August 2021 Screening Compliance Update

August 2021 Screening Compliance Update

Federal Developments

Biden Announces Vaccine Requirements For Federal Employees, Contractors
On July 29, 2021, President Joseph R. Biden announced new requirements for federal employees and onsite federal contractors regarding vaccination status, masking, and social distancing. While a formal executive order has not yet been published, the White House issued a fact sheet which provides in relevant part (emphasis added):

Strengthening Safety Protocols for Federal Employees and Federal Contractors. Today, the President will announce that to help protect workers and their communities, every federal government employee and onsite contractor will be asked to attest to their vaccination status. Anyone who does not attest to being fully vaccinated will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a weekly or twice weekly screening testing requirement, and be subject to restrictions on official travel.

The federal government employs more than 4 million Americans, including over 2 million in the federal civilian workforce, throughout our country and across the world.

These rules should not only apply to federal workers and onsite contractors. President Biden is directing his team to take steps to apply similar standards to all federal contractors. The Administration will encourage employers across the private sector to follow this strong model.

It is not yet clear what the scope of an executive order will entail for federal contractors. While it appears that onsite contractors will be required to either be fully vaccinated for COVID-19 or continue to wear masks and engage in social distancing, it is not yet clear whether the order will attempt to require employers with federal contracts to engage in these protocols in their own workspaces (for example, at the headquarters of a company that has federal contractors in place on other federal worksites).

Separately, the administration issued updated model safety principles for federal agencies. These largely track the White House’s announcement with respect to federal employees and onsite contractors, but do not shed light on what, if any, requirements may be put in place for federal contractors who are not working onsite (emphasis added):

Fully vaccinated Federal employees and onsite contractors do not need to physically distance or participate in weekly screening testing and are not subject to any Government-wide restrictions on official travel (although agency travel policies still apply). In areas of high or substantial transmission, they need to wear a mask in public indoor settings in Federal buildings. In areas of low or moderate transmission, they do not need to wear a mask.

Those Federal employees and onsite contractors who are not fully vaccinated or decline to provide their vaccination status must wear a mask, physically distance, and comply with a weekly or twice-weekly screening testing requirement and are subject to Government-wide restrictions on official travel.

A plateauing vaccination rate, increasing infection and transmission numbers, and the severity of the COVID-19 Delta variant continue to drive federal policy in this area, and guidance is changing on an almost daily basis. Littler’s Workplace Policy Institute will keep readers apprised of developments in this rapidly evolving area of the law.
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OSHA Gives Health Care Employers Green Light To Continue Permitting Facemask Exemptions, Despite New CDC Guidance
In light of rising cases of COVID-19, the CDC has recently reversed its prior facemask guidance, and has now required that both vaccinated and unvaccinated individuals wear masks indoors in areas where there is significant transmission of COVID-19. Certain local jurisdictions have adopted similar rules that renew requirements for facemasks. In a significant move, OSHA has announced on its website that it has reviewed the latest guidance, science and data on COVID-19, and is not otherwise amending its COVID-19 Emergency Temporary Standard for Healthcare at this time.

OSHA’s June 2021 COVID-19 Emergency Temporary Standard for Healthcare employers provides a clear exception to general mask rules for (1) vaccinated employees (2) in well-defined areas, (3) where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present. Accordingly, compliant with the ETS, health care employers are lawfully permitting employees to unmask in office settings where all employees are vaccinated and no COVID+ patients will be present. While the ETS was published at a time when COVID-19 seemed to be receding, data from recent weeks shows that cases are rising in certain parts of the country. The CDC has issued a new facemask recommendation, which advises that individuals wear masks whenever indoors if they are in a county with substantial or high COVID-19 transmission. Accordingly, a healthcare employer who complies with the ETS and allows vaccinated employee to unmask, in a county with substantial or high COVID-19 transmission, would run afoul of the CDC’s updated guidance.

Healthcare employers were unclear whether continued adherence to the ETS, and its facemask exceptions, would be permissible given the new CDC Guidance and OSHA’s General Duty Clause, which requires employers to keep a workplace free from any recognized hazard. In terms of the impact the new CDC guidance has on ETS compliance, OSHA has published the following disclaimer on its website:

OSHA has reviewed the latest guidance, science and data on COVID-19 and has consulted with the Centers for Disease Control and Prevention (through the National Institute for Occupational Safety and Health). DOL has determined that neither CDC’s guidance on healthcare settings nor the underlying science and data on COVID-19 in healthcare settings has materially changed in a way to necessitate changes in the health and safety requirements contained in the ETS released on June 10, 2021. OSHA has determined that no changes to the ETS are necessary at this time, but the agency will continue to monitor and assess the need for changes each month.

Accordingly, OSHA has made it clear that permitting mask exceptions for vaccinated employees will still be permissible for employers, despite the new CDC guidance. It seems that OSHA understands that the data from the pandemic is constantly in flux and will take its time in revisiting the ETS or any requirements for employers, rather than react in a knee-jerk fashion. For employers this is an encouraging sign and indicates that OSHA’s enforcement priorities are not subject to sudden reversals as may have been the case with the CDC’s guidance.
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OSHA Issues New Guidance To Prevent COVID-19 Exposure In The Workplace
The U.S. Department of Labor’s Occupational Safety Health Administration (OSHA) issued new guidance on Aug. 13, 2021, which provides recommendations for employers to prevent COVID-19 exposure in the workplace. The latest guidance is specifically aimed at protecting unvaccinated workers, high risk workers, and those who are located in “areas of substantial or high community transmission.”

Consistent with prior Centers for Disease Control (CDC) guidance, the OSHA guidance urges employers to institute policies that encourage employees to get vaccinated as the most effective method to protect against COVID-19. OSHA recommends that employers implement policies that provide paid time off to obtain the vaccine and/or to recover from possible side effects after the vaccine. Employers should encourage unvaccinated employees to undergo regular COVID-19 testing, wear a mask and practice social distancing.

In light of the Delta variant and the continued risk of COVID-19 infection even after vaccination, the OSHA guidance further recommends employers institute the following protocols:

  • Instruct workers to stay home from work if they have had close contact with someone who tested positive for COVID-19 and/or are suffering from symptoms related to COVID-19. Employers should review their sick time policies to encourage workers to not report to a work site when sick or after exposure to COVID-19;
  • Require physical distancing in all shared or common work areas for unvaccinated and at-risk workers. Physical barriers may be used when social distancing is not possible. Consider implementing flexible work models, such as staggered schedules or rotating shifts, to minimize exposure;
  • Provide workers with face coverings at no charge and encourage employees—who are at high risk, have a family member at high risk, are not fully vaccinated or work in an area of substantial or high transmission—to wear face masks when in public indoor settings. Employers should follow federal anti-discrimination laws that may require reasonable accommodations for workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability or religious belief;
  • Provide accessible education and training on COVID-19 policies and procedures. Trainings should include information explaining how COVID-19 spreads, the importance of protecting oneself, and who to contact about questions or concerns;
  • Suggest or require that unvaccinated customers, visitors, or guests wear face coverings when engaging in face-to-face interactions between customers and workers (e.g., retail establishments);
  • Utilize and maintain a ventilation system that functions properly;
  • Perform routine cleaning and disinfection;
  • Record and report COVID-19 infections and deaths as required by OSHA regulations;
  • Implement protections against possible retaliation claims by providing an anonymous process for workers to voice concerns about COVID-19-related hazards; and
  • Continue to follow other applicable mandatory OSHA standards to protect workers from infection.

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Department Of Veterans Affairs Releases Contractor Vaccination Guidelines
At the end of July 2021, the Biden administration announced that, in addition to federal government employees, onsite federal contractor employees will be required to attest to their COVID-19 vaccination status. Visitors to federal buildings or federally controlled indoor workspaces and other individuals interacting with the federal workforce also will be required to submit a signed Certification of Vaccination form.

Any onsite contractor employee or visitor who declines to respond or responds that they are not fully vaccinated must (i) wear a mask regardless of the level of community transmission; (ii) physically distance; and (iii) provide proof of having received a negative COVID-19 test from within the previous three days if not enrolled in the applicable agency’s testing program. Federal agencies are required to establish a weekly or twice-weekly testing program for individuals not fully vaccinated. In addition, all onsite contractor employees and visitors, even those fully vaccinated, will be required to wear a mask in areas of high or substantial transmission.

On August 13, 2021, the Department of Veterans Affairs (“VA”) updated its mandatory COVID-19 vaccination policy via Veterans Health Administration (“VHA”) Directive 1193, Coronavirus Disease 2019 Vaccination Program for Veterans Health Administration Health Care Personnel. Effective October 8, 2021, the Directive applies to all VA medical facilities and requires all VHA Healthcare Personnel (“HCP”) to receive a COVID-19 vaccination or obtain an exemption for medical or religious reasons.

The Directive defines HCP to include:

  • “persons who work in or travel to VHA locations who have the potential for direct or indirect exposure to patients or infectious materials;”
  • contractor personnel and persons “not directly involved in patient care but potentially exposed to infectious agents [e., COVID-19] that can be transmitted from HCP and patients;” and
  • “contractor personnel providing home-based care to Veterans and drivers and other personnel whose duties put them in contact with patients outside VA medical facilities.”

Noncompliance with the Directive could result in disciplinary action including removal from Federal service. Presumably, for contractor employees and visitors, noncompliance, at a minimum, will preclude entry into or removal from a VHA facility. If the noncompliance by contractor personnel prohibits the contractor’s performance of contractual obligations, it may result in a contract breach or early termination.

In total, the Directive is 22 pages in length. There will be questions regarding compliance. Contractors and visitors should try to anticipate potential issues and seek guidance from their contracting officer or the VA office they intend to visit (assuming such a visit is permitted) prior to any visit. Currently, the vaccination mandate applies to contractor employees working onsite at federal facilities, however, the administration is seeking “to apply similar standards to all federal contractors.”
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State Developments

NYC Commission On Human Rights Issues Updated Enforcement Guidance On Consideration Of Criminal History In Hiring And Employment
The New York City Commission on Human Rights (the “Commission”) has issued updated legal enforcement guidance on the NYC Fair Chance Act (“FCA”) and employers’ consideration of criminal history in hiring and during employment.

The updated guidance, which does not have the force of law but which provides significant insight into the Commission’s interpretation of these topics, is being issued in connection with the July 29, 2021 effective date of Local Law 4, which adds significant new protections to the NYC Human Rights Law (“NYCHRL”) regarding applicant and employee criminal history, including a notable new requirement that employers take certain steps before denying or terminating employment based on currently pending arrests or criminal accusations.

Local Law 4’s Amendments to the NYCHRL

Codification of Article 23-A Factors in Considering Prior Criminal Convictions
Local Law 4 amends the NYCHRL to codify the existing requirement under New York State Correction Law Article 23-A that an employer considering rescinding an offer of employment or taking adverse action against an existing employee based on a prior criminal conviction first evaluate specific factors enumerated under Article 23-A. These factors include the duties/responsibilities of the role in question, the nature of the offense leading to the conviction, and the time that has elapsed since the underlying offense. Employers must analyze these factors to determine whether: (i) there is a direct relationship between the criminal conviction and the employment held by (or to be held by) the person; or (ii) the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

Consideration of Currently Pending Arrests or Criminal Accusations
Perhaps most significantly, Local Law 4 now requires employers to also evaluate specific factors before taking adverse action against applicants or employees based on a currently pending arrest or criminal accusation. Up until this amendment, the law did not require employers to take any factors into consideration before acting based on a currently pending arrest or criminal accusation.

