January 2022 Screening Compliance Update

FEDERAL DEVELOPMENTS

Ban the Box: Federal Government Adopts Fair Hiring Practice

The federal government became the most recent employer to adopt a “Ban the Box” policy when The Fair Chance to Compete for Jobs Act became effective December 20, 2021. The law prohibits federal contractors and most federal agencies from inquiring into an candidate’s criminal history—including arrests and convictions—prior to making a conditional job offer. Therefore, federal contractors should review their applications and hiring practices to ensure they are complying with the recently-enacted law.

Generally, the purpose of Ban the Box is to give ex-offenders a second chance and reduce recidivism rates. Thirty-seven states and more than 150 localities have adopted some form of Ban the Box legislation, meaning over 75% of the U.S. population lives in a Ban the Box jurisdiction. However, because there is no uniform policy, the details of each jurisdiction’s policy varies. For example, only 15 states and 22 localities extend their Ban the Box law to private employers. In addition, enforcement for violations differ in jurisdictions, ranging from fines to a private right of action.

There are certain key exceptions to Ban the Box laws. First, although an employer may be barred from asking about criminal history on an application or in an interview, the candidate may volunteer the information themselves. Under those circumstances, the employer generally may use it in a decision not to hire. Next, certain jobs or questions are exempt from Ban the Box. For example, if an candidate’s criminal history has a direct bearing on the job they’re seeking—i.e., a person with a securities fraud conviction applies for a job as a stock broker—an employer may be permitted to consider this information. However, these exceptions may vary by jurisdiction.

The Fair Chance to Compete for Jobs Act prohibits federal agencies and contractors (both defense and civilian) from requiring candidates to disclose “criminal history record information” prior to extending a conditional offer to the candidate. “Criminal history record information” is defined broadly and includes arrests, indictments, information, formal criminal charges, sentencing, information collected by a criminal justice agency, and information relating to an act or alleged act of juvenile delinquency. Three types of positions are exempt from the new federal law: (1) positions related to law enforcement and national security duties; (2) positions requiring access to classified information; and (3) positions for which it is already required by law to access criminal history information before the conditional offer stage.

With respect to enforcement and penalties, an employer’s first violation results in a written warning that includes a description of the violation and the additional penalties that may apply for subsequent violations. Following notice and an opportunity to be heard, the Fair Chance Act allows for suspensions and escalating fines up to $1,000 for subsequent violations. Finally, the law directs the Office of Personnel Management (OPM) and General Services Administration (GSA) to issue implementing regulations—so more detailed guidance will likely be available in the near future.

Employers should also be mindful of the Equal Employment Opportunity Commission’s guidance when considering arrest and conviction records in employment decisions to avoid disparate impact discrimination claims. In addition, employers should consult their employment counsel to ensure their job application, interview process, and employment policies comply with the law in jurisdictions with “Ban the Box” laws – whether it be the Fair Chance to Compete for Jobs Act or the applicable local and/or state law. Click Here to read more.

Supreme Court nixes OSHA vaccine-or-test mandate but okays healthcare worker vaccine mandate

The Supreme Court has blocked a Biden administration rule relating to COVID-19 vaccine requirements, while allowing another to take effect. The now-blocked rule, issued by the Occupational Safety and Health Administration (OSHA), was a “vaccine or test” mandate: it applied to employers with 100+ workers, and it would have required employees to either be fully vaccinated against COVID-19 or be tested weekly and wear masks at work. The now-enforceable rule, issued by the Department of Health and Human Services (HHS), is a vaccine mandate: it applies to healthcare workers at facilities participating in Medicare and Medicaid, and it requires them to be fully vaccinated against COVID-19.

On January 13, 2022, in per curiam opinions (meaning that no single Justice is listed as the author), the Court stayed OSHA’s vaccine-or-test mandate by a 6-3 vote but lifted lower-court injunctions on HHS’s healthcare-worker vaccine mandate by a 5-4 vote. The opinions came less than a week after the Court heard oral argument in the cases on January 7.

