wait. You can still view our webinar here. We answer a lot of your questions including how to deal with medical and religious exemption requests, how to collect information on vaccination and how to implement a policy.

We’ve been working on this for many months now. There’s no reason to do this alone.  Feel free to reach out to us (or any of your other trusted counselors) with any issues.