These factors, which are very similar (but not identical) to the Article 23-A factors noted above, include:

  1. the policy of NYC to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the areas of licensure and employment;
  2. the specific duties and responsibilities necessarily related to the employment held by (or to be held by) the person;
  3. the bearing, if any, of the criminal offense or offenses for which the applicant or employee was convicted, or that are alleged in the case of pending arrests or criminal accusations, on the applicant or employee’s fitness or ability to perform one or more such duties or responsibilities;
  4. whether the person was 25 years of age or younger at the time of occurrence of the criminal offense or offenses for which the person was convicted, or that are alleged in the case of pending arrests or criminal accusations, which fact shall serve as a mitigating factor;
  5. the seriousness of such offense or offenses;
  6. the legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public; and
  7. any additional information produced by the applicant or employee, or produced on their behalf, in regard to their rehabilitation or good conduct, including history of positive performance and conduct on the job or in the community, or any other evidence of good conduct.

Similar to the requirement for prior criminal convictions, employers are now required to evaluate the above factors to decide whether adverse action may be taken based on a pending arrest or criminal accusation either because there is a direct relationship between the alleged wrongdoing and the job or employment would involve an unreasonable risk to property or people’s safety.

In addition, before taking any adverse employment action based on a pending arrest or criminal accusation, an employer is now required to:

  • request information from the applicant or employee regarding the enumerated factors;
  • consider the impact of each of the factors on the “direct relationship” and “unreasonable risk” analyses;
  • provide the applicant/employee with a written copy of such analysis, as well as any supporting documents and the employer’s reasons for taking the adverse action; and
  • allow the applicant/employee a reasonable time to respond before taking adverse action.

This is the same process that is presently required under the FCA before an employer may take adverse action based on a prior criminal conviction (referred to by the Commission as the “Fair Chance Process”).

Codified Definition of “Conditional Offer of Employment”
Under the FCA employers are prohibited from making inquiries into or considering an applicant’s criminal history until a conditional offer of employment has been made. In its original form, the statute did not include a definition of what constitutes such a conditional offer, though the Commission set forth a definition in its legal enforcement guidance on the law.

Local Law 4 now codifies the definition of “conditional offer of employment” as “an offer of employment, promotion or transfer which may only be revoked based on one of the following:

  1. The results of a criminal background check, conducted in accordance with the provisions of this chapter;
  2. The results of a medical exam as permitted by the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §12112; or
  3. Other information the employer could not have reasonably known before making the conditional offer if the employer can show as an affirmative defense that, based on the information, it would not have made the offer regardless of the results of the criminal background check.”

Expanded Definition of “Non-convictions”
Prior to this amendment, the NYCHRL provided that employers may never consider certain aspects of an applicant’s or employee’s criminal history in making employment decisions, including criminal actions adjourned in contemplation of dismissal and criminal actions not currently pending that were: terminated in favor of the individual or adjudicated as a youthful offender, whether or not sealed; or involving a sealed conviction for a non-criminal violation or any other conviction that was sealed under applicable law. Such excluded matters are referred to as “non-convictions.”

Local Law 4 expands the definition of “non-convictions” to add the following types of matters, whether or not sealed:

  • convictions of a violation as defined in Penal Law Section 10.00; and
  • convictions of a non-criminal offense.

Increased Time to Respond to a Notice of Adverse Action
Local Law 4 increases the amount of time that employers must give applicants and employees to respond to the information contained in the employer’s analysis of the Fair Chance factors and to submit any mitigating information from a minimum of three business days to “a reasonable period of at least five business days.”

Revised Legal Enforcement Guidance

Below are some key highlights from the revised legal enforcement guidance, which addresses each of these amendments to the NYCHRL and provides other clarification and additional information on certain issues relating to consideration of criminal history in employment.

Definitions Under the FCA
Along with incorporating updated definitions of terms such as “criminal history” and “conditional offer of employment,” the revised guidance:

  • states that the definition of “criminal background check” includes not only asking an applicant/employee directly about criminal history or obtaining a report from a consumer reporting agency, but also searching for publicly available or government records via the internet or other private databases;
  • defines a “pending case” as “[a] criminal action that has not been concluded at the time of the employer’s Fair Chance Analysis” but which does not include an action adjourned in contemplation of dismissal “unless, prior to the time of the employer’s assessment, the order to adjourn in contemplation of dismissal if revoked and the case is restored to the calendar for further prosecution;” and
  • further expands upon the definition of “non-conviction” to include a “non-exhaustive list of the types of criminal histories that qualify as non-convictions,” including cases in which the prosecutor declines to prosecute following arrest; resolved cases for violations such as trespass, disorderly conduct/behavior, failing to respond to an appearance ticket, loitering (including for the purposes of engaging in a prostitution offense), and second degree harassment; and convictions for non-criminal offenses under any other state’s laws.

When a Conditional Offer Has Occurred and the Background Check Process
As discussed above, Local Law 4 incorporates a specific definition of “conditional offer of employment” into the NYCHRL. The revised guidance states that “[u]nless an exemption applies, criminal history may not be sought or considered by employers before a conditional offer of employment” and employers are prohibited from “asking about or considering information about an applicant’s conviction history or pending cases until after the employer has assessed all other job qualifications and made a conditional offer of employment to the applicant.” (Emphasis added).

The revised guidance goes on to state:

“Employers who request background checks on applicants should first receive the non-criminal information, evaluate it, and then receive and evaluate the criminal information…Though most background check companies can produce separate reports for criminal and non-criminal information, employers whose background check vendor can only produce one report with both criminal and non-criminal information, or who otherwise face a substantial impediment to conducting two separate background checks, must establish a system to internally segregate criminal history information to ensure that it is available to decisionmakers only after a conditional offer has been made.”

In addition:

“Employers who take this route bear the burden of proving that the criminal information was inaccessible to decisionmakers until after a conditional offer. Employers should omit mention of a criminal background check when seeking an applicant’s authorization for an employment related background check prior to a conditional offer. Employers are encouraged to use terms such as ‘consumer report’ or ‘investigative consumer report’ rather than ‘background check’ in an authorization notice used prior to a conditional offer.”

It is worth noting, however, that the revised guidance states that “[b]ecause it is often impracticable to separate criminal and non-criminal information contained in a driving abstract, employers must not review driving abstracts until after a conditional offer has been extended.”

As an additional note, employers are reminded that the requirements of the federal Fair Credit Reporting Act (FCRA) continue to apply to authorizations being obtained from candidates or employees in connection with background checks and investigative reports being conducted by consumer reporting agencies.

Intentional Misrepresentations by Applicants or Employees
The revised guidance makes clear that the NYCHRL “does not prohibit an employer from disqualifying an applicant based on the applicant’s intentional misrepresentation about their conviction history or pending cases” and that adverse action taken on the basis of such misrepresentation does not require the employer to first undertake an FCA analysis. That being said, before taking such adverse action, the employer must provide the applicant or employee with a copy of any information that led the employer to believe the individual engaged in such intentional misrepresentation, and the individual must be afforded at least five business days to respond before any adverse action may be taken.

Evaluating Convictions or Current Arrests/Accusations for Current Employees
The revised guidance notes that, as set forth in Local Law 4, an employer is permitted to place an employee on temporary leave while it undertakes the required FCA process in connection with either a criminal conviction or pending arrest or criminal accusation. To that end, the guidance states that while the determination of whether the Fair Chance Process was completed in a reasonable amount of time is a “fact-specific inquiry,” there will be a presumption that delays in excess of five business days from the time the individual is placed on leave to the time of providing notice of the FCA analysis are unreasonable. The guidance also states that “[i]f the employee has accrued leave time, they should be permitted to use that time consistent with the employer’s regular leave policies.”

Exceptions to the FCA
The guidance notes that while certain federal, state and local laws may create mandatory bars to employment based on criminal history and would thus create exceptions to the requirements of the FCA, such a barrier must be truly mandatory in order to qualify for an exception, and “[t]he NYCHRL’s protections based on criminal history control when an employment-related action…is discretionary, meaning it is not explicitly mandated by law.”

The guidance also states that where a federal, state or local law requires an employer to perform a criminal background check (but does not necessarily wholly bar an individual with a criminal history from employment), an employer “may…advise applicants once they apply for a position that a background check is required and will be conducted prior to a conditional offer of employment” and may conduct such check prior to a conditional offer being made. However, such employers must also “notify the applicant of the specific legal basis for the required criminal background check” and still follow the Fair Chance Process before taking any adverse action based on criminal history information.

For employers in the financial services industry who are required by a self-regulatory agency to conduct criminal background checks of regulated persons, the revised guidance now states that such employers “are exempt from the Fair Chance Process to the extent that it conflicts with industry-specific rules and regulations promulgated by a self-regulatory organization (‘SRO’).” (Emphasis added). Previously, the guidance stated that such employers are exempt from the FCA “when complying” with industry-specific rules and regulations.
https://www.jdsupra.com/legalnews/nyc-commission-on-human-rights-issues-3799076/

Amendments To The NYC Fair Chance Act And New Legal Enforcement Guidance Require City Employers To Substantially Change Their Background Check Protocols
Recent Amendments to the New York City Fair Chance Act (FCA) that took effect on July 29, 2021, significantly expand the scope of the FCA by imposing new restrictions on an employer’s ability to take adverse action against job applicants, current employees and independent contractors based on pending criminal charges, arrests or convictions. In addition, the New York City Commission on Human Rights (the Commission)—the agency responsible for enforcement of the FCA—issued Legal Enforcement Guidance as well as Frequently Asked Questions About New York City’s Employment Protections Based on Criminal History, which require most New York City employers to bifurcate their background screening process to consider virtually all noncriminal information (for example, reference checks and confirmation of educational and employment history) prior to the grant of a conditional offer of employment and to conduct investigations of criminal backgrounds only after a conditional offer of employment has been extended.

Pre-Amendment Requirements of the FCA
The FCA took effect on Oct. 27, 2015, and amended the New York City Human Rights Law (NYCHRL) to prohibit employers from making inquiries or statements (including any written or oral questions or statements and searches of publicly available records or consumer reports made for the purpose of obtaining criminal history) related to the pending arrest or conviction record of an applicant at any time prior to extending a conditional offer of employment (referenced commonly as a “ban the box” law). Before taking any adverse action against the applicant on the basis of criminal history, the law also requires employers to undertake the “Fair Chance Process” as follows:

  • Provide a written copy of the criminal history inquiry to the applicant.
  • Determine whether to deny employment, which is permitted only if (i) there is a direct relationship between the criminal offense and the employment sought; or (ii) the contemplated employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. In making this determination, the employer must perform an individualized assessment of each of the eight factors set forth under Article 23-A of the New York State Corrections Law. The Commission has prepared a form, which has been updated recently, that employers may use to comply with this requirement. The employer must provide the Article 23-A analysis to the applicant in writing, along with “supporting documents” that formed the basis of and reasons for the adverse action.
  • After providing the applicant with all the required documentation, allow the individual time (under the pre-amendment law, at least three business days) to respond and, during that time, hold the position open for the applicant.

The law does not apply to any actions taken by an employer pursuant to any federal, state or local law requiring criminal background checks for employment purposes or barring employment based on criminal history. In addition, employers in the financial services industry are exempt from the Fair Chance Process only “to the extent that it conflicts with industry-specific rules and regulations promulgated by a self-regulatory organization (SRO)” such as the Financial Industry Regulatory Authority (FINRA). This exemption only applies to positions regulated by SROs—employment decisions regarding other positions must still comply with the Fair Chance Process. Thus, if an applicant or employee is “statutorily disqualified” from being associated with the financial services firm due to certain criminal conduct, the employer need not undertake the Fair Chance Process. However, if the applicant or employee has criminal history about which the employer has concerns but that is not subject to the legally mandatory bar, the employer must conduct the Fair Chance Process.