In the OSHA vaccine-or-test mandate case, National Federation of Independent Business v. Department of Labor (No. 21A244), the Court held that challengers to the rule are likely to succeed on the merits because OSHA’s authority extends only to “workplace safety standards, not broad public health measures.” The Court concluded “OSHA’s indiscriminate approach” did not “account for this crucial distinction—between occupational risk and risk more generally.” Justice Gorsuch, joined by Justices Thomas and Alito, wrote a concurring opinion emphasizing that OSHA’s rule failed under the “major questions doctrine,” which requires Congress to speak clearly when authorizing administrative agency action of vast economic and political significance. Justice Breyer, Justice Sotomayor, and Justice Kagan issued a joint dissent. In their view, the Court’s decision “undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”

In the HHS healthcare-worker vaccine mandate, Biden v. Missouri (No. 21A240), the Court held that the “rule falls within the authorities that Congress has conferred upon” the agency. While noting that “[t]he challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it,” the Court reasoned that “unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.” Justice Thomas (joined by Justices Alito, Gorsuch, and Barrett) dissented, expressing doubt that the statutes that the agency invoked create “broad vaccine-mandating authority.” Justice Alito (joined by Justices Thomas, Gorsuch, and Barrett) issued a separate dissenting opinion, stating that the agency improperly bypassed notice-and-comment procedures in promulgating the rule.

These cases had been fast-tracked to the Supreme Court. Shortly after the rules were announced, challenges poured in from States, businesses, and others. The Fifth Circuit initially stayed the OSHA vaccine-or-test mandate, but then the Sixth Circuit reinstated the mandate after the cases were transferred there. And in the HHS healthcare-worker vaccine mandate case, a federal district court enjoined the mandate. Both sets of cases then came to the Court in mid-December as emergency applications for stays of those lower-court orders (rather than as ordinary petitions for certiorari). That put the cases on the Court’s so-called “shadow docket” of emergency applications, which has proliferated in recent years. “Shadow docket” cases often call on the Court to decide important issues without full briefing and argument. In these COVID vaccine cases, however, the Court took the unusual step of holding oral argument on an expedited basis. And it issued its decisions less than a month after the applications were filed—far quicker than the months-long process for deciding ordinary cases that come as petitions for certiorari.

Significance

What does this mean for employers? Employers should revisit their COVID-19 policies and procedures in light of the Supreme Court’s ruling. Without the OSHA vaccine-or-test mandate in place and Executive Order 14042 still currently in legal limbo, most employers will not have to comply with federal COVID-19 safety requirements, other than healthcare providers covered by the HHS rule and federal contractors with employees working onsite at government facilities. During the Supreme Court argument, the Biden administration’s lawyer noted that HHS had issued guidance giving regulated entities time to come into compliance and emphasized that the agency “has always exercised enforcement discretion,” taking into account the “access to care issues” raised by the rule’s challengers, such as staffing shortages.

At bottom, these cases were about the ability of the federal government to require certain policies. Without a federal mandate, businesses will have to navigate the patchwork of state and local COVID-19 requirements. On the one hand, a number of states have issued their own COVID-19 safety protocols. For example, last month New York City issued a requirement that all employees working onsite in New York City had to be vaccinated, subject to limited exceptions. A number of other jurisdictions, such as Alabama, Florida, Tennessee, and Texas, have gone the other way, passing laws prohibiting employers from requiring employees to get vaccinated. Businesses should be mindful of these laws as they consider their COVID-19 strategies and protocols going forward. Click Here to red more.

OSHA Announces Withdrawal of COVID-19 Vaccination and Testing ETS

On Tuesday, January 25, 2022, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced it is withdrawing the emergency temporary standard (“ETS”) issued on November 5, 2021. As discussed in prior legal alerts, the ETS required that workers of employers with 100 or more employees be vaccinated against COVID-19 or be tested weekly, among other requirements.