New Amendments to the FCA
The new amendments to the FCA significantly expand the scope of its protections for both applicants and existing personnel. The key new provisions include:

  • Extension to Pending Arrests and Criminal Accusations: Prior to the amendments, the FCA prohibited employers from making pre-offer inquiries regarding pending arrests but did not require employers to undertake the Fair Chance Process when seeking to rescind a conditional offer based on a pending arrest. The new law now requires employers to engage in the Fair Chance Process before taking adverse action based on pending arrests.
  • Extension to Existing Employees: Prior to the amendments, employers were not required to apply the Fair Chance Process when considering the criminal history of an existing employee. Under the new law, employers must engage in the Fair Chance Process when seeking to take an adverse action against individuals currently working for the employer based on pending arrests, pending criminal accusations and past criminal convictions. The new law specifically permits employers to place existing employees on unpaid leave for a “reasonable” amount of time when conducting a Fair Chance Process assessment regarding an employee’s criminal conviction or pending arrest/criminal accusation during employment.
  • Extension to Independent Contractors and Freelancers: Because independent contractors and freelancers are considered employees for certain purposes under the NYCHRL, the amended FCA applies not only to employees and applicants but also to independent contractors and freelance workers. Thus, for example, employers that conduct background checks on independent contractors must follow the Fair Chance Process.
  • New “Relevant Fair Chance Factors”: As referenced above, employers must use the Article 23-A factors when they assess an applicant’s criminal history to determine whether there exists a direct relationship between the alleged wrongdoing that is the subject of the pending arrest or criminal accusation and the employment sought, or the granting of the employment would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public. But when employers assess convictions that occur during employment or pending arrests or criminal charges for both applicants and employees, the amendments create a new set of factors to consider as part of the individualized assessment, which are similar but not identical to the Article 23-A factors. The new factors to be considered as part of the Fair Chance Process in these circumstances (instead of the Article 23-A factors) are:
    1. New York City’s public policy interest in overcoming stigma toward and unnecessary exclusion of persons with criminal justice involvement in employment
    2. The specific duties and responsibilities necessarily related to the employment held by the person
    3. The bearing, if any, of the criminal offense or alleged offense on the individual’s fitness or ability to perform one or more such duties or responsibilities
    4. Whether the person was 25 years of age or younger at the time of occurrence of the criminal offense or alleged offense
    5. The seriousness of such offense or alleged offense
    6. The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public
    7. Any additional information produced by the applicant or employee, or produced on their behalf, in regard to their rehabilitation or good conduct, including history of positive performance and conduct on the job or in the community, or any other evidence of good conduct
  • Expansion of the Types of Criminal History About Which Employers May Never Ask or Base Employment Decisions On: The amendments prohibit “any inquiry in writing or otherwise” or taking any adverse employment action against an applicant or employee based on (i) any non-pending arrest or criminal accusation; (ii) being convicted of a “violation” under New York Penal Law (defined as an offense, other than a traffic infraction, with a potential term of imprisonment of no more than 15 days); (iii) being convicted of a noncriminal offense in another state; (iv) adjournments in contemplation of dismissal; (v) youthful offender adjudications; or (vi) sealed offenses. The Guidance provides a non-exhaustive list of such non-convictions. The Guidance also provides suggested language that employers can use to frame inquiries that may be made after a conditional offer, which avoids soliciting or considering non-conviction information:
    • Have you ever been convicted of a misdemeanor or felony? Answer “NO” if you received an adjournment in contemplation of dismissal (“ACD”) that has not been revoked and restored to the calendar for further prosecution or if your conviction: (a) was sealed, expunged, or reversed on appeal; (b) was for a violation, infraction, or other petty offense such as “disorderly conduct;” (c) resulted in a youthful offender or juvenile delinquency finding; or (d) if you withdrew your plea after completing a court program and were not convicted of a misdemeanor or felony.
  • Requirement to Solicit Information on FCA Factors: Under the new amendments, employers must affirmatively solicit from the individual information relating to Article 23-A and relevant Fair Chance factors (described above) that must be considered when assessing the applicant’s criminal history.
  • Enlargement of Time for Applicants to Respond to Written Analysis: The new law expands the period that an employer must hold the position open (after providing the applicant with the written Fair Chance analysis) from three to five business days for applicants.
  • Misrepresentations: The amended FCA does not prevent employers from taking adverse action against an applicant or employee who has made “intentional misrepresentations” regarding an arrest or a conviction, provided that such adverse action is not based on a failure to disclose information that a person is not required to divulge. In such cases, however, the employer must provide the individual with a copy of the documents that formed the basis of the determination that an intentional misrepresentation was made and give the applicant a “reasonable” time of no less than five business days to respond.

The Bifurcated Screening Process Required by the Legal Enforcement Guidance
The FCA, as recently amended, now explicitly states that “an offer of employment, promotion or transfer…may only be revoked based on one of the following”:

  1. The results of a criminal background check, conducted in accordance with the provisions of the FCA
  2. The results of a medical exam as permitted by the Americans with Disabilities Act (ADA)
  3. Other information the employer could not have reasonably known before making the conditional offer if the employer can show as an affirmative defense that, based on the information, it would not have made the offer regardless of the results of the criminal background check

The Legal Enforcement Guidance states that these narrow grounds for revocation of a conditional offer require employers that review an applicant’s criminal history to implement a two-stage screening process as follows:

  • All noncriminal preemployment screenings, such as (but not limited to) verification of the applicant’s employment and educational history, must be completed before a conditional offer of employment is made.
  • Employers may, after a conditional offer of employment is made, request and review the applicant’s criminal history, which may only be considered in compliance with the individualized assessment and notice requirements of the FCA. (Employers may also conduct a medical examination, consistent with the ADA, after the conditional offer is made. And because driving records may contain both noncriminal and criminal information, the Guidance instructs employers not to review an applicant’s driving record until after a conditional offer has been extended. Noncriminal information in a driving record may be treated as information the employer could not have reasonably known before the conditional offer.)

In the event the employer considers noncriminal information after extending a conditional offer of employment, the Guidance describes the sizable burden an employer must overcome to avoid violating the FCA as follows:

The NYCHRL does not prohibit employers from considering non-criminal information after a conditional offer if the employer can show as an affirmative defense, by a preponderance of the evidence, that (1) the employer could not have reasonably known the information before the conditional offer, and (2) regardless of the results of the criminal background check, the employer would not have made the offer if it had known the information before the offer was extended. Information could reasonably have been known before a conditional offer if the information existed prior to the conditional offer and could have been obtained by an employer exercising reasonable due diligence.

As set forth in the Guidance, the Commission expects employers to work with their consumer reporting agencies to obtain separate noncriminal and criminal background check reports. However, employers whose vendors are unable to produce two separate reports, “or who otherwise face a substantial impediment to conducting two separate background checks,” must “establish a system to internally segregate” the criminal history information from the noncriminal history information to ensure that the decision-maker cannot access the criminal history until after the conditional job offer has been made. Importantly, where criminal information is received prior to a job offer, the burden will be on the employer to prove that the criminal history was inaccessible to decision-makers until after the conditional offer was made.

Moreover, to avoid discouraging applicants with criminal history from applying for a role, the FAQs provide that, generally, an employer may not state in a job application or an advertisement, or at any time prior to a conditional offer of employment being made, that a “background check” is required because that term “is frequently understood to indicate a hiring limitation based on a person’s criminal history.” In addition, the Guidance provides that, when obtaining authorization to procure background information, as required by the Fair Credit Reporting Act (FCRA), employers must not indicate that a “background check” is required or will occur. Rather, the Commission recommends that employers use the terms set forth in the FCRA—“consumer report” and/or “investigative consumer report”—when obtaining authorization to perform these screenings prior to making a conditional offer.

Next Steps for Employers
Employers considering the criminal history of applicants and/or employees should be aware that the amendments significantly expand the protections afforded to employees, applicants and independent contractors/freelancers.

Employers should carefully review the Legal Enforcement Guidance and FAQs immediately, as the new requirements took effect on July 29, 2021. Employers also must coordinate with their background check vendors to ensure that preemployment screenings are bifurcated to comply with the FCA’s requirements set forth above.

Employers should also review and update, as necessary, any policy manuals, background check disclosure and/or authorization forms, and the language of their advertisements and job postings to ensure that they comply with FCA requirements.

Finally, management and human resources personnel should be educated on the FCA’s principles and requirements and the changes to the employer’s internal protocols.
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New York City’s ‘Ban-the-Box’ Amendments Are In Effect
New York City employees, independent contractors and freelancers are now protected by the city’s Fair Chance Act, which forbids adverse employment action against workers based on criminal convictions that aren’t related to the worker’s job or don’t threaten the company’s safety.

The law already banned boxes on initial job applications seeking information about whether an applicant had been convicted of a crime, a prohibition that gives people with criminal histories a fair chance at being hired. In addition to expanding this protection for current workers, freelancers and independent contractors—through amendments that took effect July 29—the law extends to arrests, and New York City employers must now use a two-step background check process.

A “ban-the-box” law will take effect nationally for federal contractors in December. There are also efforts to pass such legislation to apply to the nation’s private-sector employers, regardless of whether they are federal contractors.

We’ve gathered articles on the news from SHRM Online and other outlets.

Two-Step Process
New York City’s law requires that an employer first evaluate an applicant’s noncriminal information, such as education background and employment references. This must happen before the employer extends a conditional job offer. Only after this first step may a New York City business request, receive and evaluate the applicant’s criminal history. The New York City Commission on Human Rights encourages employers to use terms such as “consumer report” rather than “background check” in an authorization notice used prior to a conditional job offer.
(Lexology)

Coverage of Current Employees
The New York City Fair Chance Act amendments provide protections to current employees in connection with convictions arising during employment. The original act applied only to job applicants. Under the amendments, an employer can’t take adverse employment action against an employee based on a conviction unless the employer determines—after reviewing “fair chance factors”—that there is a direct relationship between the conviction and the job or that continuing employment would pose a safety risk.
(The National Law Review)

Federal Fair Chance Act Takes Effect in December
The Federal Fair Chance to Compete for Jobs Act of 2019, which takes effect Dec. 20, prohibits federal contractors and government agencies from requesting or seeking criminal-history information about an applicant for a position before extending a conditional job offer. The law does not preclude pre-offer inquiries when criminal background checks are required by law.
(Kauff McGuire & Margolis)

Other Federal Fair Chance Act Exceptions
The Federal Fair Chance Act also provides two other exceptions to the ban on seeking criminal-history information before extending a conditional job offer:

  • If the position would require access to classified information or involve sensitive law enforcement or national security duties.
  • If the position is identified as excepted by the administrator of general services or, in the case of defense contracts, by the secretary of defense.

(JD Supra)

Workforce Justice Act
Introduced in March, the proposed Workforce Justice Act would give states three years to remove from private-sector employment applications questions that ask job seekers to disclose criminal history. The aim of the proposal is to give job applicants with criminal records a better chance at competing in the labor market. Studies show that people with criminal histories face high unemployment rates and are at risk for recidivism. Washington, D.C., 36 states and more than 150 cities and counties have adopted ban-the-box policies, according to the National Employment Law Project. Fourteen states and 20 cities and counties have extended these policies to private employment.
https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/nyc-ban-the-box-amendments-are-in-effect.aspx

Louisiana Employers Now Subject To “Fair Chance” Law
On June 16, 2021, Louisiana joined the growing list of states and localities with so-called “Fair Chance” laws by enacting its own law restricting an employer’s consideration of criminal history in hiring decisions. With an effective date of August 1, 2021, Louisiana employers should consider an immediate review of their criminal history screening policies to ensure compliance with the new law.

First, unless otherwise provided by law, Louisiana now prohibits employers (those with 20 or more employees in the state) from considering an arrest record or a charge that did not result in a conviction if the information was “received in the course of a background check.”

Next, in terms of considering convictions, the new law adopts as a requirement the Equal Employment Opportunity Commission’s (EEOC) framework for determining whether a conviction is job-related as set out in its 2012 Enforcement Guidance on consideration of convictions and arrests. Specifically, when considering convictions, Louisiana employers now must conduct an individualized assessment of whether an applicant’s criminal history record has a direct and adverse relationship with the specific duties of the job that may justify denying the applicant the position. When making this assessment, the employer must consider:

  • the nature and gravity of the offense or conduct;
  • the time that has elapsed since the offense, conduct, or conviction; and
  • the nature of the job sought.

While the Louisiana law does not include the EEOC’s suggested factors for conducting this assessment, those factors are typically helpful to employers in this regard. Specifically, the EEOC suggests considering:

  • the facts or circumstances surrounding the offense or conduct;
  • the number of offenses for which the individual was convicted;
  • older age at the time of conviction or release from prison;
  • evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct;
  • the length and consistency of employment history before and after the offense or conduct;
  • rehabilitation efforts (e.g., education/training);
  • employment or character references and any other information regarding fitness for the particular position; and
  • whether the individual is bonded under a federal, state, or local bonding program.

While the federal Fair Credit Reporting Act requires that employers considering taking adverse action based in whole or in part on information contained in a background check report provide a copy of the report to the applicant before actually taking action, the Louisiana law also allows an applicant the right to make a written request for “any background check information used during the hiring process.” Thus, if an applicant makes such a request, the employer must provide a copy of the report and any other information the employer considered in making its decision (e.g., online searches, public record court searches, etc.).

An aggrieved applicant can bring an action against the employer provided he or she gives the employer 30 days written notice, which must explain the basis for the alleged violation. The applicant and employer must then “make a good faith effort to resolve the dispute prior to initiating court action.” If that fails, and if the applicant succeeds in proving a violation of the law, the applicant could receive the full range of damages, including compensatory damages, back pay, reinstatement, and attorney’s fees and costs.

Employers in all jurisdictions should consider a privileged review of their pre-employment and hiring practices by experienced counsel. Setting aside the EEOC’s guidance and this new Louisiana law, many other states and localities have their own laws concerning “job relatedness” requirements for an employer’s use of criminal history information, including California, New York, Pennsylvania, and Wisconsin, among many others. Further, subject to narrow exceptions, some states, counties and cities do not even permit employers to inquire about criminal history information on a job application or before a conditional offer, including ordering a criminal background check report from a background check provider (“consumer reporting agency”). In addition, employers continue to be targeted in FCRA class action lawsuits over the process they use to obtain and make decisions based on background check information obtained from a consumer report agency. As a result, employers are well advised to consider evaluating their use of criminal history information and any other background check information to ensure compliance with the FCRA, similar state fair credit reporting statutes and substantive employment laws.
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Puerto Rico Implements Mandatory Vaccination Of Certain Employees, Reinstates Mask Requirements
Puerto Rico Governor Pedro R. Pierluisi has issued an Executive Order (EO-2021-058) making COVID-19 vaccination mandatory for all public employees in the Executive Branch. EO-2021-058, which goes into effect August 16, 2021, also recommends that all commercial establishments and private entities that are open to the public implement similar requirements.

In addition, the Secretary of Health of Puerto Rico has issued an administrative order reinstating masking requirements for fully vaccinated people in all indoor spaces and in outdoor spaces when social distancing of at least six feet is not possible.

Governor Pierluisi also issued EO-2021-062, which goes into effect August 16, 2021, to expand the scope of EO 2021-058 and establish a mandatory vaccination requirement for the following individuals:

  1. Independent contractors in the Executive Branch, and their employees, who physically work in a government agency.
  2. Employees in the health sector (i.e., hospitals, laboratories, emergency rooms, medical services clinics, health centers, medical offices, therapy centers, pharmacies, blood banks, elderly care centers, medical cannabis dispensaries, among others).
  3. Employees and guests of all hotels, hostels, guesthouses, and short-term rentals across the island.

As to vaccination requirements for contractors and employees of certain sectors or industries, EO 2021-062 provides the following:

  • By August 16, 2021, all Executive Branch contractors that physically work in a government agency and all employees in the health sector and employees of hotels, hostels, and guesthouses must submit evidence to their employers of having received at least the first dose of the vaccine, depending on the type of vaccine, and must be fully vaccinated by September 30.
  • All businesses and casinos operating in or near hotels and guesthouses are encouraged to implement the same vaccination requirements.
  • Executive Branch contractors and health sector employees and employees of all hotels, hostels, and guesthouses who are not vaccinated must present a weekly COVID-19 negative result taken within the last 72 hours or a positive COVID-19 result within the last three months and proof of recovery.

As to vaccination requirement for guests in the hospitality industry, EO 2021-062 provides that:

  • Beginning August 16, vaccinations will be required for guests staying at all hotels, hostels, guesthouses, and short-term rentals across the island. Those not vaccinated must present a COVID-19 negative result of a test taken within the last 72 hours or a COVID-19 positive result within the last three months and proof of recovery. If staying longer than a week, they must continue to present negative COVID-19 weekly results for the duration of the stay.

Exceptions to EO 2021-062’s mandatory vaccination requirements include:

  1. Individuals whose immune system is compromised or that have any medical contraindication that prevents inoculation, subject to the following:
    • A doctor authorized to practice in Puerto Rico must certify that the individual has a medical condition that prevents vaccination and state the duration of the medical contraindication and if it is permanent or temporary.
    • If the contraindication is temporary, the individual must comply with the vaccination requirement as soon as the contraindication ceases.
  2. Individuals with religious beliefs against vaccination, subject to:
    • Submitting a sworn statement under penalty of perjury where the individual and the minister or ecclesiastical leader of the religion declare that the individual’s religious beliefs prevent vaccine administration.
    • If the religion does not have a minister or ecclesiastical leader, the individual must submit a sworn statement explaining the sincerely held religious conviction.

EO 2021-062 also establishes consequences for individuals who fail to comply with the mandatory vaccination requirements and do not fall within one of the exceptions:

  • Executive Branch contractors and their employees will not be allowed to be physically in the government office. If physical presence in the office is necessary, the agency may terminate the contract.
  • Health sector employees and employees who work in hotels and guesthouses cannot return to the physical workplace. The employer may take any pertinent measures, including allowing the employee to use applicable paid and unpaid leaves.
  • Individuals will not be allowed to spend the night in hotels, hostels, guesthouses, or short-term vacation rentals.

Failure to comply with EO 2021-062 may result in fines of up to $5,000, six months in jail, or both, at the discretion of a court.
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New York DOL Releases Model Plans Under HERO Act
Question: I understand the NY DOL recently released model plans for the NY HERO Act. What do employers need to do to comply?

Answer: The New York Health and Essential Rights Act (NY HERO Act or Act) requires employers to implement workplace health and safety measures to protect employees during a future airborne infectious disease outbreak. The Act applies to all private employers and to all worksites.

The Act contains two primary components: (1) a requirement to develop prevention plans; and (2) a requirement to permit employees to establish workplace safety committees.

The NY HERO Act was enacted on May 5, and originally intended to take effect 30 days thereafter, but later extended to July 5. Employers have 30 days, or until August 5, to adopt a prevention plan that meets the Act’s requirements. Employees then have an additional 30 days to provide a copy of the prevention plan to employees in English or the employee’s primary language (if not English).

Employers are not required to actually implement their prevention plans until the NY Commissioner of Health designates an outbreak of an airborne infectious disease. Currently, there is no such designation, so there is no requirement to implement any prevention plan. As discussed in more detail below, implementation involves employee training and enforcement measures (as opposed to adoption, which requires having a plan in place and distributing it to employees).

Employers may either develop their own prevention plan or adopt one of the released NY DOL template plans. The NY DOL has created a general template plan and a number of industry-specific template plans, including ones for construction, delivery services, food services, and retail. Employers who develop their own plan must do so with the “meaningful participation of employees,” and the plan must be tailored and specific to the hazards of the employer’s specific industry and worksite.

A prevention plan must include the following aspects:

  • Employee health screenings;
  • Face coverings (which must be provided at no cost to employees);
  • Personal protective equipment (PPE);
  • Hand hygiene stations and handwashing protocols;
  • Cleaning and disinfecting of shared equipment, frequently touched surfaces, and common areas;
  • Social distancing; and
  • Compliance with mandatory or precautionary orders of isolation or quarantine.

If the type of work and worksite does not allow for sufficient protection under only the above protocols, employers must determine whether additional protections are required, such as:

  • Temporary elimination of services that require close proximate contact;
  • Air filters and purifiers;
  • Automatic disinfection systems; and
  • Installation of barriers.

Upon an outbreak of an airborne infectious disease (as designated by the NY Commissioner of Health), employers must:

  • Immediately review their prevention plan and update as needed to ensure compliance with federal, state, and local government mandates and guidance related to the infectious disease;
  • Activate their prevention plan;
  • Provide verbal review of the prevention plan to their employees (either in person or virtually);
  • Provide each employee with a copy of the prevention plan in English or in each employee’s primary language; and
  • Post a copy of the prevention plan at the worksite, and ensure a copy is accessible to employees during all work shifts.

During the outbreak, employers must:

  • Ensure the prevention plan is adequately enforced;
  • Regularly check for updated information provided by the NY Department of Health and Center for Disease Control and update the plan as needed; and
  • Designate one or more supervisory employees to enforce compliance with the prevention plan and any other federal, state, or local guidance.

Employers without prevention plans may be assessed a minimum penalty of $50 per day until a plan is implemented. Employers not complying with their prevention plan during a designated airborne infectious disease period may be assessed a civil fine of between $1,000 and $10,000. Employees can also bring a lawsuit seeking injunctive relief, and if successful, can recover attorneys’ fees and costs and liquidated damages of up to $20,000. Before bringing a lawsuit, an employee must give the employer notice of the alleged violation, and if the employer corrects the violation, no lawsuit can be brought.

The Act also requires employers to permit employees to establish and maintain workplace safety committees to raise workplace health and safety concerns and review relevant employer policies. This portion of the Act is effective November 1, and only applies to employers with 10 or more employees (versus the prevention plan portion, which applies to all employers). The Act does not require employers to actually create such committees; rather, if employees wish to form committees, the employer must permit them. The Act includes rules for committee formation and membership, as well as paid time for committee members to devote to committee activities (up to 4 hours for an initial training and up to 2 hours per quarter for committee meetings).
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Maine Limits Employers From Requesting Criminal History Of Applicants Pre-Offer
Maine’s new “An Act Relating to Fair Chance in Employment” prohibits employers from requesting an applicant’s criminal history on their initial employment applications. An employer may ask about an applicant’s criminal history during an interview or once the applicant has been determined qualified for the position.

The new law was signed by Governor Janet Mills on July 6, 2021, and goes into effect October 18, 2021

There are exceptions to the prohibition. An employer may ask about criminal convictions on the application if:

  • The position is one in which any federal or state law or regulation or rule creates a mandatory or presumptive disqualification based on a conviction for one or more types of criminal offenses and the questions on the initial employee application form are limited to the types of criminal offenses creating the disqualification;
  • The employer is subject to an obligation imposed by any federal or state law or regulation or rule not to employ a person, in either one or more positions, who has been convicted of one or more types of criminal offenses and the questions on the initial employee application form are limited to the types of criminal offenses creating the obligation;
  • The employer is required by federal or state law or regulation or rule to conduct a criminal history record check for the position for which the prospective employee is applying; or
  • The employer participates in a program that encourages employment of persons with criminal convictions.

An employer also may not state, either on the application or in an advertisement, that a person with a criminal history cannot apply or will not be considered for a position. The exceptions to this rule are where federal or state law, regulation, or rule create a mandatory disqualification based on a conviction or the employer is required under federal or state law, regulation, or rule to conduct a criminal background check.

If an employer enquires about an applicant’s criminal history or an applicant’s criminal history is revealed otherwise during the process, a best practice remains: giving the candidate the opportunity to explain the conviction and the circumstances around it. An individualized assessment gives the individual the opportunity to present information (for example, about any rehabilitation) and the employer to assess a variety of factors to determine job-relatedness and whether the decision is consistent with business necessity.

Individuals or the state Department of Labor may bring a civil action for violations of this statute and the Attorney General may investigate and bring an enforcement action for complaints of employment discrimination under this new statute.
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Denver’s New Vaccine Mandate For Some Private-Sector Employers
Colorado employers already grappling with mandatory paid sick leave and complex job posting requirements may now be obligated to implement mandatory vaccination policies for their employees.

On Monday, August 2, 2021, Denver Mayor Michael Hancock announced a mandatory vaccination requirement for the City’s 10,000-plus workers and certain private-sector workers in high-risk settings. Denver is the first major U.S. city to mandate COVID-19 vaccinations for private-sector employees. The City’s Department of Public Health & Environment (“DDPHE”) claims that, as the accredited public health agency for the City and County of Denver, it has the authority to mandate vaccinations to protect the public from immediate and imminent risk to its health and safety. See City of Denver FAQs.

The DDPHE Order (“Order”) requires employees who work for the following entities to be fully vaccinated by September 30, 2021:

  • City and County of Denver employees;
  • nursing facilities, assisted living residences, intermediate care facilities and group homes;
  • hospitals;
  • clinical settings- including ambulance service centers, urgent care centers, non-ambulatory surgical structures, clinics, dentist offices, and non-urgent care medical structures;
  • limited healthcare settings where healthcare services are provided, including (but not limited to) acupuncture, audiology services, services by hearing aid providers, chiropractic care, massage therapy, naturopathic care, occupational therapy services, optometry, ophthalmology, physical therapy, and speech language pathology services;
  • shelters for people experiencing homelessness, including day and overnight shelters;
  • correctional facilities- including jails, detention centers and community corrections sites and residences;
  • schools- including post-secondary and higher education (not including K-12 students);
  • childcare centers and services;
  • home care services; and
  • first responder services.

Under the Order, fully-vaccinated employees are those who are two weeks past their second vaccine dose. This means that covered employees must have received their second dose (or first dose if getting the single-dose vaccine) by September 15, 2021. In addition, covered employers must complete their initial assessment of vaccination status of all employees by September 30, 2021. Those employees who decline to provide their vaccination status or whose vaccination status is unknown must be treated as not fully vaccinated. Hospitals may complete their initial assessment of vaccination status in conjunction with meeting their flu and other vaccination requirements.

According to City of Denver guidance, covered employees who are not fully vaccinated by September 30, 2021, will not be permitted to work onsite or in the field. Covered employers are left to decide how they will enforce the vaccination requirement with their employees, but according to the City’s FAQs, employers may choose disciplinary action to gain compliance, presumably even termination. Those covered employers and employees who do not comply with the vaccination requirement are subject to enforcement actions by the DDPHE, the agency tasked with enforcing the Order. The City has not yet issued a statement as to what those enforcement actions will be. Employers must provide reasonable accommodations for employees with medical or religious reasons for not getting vaccinated.

There are still many questions related to what this Order means for covered employees and employers alike. What is clear, however, is that covered employers without a current mandatory vaccination policy must put one in place as soon as possible to ensure they are compliant with the fast-approaching deadlines. Such employers must also make sure they are prepared to work with employees who request a medical or religious exemption to the vaccination.
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Montana Releases FAQs On Vaccine Discrimination Law
The Montana Department of Labor & Industry has released several FAQs clarifying Montana House Bill 702. The law, which went into effect on May 7, 2021, prohibits employers from mandating the current COVID-19 vaccines and recognizes an individual’s vaccination status as a protected category under the Montana Human Rights Act. Employers, therefore, are barred from discriminating against an individual in compensation or in a term, condition, or privilege of employment based on vaccination status or possession of an immunity passport.

Many of the FAQs are simply reiterations of certain provisions of the statute, while others provide helpful clarifications regarding the law. The following are some key takeaways for employers:

  • Asking Employees About Vaccination Status: The FAQs clarify that nothing in the law prohibits employers from asking about vaccination status or whether an individual has an immunity passport. A person is not, however, required to respond to such inquiries and may not be discriminated against for not responding.
  • Vaccination Incentives: According to the FAQs, employers are in fact allowed to offer incentives to employees to become vaccinated voluntarily, so long as the nature of the incentive is not discriminatory (“not so substantial as to be coercive”). It states, “[f]or example, an incentive in the form of a small gift, such as a water bottle or gift card worth less than $25, is generally not considered discriminatory.” The FAQ then points to EEOC Guidance What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws for further guidance on the topic. Thus, it is reasonable to assume that as long as the vaccine incentive is modest, it will pass muster in Montana.
  • Requiring Masks in the Workplace: The law prohibits employers from discriminating against unvaccinated workers—or those who choose not to disclose vaccination status—by requiring them to wear masks on their premises or during the course of employment. In an interesting twist, the FAQs clarify that employers may indeed ask, request, or even require that everyone on their premises or during the course of employment wear masks, regardless of vaccination status, as long as accommodations are made for sincerely held religious beliefs, medical conditions and disabilities that preclude receiving the vaccine.
  • Healthcare Facilities: The law permits healthcare facilities to ask their employees to volunteer their vaccination status, and to assume an employee who declines to provide their vaccination status is not vaccinated. If a healthcare facility determines an employee is not vaccinated, the facility may implement “reasonable accommodation measures to protect the safety and health of employees, patients, visitors and other persons from communicable diseases.” The FAQs indicate that the reasonable accommodation measures imposed by a healthcare facility to protect and promote safety and health may include a face covering requirement for all employees, patients, visitors, and other persons who are unvaccinated or non-immune or assumed to be unvaccinated or non-immune. Alternatively, the healthcare facility can simply choose to require everyone to wear masks on the premises regardless of vaccination status, as long as accommodations are made for sincerely held religious beliefs, medical conditions and disabilities that preclude receiving the vaccine.

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Oregon Announces Coming Rule For Weekly Tests Of Unvaccinated Healthcare Workers
On August 4, 2021, Oregon Governor Kate Brown announced that the Oregon Health Authority (OHA) will create a rule requiring healthcare workers to submit to weekly COVID-19 testing if they are not vaccinated. Based on the governor’s announcement, OHA’s rule will require healthcare workers to show they have been vaccinated for COVID-19 by September 30, 2021. Oregon will require healthcare employers to pay for the weekly testing of their unvaccinated employees.

The governor has stated that the rule will extend to workers at in-home care, out-patient facilities, long-term care facilities, and more. Importantly, the rule will apply to non-patient-facing employees as well as those who directly interact with patients. Finally, workers in settings that include infectious materials, such as laboratories, will also be covered by the new rule.
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Mandatory Employee Vaccines – Coming To A State Near You?
While available vaccines have proven highly effective in controlling COVID-19 and its variants to date, the virus continues to spread—particularly among unvaccinated populations. In the face of flagging interest, officials across the U.S. have tried different approaches to increase vaccination rates. For example, officials launched incentive programs, stressed personal responsibility, deployed mobile vaccination units, and coordinated with corporate and community partners to encourage and effectuate vaccine uptake.

But having exhausted these avenues, and with the rise of more contagious COVID-19 variants, some officials are going a step further. In recent weeks, several states and municipalities have announced that, in essence, they are requiring certain categories of workers to be vaccinated. Generally, under these types of mandates, workers who decline vaccination must comply with measures that do not apply to their vaccinated counterparts, such as weekly COVID-19 testing and/or mask wearing. Depending on the jurisdiction and the sector involved, however, unvaccinated workers might not have such alternatives.

The chart in the link below provides basic information on vaccination mandates issued at the statewide level. It covers directives that affect public or private entities as employers. This post does not address local guidance, orders that relate to customer or patron vaccination status (e.g., “vaccine passports”), or recommendations that do not impose obligations.
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California Mandates Vaccination For Workers In The Health Care Industry By September 30th
With the significant increase in COVID-19 cases, the state of California has started implementing new measures to try to combat the rise. On July 26, 2021, the California Department of Public Health (CDPH) issued an order requiring covered healthcare facilities to verify the vaccination status of all workers and put mandatory testing requirements in place for those employees who are unvaccinated.

Only a week and a half later, CDPH issued a new, first in the nation, order mandating that workers who provide services or work in certain health care facilities receive their first dose of a one-dose vaccine or their second dose of a two-dose vaccine by September 30, 2021.

Covered Facilities
Workers for the following facilities are covered by the order:

  • General Acute Care Hospitals
  • Skilled Nursing Facilities (including Subacute Facilities)
  • Intermediate Care Facilities
  • Acute Psychiatric Hospitals
  • Adult Day Health Care Centers
  • Program of All-Inclusive Care for the Elderly (PACE) and PACE Centers
  • Ambulatory Surgery Centers
  • Chemical Dependency Recovery Hospitals
  • Clinics & Doctor Offices (including behavioral health, surgical)
  • Congregate Living Health Facilities
  • Dialysis Centers
  • Hospice Facilities
  • Pediatric Day Health and Respite Care Facilities
  • Residential Substance Use Treatment and Mental Health Treatment Facilities

Covered Workers
“Worker” for purposes of the order is defined as all paid and unpaid individuals who work in indoor settings where care is provided to patients or patients have access for any purpose. Per the order, this includes workers who have the potential for direct or indirect exposure to patients, and include nurses, technicians, students, contractual staff not employed by the facility directly, security, facilities management, administrative, and billing personnel.

Exemptions
Workers may be exempt from the vaccination requirements only if they provide a declination form signed by the worker stating that they are declining based on religious beliefs or due to a qualifying medical reason. To be eligible for the qualified medical reason exemption the worker must provide their employer a written statement signed by a physician, nurse practitioner, or another licensed medical professional practicing under the license of a physician, stating the individual qualifies for the exemption. The statement should also indicate the probable duration of the worker’s inability to receive the vaccine if known. The statement should not describe the underlying medical condition or disability.

Exempt workers must be tested for COVID-19 twice weekly if in acute health care and long-term care settings, and once weekly if in other health care settings. Exempt workers must also wear a surgical mask or higher-level respirator approved by the National Institute of Occupational Safety and Health, such as an N95 filtering facepiece respirator, at all times while in the facility.

Recordkeeping
Consistent with privacy laws and regulations, the facility must maintain records of each worker’s vaccination status or exemption. For those employees who are exempt from the vaccination requirement, the facility must also maintain all COVID-19 test results.
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Medical Cannabis Patients In Puerto Rico Gain Employment Protections
Registered and authorized patients of medical cannabis in Puerto Rico are considered a protected category for purposes of all employment laws under an amendment to the “Act to Manage the Study, Development and Investigation of Cannabis for Innovation, Applicable Norms and Limitations” signed by Governor Pedro R. Pierluisi on July 29, 2021. The law took effect immediately.

Under the amendment, Puerto Rico Law 15-2021, employers may not discriminate against registered and authorized patients of medical cannabis in the recruitment, hiring, designation, or termination process or when imposing disciplinary actions.

Exceptions
The provisions of Law 15-2021 will not protect registered and authorized patients of medical cannabis if the employer can establish, by a preponderance of evidence, that:

  1. The use of medical cannabis represents a real threat of harm or danger to others or property;
  2. The use of medical cannabis interferes with the employee’s performance and functions;
  3. Permitting the use of medical cannabis would expose the employer to the risk of losing any license, permit, or certification related to any federal law, regulation, program, or fund; or
  4. The registered and authorized patient made use of or possess medical cannabis during working time or in the workplace without the employer’s written authorization.

Employers’ Protections for Hiring Medical Cannabis Patients
Law 15-2021 protects employers that hire registered and authorized medical cannabis patients from being penalized or denied a contract, license, permit, certification, benefits, or funds under the laws of the Commonwealth of Puerto Rico.

Implications
The provisions of Law 15-2021 are to be interpreted liberally in favor of the registered and authorized patients of medical cannabis.

Further, the Medical Cannabis Regulatory Board and the Department of Labor and Human Resources must adopt any regulations or administrative measures to ensure the effective implementation of Law 15-2021 by October 27, 2021.

Employers should revise their drug testing and discrimination policies to comply with Law 15-2021.
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New Jersey Marijuana Law Employment Provisions Take Effect
On August 19, 2021, the New Jersey Cannabis Regulatory Commission (the Commission) issued long-awaited initial rules implementing the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (the Act), which Governor Murphy signed on February 22, 2021. The Act legalizes the use of recreational marijuana for adults over the age of 21 and creates many obstacles for employers seeking to maintain a drug-free workplace. The new rules deal almost exclusively with the provisions governing the recreational cannabis market, leaving many employer questions unanswered.

While the Act became immediately effective upon enactment in February, the general employment provisions of the Act were not operative until the Commission adopted initial rules. Now that those rules have been adopted, the provision of the Act stating “[n]o employer shall…take any adverse action against any employee…because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items, and an employee shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid” is now effective.

While the Act states employers may prohibit employees from using or possessing marijuana in the workplace or during work hours, it also prohibits employers from acting solely on the basis of a positive drug test. Employers may act if an employee comes to work impaired by marijuana. In order to demonstrate impairment, the statute requires an employer to both obtain the opinion of a Certified Workplace Impairment Recognition Expert (WIRE) to determine whether the individual is impaired at work and to test using scientifically valid testing methods.

Surprisingly, the regulations state only that, at this time, employers are not required to perform a physical evaluation until the Commission develops the standards for a WIRE certification. Notably, while no physical evaluation is required until the Commission promulgates additional regulations, the above-quoted provision precluding adverse action based solely on the presence of cannabinoid metabolites appears to still be in effect. We recommend that employers with reasonable suspicion and/or post-accident testing policies document their reasons for concluding an individual might be impaired at work as part of their testing program.

While marijuana testing remains permitted, absent reason to believe an individual may be impaired, an employer cannot take an adverse action based solely on a positive drug test, limiting the usefulness of pre-employment or random drug testing. Until the Commission issues further guidance, employers should proceed carefully in their application of drug-testing policies in the state and are advised to reach out to legal counsel for guidance.
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Florida Ban On Requiring Vaccine Passports Banned (For Now)
Florida employers can require employees to obtain COVID-19 vaccinations, submit records of such vaccination, and implement other safety measures for their workplaces notwithstanding national publicity suggesting that recent Florida rules, orders, and laws prohibit or discourage these public health measures. As the pandemic worsens it is important for employers to understand both the specific terms and the limits of Florida’s enactments.

How Did We Get Here?
On April 2, 2021, Florida Governor Ron DeSantis issued an executive order prohibiting businesses in Florida from “requiring patrons or customers to provide any documentation certifying COVID-19 vaccination or post-transmission recovery to gain access to, entry upon, or service from the business.” A month later, the Florida Legislature passed, and the governor signed into law, a bill applying that prohibition to all business entities, enforceable by imposition of a fine up to $5,000 per violation effective July 1. (§ 381.00316, Fla. Stat.)

On July 30, 2021, assertedly “in response to several Florida school boards considering or implementing mask mandates in their schools,” Governor DeSantis issued another executive order (E.O. 21-175), directing the Florida Departments of Education and Health to take action necessary to ensure that safety protocols for controlling the spread of COVID-19 allow parents to decide whether their children should wear masks in school. This EO threatens to withhold state funding from school districts that violate such rules. On August 6 the Florida Department of Health announced a rule allowing parents to opt out of a school district’s mask mandate. With schools opening this week, many school districts have mandated masks unless a parent opts out of the requirement.

On August 8, United States District Judge Kathleen M. Williams in the Southern District of Florida granted an injunction against enforcement of Florida Statute 381.00316 against cruise lines that want to require all passengers to provide proof of vaccination. Judge Williams found that the law’s prohibition against such a requirement is likely to be found unconstitutional as an impermissible restriction on free speech. While her opinion is limited to the cruise lines that filed the lawsuit, her reasoning the state cannot restrict businesses from asking for documented proof of vaccinations is also likely to be applied in similar circumstances.

In the last week, several public-school students throughout Florida have also filed legal actions challenging EO 21-175 and arguing that prohibition of school mask mandates not only impermissibly infringes on free speech, but also exceeds the governor’s constitutional authority, as the power of regulating schools rests with local school districts under the Florida Constitution. While no court has ruled on these challenges yet, an outcome similar to that in the cruise line case may squelch any further attempt to prohibit school mask mandates.

Where Does This Leave Employers?
Given all these developments, it is understandable that the general public is confused about whether and to what extent business entities and local governments can mandate public health restrictions in an effort to control the pandemic. Areas of confusion include general masking requirements, the difference between asking for vaccination status versus asking for vaccination documentation and whether certain prohibitions can be applied to customers versus employees. Such confusion can make it harder for employers to implement safety rules and obtain buy-in from employees.

To clarify: Florida Statute 381.00316 does not prohibit public or private employers in Florida from requiring their employees, vendors, or independent contractors to be vaccinated or to provide COVID-19 vaccination documentation. No Florida statute or order prohibits public or private employers from requiring employees to wear masks or socially distance. Executive Order 21-175 does not prohibit school districts from requiring employees to wear masks. Notwithstanding any of the recent developments, Florida employers have a general duty codified in the Occupational Safety and Health Act to keep their employees safe.

With the new resurgence of COVID-19 infections in Florida far outpacing the worst infection rates to date, more companies are considering the adoption of rules requiring mandatory vaccination and vaccination proof. Judge Williams’s order against Governor DeSantis’s attempt to prohibit entities from asking for vaccination documentation strongly suggests that the right and responsibility of corporate entities in Florida to maintain reasonable safety standards, including such measures, may be constitutionally protected. Employers are taking note of Judge Williams’s express statement at several points in her nearly 60-page order that nothing prohibits employers from taking these reasonable safety steps. More litigation of these and related issues is, of course, likely in the future.

There remain serious legal and human resource considerations for employers to consider before implementing mandatory vaccination policies or incentive programs in Florida and elsewhere. Any employer operating in Florida considering a move in this direction would be strongly advised to work with experienced employment counsel to ensure such policies comply with state and federal law, including allowance for appropriate accommodations, and are otherwise properly implemented.
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New Jersey: Vaccines Or Testing For Workers In Healthcare And High-Risk Congregate Settings
New Jersey is requiring employers in covered healthcare and high-risk congregate settings (“covered settings”) to establish a policy that: (1) mandates vaccinations or weekly testing for workers; (2) creates a system to track the results of the applicable testing requirements; and (3) creates a system to communicate the results of such testing to local public health departments.

Executive Order 252 (EO 252), issued by Governor Phil Murphy on August 6, 2021, takes effect on September 7, 2021. Employers in the “covered settings” must ensure adequate policies, privacy protections, and training or education procedures are in place to comply with the mandate.

Covered Settings
EO 252 covers a wide variety of settings, ranging from hospitals to adult daycare to correctional facilities. “Covered settings” are defined as:

Healthcare facilities:

  1. Acute, pediatric, inpatient rehabilitation, and psychiatric hospitals (including specialty hospitals, and ambulatory surgical centers);
  2. Long-term care facilities;
  3. Intermediate care facilities;
  4. Residential detox, short-term, and long-term residential substance abuse disorder treatment facilities;
  5. Clinic-based settings (e.g., ambulatory care, urgent care clinics, dialysis centers, Federally Qualified Health Sites, family planning sites, and opioid treatment programs);
  6. Community-based healthcare settings (e.g., Program of All-Inclusive Care for the Elderly, pediatric and adult medical daycare programs, and licensed home health agencies and registered health care service firms);

High-risk congregate settings:

  1. State and county correctional facilities;
  2. Secure care facilities operated by the Juvenile Justice Commission;
  3. Licensed community residences for individuals with intellectual developmental disabilities (IDD) or traumatic brain injuries (TBI);
  4. Licensed community residences for adults with mental illness;
  5. Certified day programs from individuals with IDD or TBI; and
  6. Certain long-term care facilities subject to prior New Jersey Department of Health Executive Directives.

EO 252 does not mention office settings. Instead, it appears to focus primarily on settings where larger numbers of individuals may be present.

Requirements
By September 7, 2021, covered settings must establish a policy that requires “covered workers” to:

  1. Provide adequate proof of full vaccination; or
  2. Submit to testing (one to two times per week at a minimum).

Covered workers who are not fully vaccinated or have not provided adequate proof of vaccination by September 7, 2021, must submit to the testing protocol on an ongoing basis or until fully vaccinated.

Covered Workers
EO 252 expressly applies not only to employees (full-time or part-time), but to contractors and any other individuals working at the covered setting, including individuals providing operational or custodial services or administrative support. Arguably, other individuals working in covered settings may be covered by the requirements. These may include vendors, outside entities, and third-party providers who perform occasional or temporary services in a covered setting (e.g., third-party security services, technicians, and repairpersons).

While EO 252 does not address whether individuals occasionally visiting a site for commercial purposes (e.g., sales and meetings between companies) fall within its requirements, the conservative approach may be to require all individuals at a covered setting for commercial purposes also comply.

Vaccine, Proof
A covered worker is considered “fully vaccinated” two weeks or more following the administration of a second vaccine dose in a two-dose series or two weeks or more after a single dose vaccination. Any administered vaccine must be authorized for emergency use by the Food and Drug Administration or the World Health Organization.

Acceptable proof for vaccination status includes:

  1. The Centers for Disease Control and Prevention COVID-19 Vaccination Card issued by the vaccination site (or an electronic or physical copy of the card);
  2. An official record from the New Jersey Immunization Information System (or other state registry);
  3. A record from a healthcare provider’s portal or record system on official letterhead, signed by a licensed physician, physician assistant, nurse practitioner, registered nurse, or pharmacist;
  4. A military immunization record from the Armed Forces; or
  5. A docket mobile phone application record or any state specific application that produces a digital health record.

Certifications alone will not satisfy the proof requirement. Covered settings must implement appropriate safeguards to protect the health information provided. If a worker’s vaccination status is unknown or the worker fails to provide adequate evidence of vaccination, the covered setting must treat the individual as unvaccinated for purposes of the policy.

Starting September 7, 2021, any unvaccinated covered worker in a covered setting must submit to testing at least one to two times per week. The worker may choose an antigen or molecular test, if the test is approved by the Food and Drug Administration, or tests operating pursuant to the Laboratory Developed Test requirements provided by the U.S. Centers for Medicare and Medicaid Services. If the covered setting offers access to testing, it may choose the antigen or molecular test. While silent on the issue, the covered worker presumably may choose whether to submit to testing through the covered setting or at a testing provider of their choice. If a covered worker is not working on-site at the covered setting during a week when testing would otherwise be required, the worker is not required to submit to testing that week.

The covered setting also must establish a policy for recording test results and report those results to its local health department. Healthcare employers should maintain vaccination records and testing results in a separate medical file, apart from any medical file that may be otherwise maintained by the employer.

***
EO 252 states that its requirements constitute only a floor and that covered settings may promulgate more stringent requirements or more frequent testing. While not discussed in EO 252, issues regarding accommodations (including medical or religious accommodations) are presumably within the ambit of the order’s weekly testing alternative.

Furthermore, EO 252 may present issues regarding privacy (e.g., recording and transmission of protected health information), employee pay (e.g., compensability of time spent completing tests and cost of tests), and other matters that will require covered employers to move quickly to prepare compliant policies.
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Iowa Supreme Court: City’s “Ban The Box” Ordinance Is Preempted By State Law, But Not Entirely
The Iowa Supreme Court has ruled that Iowa state law preempts the City of Waterloo’s restriction on employers’ use of applicants’ criminal record history when making hiring decisions. Other aspects of the ordinance, however, remain legal and enforceable. The case is Iowa Ass’n of Bus. & Indus. v. City of Waterloo, Case No. 20-0575, 961 N.W.2d 465 (Iowa 2021).

In 2019, the City of Waterloo, Iowa passed Ordinance 5522, a “ban the box” law that prescribes when an employer may legally inquire into an applicant’s criminal record history during the hiring process and restricts an employer’s use of an applicant’s criminal record history in hiring decisions. The Iowa Association of Business and Industry (ABI) challenged Ordinance 5522 in court, seeking injunctive and declaratory relief on the grounds that the ordinance violates state law, namely Iowa Code section 364.3(12)(a). Section 364.3(12)(a) prohibits cities from adopting ordinances that provide for terms or conditions of employment that exceed or conflict with federal or state law.

The trial court upheld the legality of Ordinance 5522 and ABI appealed.

On appeal, the Iowa Supreme Court focused on Iowa Code section 364.3(12)(a) and whether Ordinance 5522’s restrictions: (1) exceed or conflict with federal or state law; and (2) amount to terms and conditions of employment. The Court first determined that the ordinance’s restrictions exceed the requirements of both Title VII of the Civil Rights Act of 1964 and the Iowa Civil Rights Act. In reaching this decision, the Court considered the U.S. Equal Employment Opportunity Commission’s guidance that an employer could be liable under Title VII if its use of a criminal background check had a “disparate impact” on job applicants of a particular race and if the background check was not “job related and consistent with business necessity.”

Having satisfied the first prong of the analysis, the Court next concluded that Ordinance 5522’s restrictions on an employer’s use of an applicant’s criminal history in making employment decisions amounts to a term and condition of employment, and therefore satisfies the second prong. However, the Court only extended its ruling to the employer’s “use” of the criminal history, not the employer’s “inquiry.” The Court then severed the ordinance’s preempted “use” restriction and upheld the legality of the ordinance’s remaining limitation on “inquiries.”

This case offers three important takeaways for employers. First, Iowa courts will sever all or parts of county or municipal statutes deemed to exceed or conflict with federal or state law. Second, businesses operating in Waterloo should be aware of Ordinance 5522, and its scope in light of the Iowa Supreme Court ruling. Third, periodically check the laws for the city/county in which your business is based. Do not assume that only state and federal law apply.
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Washington And Oregon Join California In Mandating Vaccination For Health Care Workers
On August 9, 2021, Washington state announced that it will be requiring state employees and in state health care workers to be fully vaccinated against COVID-19 by October 18, 2021, which was followed by a similar announcement from Oregon on August 19, 2021.

Other states—namely, New York—announced earlier in July that state employees, including patient-facing employees in state-run health care facilities, will be required to get vaccinated for COVID-19 or else will be required to be tested for COVID-19 on a weekly basis after Labor Day. This announcement came shortly after the federal government’s announcement that all federal employees would similarly be required to get vaccinated or be subjected to weekly tests and other safety measures.

On August 5, California became the first state to expand this vaccine mandate to all health care workers, as opposed to only health care workers employed by the state. Citing the rising rates of COVID-19 infection due to the Delta variant, California ordered all workers who provide services for or work in health care facilities to receive the final dose of their COVID-19 vaccine regimen by September 30, 2021. Employees are permitted exemptions for religious or medical reasons, though the latter requires employees to produce a note from a health care provider. Health care facilities with exempt employees must require these employees to wear a mask at all times in the facility and to continue COVID-19 testing once or twice weekly, depending on the type of care setting. Unlike the prior rules, employees must be exempted from the vaccination requirement in order to undergo screening instead; facilities that permit employees to undergo screening absent a basis for exemption would be in violation of the order.

On August 4, Oregon Governor Kate Brown announced that the state would also require health care workers to be vaccinated. Pursuant to this announcement, on August 9, the Oregon Health Authority adopted temporary rules requiring all workers in health care facilities to be vaccinated by September 30, 2021. While the rules originally allowed facilities to require either vaccination or weekly testing, two weeks later, Governor Brown then announced on August 19 that Oregon would eliminate the weekly testing option and instead required all health care workers be vaccinated by October 18 (or six weeks after FDA approval of the vaccine). Noncompliant employers could be fined US$500 per day per violation.

Similarly, on August 9, Washington announced that state employees and workers in private health care and long-term care settings have until October 18 to get fully vaccinated. While broader than California’s order insofar as it also applies to state employees, like California, this requirement will be a condition of employment, meaning that non-vaccinated employees will face “non-disciplinary dismissal” for failure to meet job requirements. Of course, employees may be exempted for religious or medical reasons, but there “may be” additional safety requirements for such individuals.

With so many states so quickly following the lead of the federal government’s requirements for its workers—and, indeed, expanding and strengthening those requirements—these developments constitute a national trend that will be important for employers to watch. States are not in agreement with which employees these policies should cover and how strict the policies should be, so the trend is particularly important to watch closely.
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Court Cases

Supreme Court Blocks Biden Administration’s Eviction Moratorium
The Supreme Court late Thursday blocked the Centers for Disease Control and Prevention from enforcing the federal moratorium on evicting renters during the coronavirus pandemic, a defeat for the Biden administration’s effort to continue the moratorium even though the court had signaled that the action lacked the proper legal basis.

The current moratorium, which was imposed in early August, had been due to expire in early October. It was challenged by a group of landlords who argued that the CDC had no authority to impose such a restriction on its own.

They said the country’s landlords have been losing as much as $19 billion a month.

“Congress never gave the CDC the staggering amount of power it claims,” the landlords argued in their filing in the Supreme Court.

In an unsigned opinion, six justices agreed.

“It would be one thing if Congress had specifically authorized the action that the CDC has taken. But that has not happened,” they wrote. “Instead, the CDC has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination.” The opinion added, “It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.”

Congress imposed the first moratorium on evictions in March 2020 as part of the first coronavirus stimulus bill, the CARES Act. When that expired, the CDC issued a moratorium of its own at the direction of President Donald Trump, which was extended through the end of July. Acting on a lawsuit brought by the landlords, members of the Supreme Court declined to block it in June but signaled their concerns.

Four justices said they would have granted the request to block the moratorium. Brett Kavanaugh said he would have, too, but decided not to because, at that point in late June, it was to have lasted only a few more weeks. He said only Congress could impose such a nationwide moratorium.

The court’s three liberals—Stephen Breyer, Sonia Sotomayor and Elena Kagan—dissented from Thursday’s order. While individual landlords said they have lost thousands of dollars in rental income, Congress has appropriated more than $46.5 billion to help pay back rent, Breyer said, writing for the three.

“Compare that injury to the irreparable harm” from blocking the moratorium with coronavirus transmission rates spiking, he said.

A half-dozen states have eviction moratoriums that are not affected by the Supreme Court’s action—California, Minnesota, New Jersey, New Mexico, New York and Washington. The District of Columbia also has a local moratorium.
https://www.nbcnews.com/politics/supreme-court/supreme-court-blocks-biden-administration-s-eviction-moratorium-n1277765

Federal Court In California Greenlights Drug Testing Of Job Applicants
A U.S. District Court recently dismissed the lawsuit of a former employee who claimed disability discrimination after he was terminated for testing positive for marijuana in a pre-employment drug test. Espindola v. Wismettac Asian Foods, Inc., Case 2:20-cv-03702 (C.D. Cal. Apr. 28, 2021). The Court held that an employer can condition an offer of employment on passing a pre-employment drug screening, including a test for marijuana (the recreational use of which has been legal in California since 2018). The Court further held that an employer does not have any obligation to engage in the interactive process before terminating an employee under such circumstances.

Here, the employer contacted the employee to schedule a pre-employment drug screening, which the employer required of all prospective employees after they are offered a position and before starting work. The test was postponed until after employment began at the employee’s request. The employee then completed a “personnel information sheet” on which he indicated he was not “disabled,” and he signed a drug testing consent form and disclosed for the first time that he had “chronic back pain” and had been “prescribed” marijuana to treat his condition.

Importantly, the employee did not provide any details or documentation to substantiate the nature of his condition or to explain any limitations on his ability to perform his job. The employee forwarded Human Resources his medical marijuana card (which he obtained after he learned of the impending drug test), took the required drug test, and tested positive for marijuana. His employment was then terminated based on the results of the drug test. In response, the employee filed a lawsuit for retaliation and disability discrimination under the California Fair Employment and Housing Act (“FEHA”) as well as claims for wrongful termination, failure to accommodate a disability, and failure to engage in the interactive process.

Judge John W. Holcomb granted the employer’s summary judgment motion and ruled that the employee failed to establish he suffered from a disability given the lack of detail or documentation submitted to the employer. The Court held that chronic back pain “without more” does not qualify as a disability under FEHA and that “an employer does not have to accept an employee’s subjective belief that he is disabled.” Regardless, the employer established a legitimate, nondiscriminatory reason for the employee’s termination (i.e., the failed drug test), and it was under no obligation to engage in the interactive process before the employee passed the test.

Relying upon Pilkington Barnes Hind v. Superior Court, 66 Cal. App. 4th 28 (1998), the Court further concluded that the employee could not rely upon his own delay in submitting to the drug test to argue that he was no longer an applicant at the time of the test, thus giving him greater privacy rights as an employee.

A U.S. District Court recently dismissed the lawsuit of a former employee who claimed disability discrimination after he was terminated for testing positive for marijuana in a pre-employment drug test. Espindola v. Wismettac Asian Foods, Inc., Case 2:20-cv-03702 (C.D. Cal. Apr. 28, 2021). The Court held that an employer can condition an offer of employment on passing a pre-employment drug screening, including a test for marijuana (the recreational use of which has been legal in California since 2018). The Court further held that an employer does not have any obligation to engage in the interactive process before terminating an employee under such circumstances.

Here, the employer contacted the employee to schedule a pre-employment drug screening, which the employer required of all prospective employees after they are offered a position and before starting work. The test was postponed until after employment began at the employee’s request. The employee then completed a “personnel information sheet” on which he indicated he was not “disabled,” and he signed a drug testing consent form and disclosed for the first time that he had “chronic back pain” and had been “prescribed” marijuana to treat his condition.

Importantly, the employee did not provide any details or documentation to substantiate the nature of his condition or to explain any limitations on his ability to perform his job. The employee forwarded Human Resources his medical marijuana card (which he obtained after he learned of the impending drug test), took the required drug test, and tested positive for marijuana. His employment was then terminated based on the results of the drug test. In response, the employee filed a lawsuit for retaliation and disability discrimination under the California Fair Employment and Housing Act (“FEHA”) as well as claims for wrongful termination, failure to accommodate a disability, and failure to engage in the interactive process.

Judge John W. Holcomb granted the employer’s summary judgment motion and ruled that the employee failed to establish he suffered from a disability given the lack of detail or documentation submitted to the employer. The Court held that chronic back pain “without more” does not qualify as a disability under FEHA and that “an employer does not have to accept an employee’s subjective belief that he is disabled.” Regardless, the employer established a legitimate, nondiscriminatory reason for the employee’s termination (i.e., the failed drug test), and it was under no obligation to engage in the interactive process before the employee passed the test.

Relying upon Pilkington Barnes Hind v. Superior Court, 66 Cal. App. 4th 28 (1998), the Court further concluded that the employee could not rely upon his own delay in submitting to the drug test to argue that he was no longer an applicant at the time of the test, thus giving him greater privacy rights as an employee.
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Pennsylvania Appeals Court Determines State’s Medical Marijuana Act Includes A Private Right Of Action For Employees
In a case of first impression, the Superior Court of Pennsylvania has determined that employees can sue their employers for claims under the Pennsylvania Medical Marijuana Act (MMA). Palmiter v. Commonwealth Health Sys., Inc., No. 398 MDA 2020, 2021 PA Super. 155 (Pa. Super. Ct. Aug. 5, 2021). This is the first binding opinion in Pennsylvania establishing an MMA private right of action. In doing so, the court followed the lead of numerous courts around the country, including those in Arizona, Connecticut, Delaware, and Rhode Island, which have recognized that their respective state medical marijuana laws allow employees to sue their employers.1

The Pennsylvania Medical Marijuana Act
In addition to allowing qualifying patients to obtain and use medical marijuana, the MMA includes certain protections for employees certified to use medical marijuana. Specifically, it prohibits employers from “discharg[ing], threaten[ing], refus[ing] to hire or otherwise discriminat[ing] against an employee…solely on the basis of such an employee’s status as an individual who is certified to use medical marijuana.” The MMA does not explicitly state, however, that employees may sue their employers for violations of the MMA.

Palmiter v. Commonwealth Health Systems
In the Palmiter case, an employee working as a medical assistant filed a lawsuit in the Court of Common Pleas of Lackawanna County (the trial court) against her employer after she was fired for testing positive for marijuana on an employer-directed drug test. Palmiter v. Commonwealth Health Sys., Inc., 19-CV-1315 (Lackawanna County Nov. 22, 2019). The employee asserted multiple claims, including a claim under the MMA and a claim for common law wrongful termination in violation of public policy. The employer filed preliminary objections, asserting there was no private right of action under the MMA and no clear public policy underlying the employee’s claims. The trial court disagreed, and the employer appealed to the Superior Court of Pennsylvania.

Trial Court’s Decision Upheld
The Superior Court of Pennsylvania affirmed the trial court’s decision, holding there is an implied private right of action under the MMA. The court rejected the employer’s argument that the Pennsylvania Legislature did not intend to create a private right of action for employees because it delegated enforcement to the Pennsylvania Department of Health. In reaching this decision, the court found that because the Department’s enforcement authority was not exclusive and did not provide a complaint procedure for aggrieved employees, the delegation of some enforcement authority to the Department did not evidence legislative intent against a private right of action.

Instead, the court held that by enacting the MMA, the Pennsylvania Legislature proclaimed a public policy prohibiting discrimination based on medical marijuana use. Applying principles of statutory interpretation, the court determined that even though the legislature did not do so explicitly, it intended to create a private right of action for employees who are discriminated against by their employers based on their status as certified medical marijuana users.

Regarding the wrongful discharge claim, the court determined that the MMA “evidences a clear public policy against termination of employment and other types of discrimination based on certified marijuana use off the employment premises.” Accordingly, the court determined that employees can also assert claims for wrongful termination in violation of public policy for termination for off-premises medical marijuana use.

Employer Takeaways
Palmiter is a significant decision because it affirmatively states that there is a private right of action under the MMA. It also confirms that an employee can bring a wrongful termination claim when an employer terminates their employment—or possibly even when an employer fails to hire them—due to their off-premises use of medical marijuana, even when adverse action is based on a positive workplace marijuana test result.

It is still unclear what damages are available under the MMA, but the trial court in Palmiter implied that back pay and front pay would be available to successful litigants. Additionally, punitive damages are available for wrongful termination claims in Pennsylvania, increasing an employer’s potential liability. Following Palmiter, Pennsylvania employers should carefully evaluate how they accommodate medical marijuana users in the workplace and their drug-testing policies.

Regarding the latter, as those evaluations proceed, it bears emphasis what Palmiter did not address, namely, the various safe harbors built into the MMA for employers including:

  • employers need not accommodate medical marijuana use on the property or premises of employment;
  • the MMA in no way limits an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position;
  • the MMA does not require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law (e.g., mandatory U.S. Department of Transportation drug-testing regulations);
  • an employer may prohibit a medical marijuana patient from performing any task the employer deems life-threatening to either the patient-employee or to any other of its employees, while the patient is under the influence of medical marijuana; and,
  • an employer may prohibit a patient from performing any duty that could result in a public health or safety risk while under the influence of medical marijuana.

Other potential issues that employers must grapple with include whether the job involves regular driving (the DUI THC level in Pennsylvania involves any detectible level) or whether the worker would have access to controlled substances, in which case DEA regulations may apply.

The contours of a meritorious claim under Palmiter thus remain to be decided. However, the days when a simple federal illegality policy sufficed and no private cause of action was available to the plaintiff are presently foreclosed by the appellate court’s decision. Further, while it can be difficult to obtain review by the Pennsylvania Supreme Court, it is likely that it will eventually weigh in on this important issue.
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Jury Returns Verdict Of $1 Billion In Negligent Hiring Case Against Trucking Firms
On August 20, 2021, a jury in a civil trial returned a verdict of $1 billion in a negligent hiring case after a trucking company hired “a dangerous driver” and “did little to nothing toward safety and background checks before letting their driver behind the wheel,” according to a news report from WJXT News4Jax in Jacksonville, Florida.

After five days of testimony in the civil trial, a jury in Nassau County awarded $900 million for punitive damages and $100 million for pain and suffering to the parents of an 18-year-old man who was stopped in traffic from a semi-trailer truck crash when another truck hit him from behind and killed him, WJXT News4Jax reported.

The attorney for the parents blamed two trucking companies, saying the semi driver was “driving over his legal limit of hours and without a commercial driver’s license when he caused the crash that blocked the interstate” while the other truck driver “was going 70 mph on cruise control when he slammed into stopped traffic.”

WJXT News4Jax reported that the attorney for the parents said the crash “was the result of distracted driving and illegal trucking practices.” News4Jax reached out to the two companies involved in the lawsuit—which have not paid out the sums ordered and remain in business—but received no comment and no answer.

 

International Developments

With Amazon Fine, Luxembourg Emerges As Europe’s Unlikely Privacy Champion
Luxembourg’s €746 million fine is by far the highest under Europe’s data protection rules.

More than three years since the EU’s General Data Protection Regulation came online, the hefty fines it promised are finally materializing.

In financial filings out Friday, tech giant Amazon said the Grand Duchy had fined it a record €746 million after finding that the way the e-commerce giant handles people’s personal information falls afoul of Europe’s strict privacy code. The figure is the highest ever levied under the code, way ahead of France’s €50 million penalty for Google, the second-highest, and sees Luxembourg emerge as Europe’s unlikely new privacy sheriff. The tiny, tax-light country has long been accused of being soft on the corporations that make it their home. In light of a POLITICO investigation in February that revealed evidence of data protection lapses at Amazon, an official at the regulator maintained that big penalties were not the way to go. Viviane Reding, an opposition MP in the country and a former EU commissioner who was chief architect of the GDPR, had raised questions about the way the regulator handles privacy complaints, while the clamor of voices criticizing the watchdog grew.

But the record sum for a U.S. heavyweight has thrust Luxembourg to the front line of Europe’s war on Big Tech. In doing so, it asks tough questions of Ireland, which regulates the lion’s share of Silicon Valley companies. So far, Dublin has mustered just a single fine against their ranks: a €450,000 penalty for Twitter.

“This historic sanction highlights even more the complete abdication of the Irish data protection authority which, in three years, has not been able to wrap up any of the other four complaints we have brought against Facebook, Apple, Microsoft and Google,” said French NGO La Quadrature du Net, whose complaint led to Luxembourg’s Amazon fine.

With the mega fine, Luxembourg could even supplant France as Europe’s toughest privacy enforcer. “The exemplary posture of the Luxembourg authority is also a cold shower for the CNIL [France’s data enforcer] in France which, for a long time, was a leader in Europe for data protection. Today, the CNIL is no more than a shadow of itself,” the French NGO added.

Luxembourg also seems to have dodged much of the bureaucratic wrangling that has thwarted Europe’s privacy enforcers against Big Tech.

The Twitter penalty, for instance, only materialized after Ireland was forced to trigger a formal mechanism to resolve disputes between Europe’s regulators, some of whom complained that the figure proposed by the Irish was too low. Ireland’s second Big Tech decision—a possible €50 million fine for WhatsApp—is embroiled in a similar tussle.

Luxembourg’s Amazon fine, however, faced a much smoother ride.

Luxembourg’s initial proposal, reported at around €360 million, was far lower than the figure eventually meted out, but it still managed to finalize the decision without resorting to formal dispute resolution mechanisms.

Luxembourg’s relatively smooth process throws doubt on Ireland’s claims that it is the European enforcement mechanism—known as the one-stop-shop—rather than its own actions that result in enforcement bottlenecks.

But Ireland’s caution may have its benefits.

Amazon has already said it intends to defend itself against Luxembourg’s decision “vigorously,” and said Luxembourg’s fine was predicated on “subjective and untested interpretations of European privacy law,” that are “entirely out of proportion.”

Company lawyers will already be sharpening legal arguments to pick holes in the regulator’s reasoning and may fancy their chances in a legal system that leans in favor of corporate interests.

If Amazon does manage to claw back the fine, it wouldn’t be the first embarrassing setback suffered by Europe’s GDPR enforcers.

Britain’s data protection regulator had two three-figure fines for British Airways and Marriott slashed by 80 percent after the companies fought against it, while Germany’s courts have cut down multi-million-euro fines issued by the country’s privacy watchdogs.

Given the fine’s size and the target being none another than Amazon, a similar setback for Luxembourg would be a much more bitter pill to swallow.
https://www.politico.eu/article/amazon-fine-luxembourg-europe-privacy-champion/

 

Other Developments

Thanks For Interviewing With Us—Are You Vaccinated?
Question: In interviews with prospective employees, can we ask about their COVID-19 vaccination status?

Answer: Generally speaking, you can ask prospective employees about their vaccination status when interviewing them, but there are some attendant risks to doing so.

Under the Americans with Disabilities Act (ADA), you may not ask applicants questions that are likely to reveal the existence of a disability before making a job offer. The Equal Employment Opportunity Commission (EEOC) has, however, clarified in recent guidance that simply asking about COVID-19 vaccination status alone is permissible because it isn’t likely to elicit information concerning a disability since there are any number of reasons why a prospective employee may not be vaccinated.

Any follow-up questions regarding vaccination status, however, may reveal the applicant hasn’t received the vaccine because of a disability or, perhaps, for religious objections, and any such questions must be job-related and consistent with business necessity. Further, “screening out” job applicants based on vaccination status can be risky because they could allege, they were discriminated against based on a disability under the ADA or sincerely-held religious beliefs under Title VII of the Civil Rights Act.

Additionally, requiring written proof of vaccination status is permissible, but such records are treated as confidential medical records under the ADA.

Last, if you ultimately decide to make vaccinations mandatory as a condition of employment, you should say so in any job descriptions so applicants have the opportunity to request a reasonable accommodation for a disability and/or religious beliefs.
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