OSHA’s announcement comes in the wake of the U.S. Supreme Court’s ruling that OSHA could not enforce the standard while the Sixth Circuit Court of Appeals evaluated the rule’s legality. Once OSHA announced it would withdraw the ETS, OSHA’s lawyers moved to dismiss the legal challenge to the ETS before the Sixth Circuit, stating that the announced withdrawal has mooted the legal challenge, which was brought by several majority-Republican states. Notably, in its January 25, 2022 announcement, OSHA indicated it would pursue adoption of vaccination and testing standards through formal rule-making. Click Here to read more from Lexology.

 Ban the Box Hiring Law Now Applies to US Federal Contracts

Federal contractors no longer can inquire about an candidate’s criminal history before extending a conditional job offer to work on a government contract, a new prohibition that stems from a Trump-era defense policy law.

The restriction, tucked into the National Defense Authorization Act for Fiscal 2020, took effect Dec. 20, and a proposed rule that could guide compliance is expected to be released in coming days.

Attorneys who represent companies that do business with the federal government said the “ban the box” law won’t require major changes for many contractors because they already navigate a patchwork of similar state laws across the U.S.

“It’s just a lot easier, from an administrative standpoint, to go ahead and make that standard practice,” said Olaoluwaposi Oshinowo, special counsel with Wiley Rein LLP. “There shouldn’t be a heavy lift for most federal contractors to comply here.”

At least 16 states bar most employers from requiring job candidates to disclose a criminal record before a job offer has been extended, with some carveouts, according to a review of Bloomberg Law data. Many localities do the same. Several other states have similar laws on the books, and others prohibit inquiries about sealed or expunged criminal records.

Yet in the absence of a regulation covering compliance questions, federal contractors still face uncertainty about how and when the law will be enforced and exactly which kinds of job openings could be exempt.

A draft report reflecting a proposed rule to amend the Federal Acquisition Regulation is slated for release by Jan. 5, according to an online listing and a spokesperson for the U.S. General Services Administration. The proposal will be subject to public comment and followed by a final rule, the spokesperson said.

Federal contractors employ about 25% of the country’s workforce, though many are likely already subject to some form of a “ban the box” law on the state or local level and won’t view the federal statute as a new development, said Lisa Lupion, a partner with Orrick Herrington & Sutcliffe LLP. Click Here to read more from Bloomberglaw.

CDC Shortens Recommended COVID-19 Isolation and Quarantine Periods

On December 27, 2021, the Centers for Disease Control and Prevention (CDC) announced an update to its isolation and quarantine guidance. Although the CDC’s update shortens both the isolation and quarantine periods, as described more fully below, the changes largely affect only asymptomatic individuals. Moreover, because local guidance may differ from the CDC’s recommendations, employers should keep in mind all applicable state and local requirements when deciding whether to amend their own rules.

Isolation

An individual should isolate when they have tested positive for COVID-19 or are experiencing symptoms of the virus. The CDC now recommends that individuals who test positive for COVID-19 remain home for 5 days, regardless of vaccination status. If the individual is asymptomatic, or symptoms are resolving after those 5 days, the individual may leave isolation. The individual, however, should continue to wear a mask when around others for 5 additional days.

Quarantine

An individual should quarantine when they have been in “close contact” with someone who has COVID-19, which means being within 6 feet of that individual for a cumulative total of 15 minutes or more over a 24-hour period. The CDC’s revised quarantine recommendations largely depend on an individual’s vaccination status.

Specifically:

• The following individuals do not need to quarantine if they are asymptomatic; rather, they should wear a mask around others for 10 days and test on day 5, if possible:
  • Those who have received a COVID-19 booster;
  • Those who have received their Pfizer or Moderna COVID-19 vaccinations within the last 6 months; and
  • Those who have received the Johnson & Johnson (J&J) vaccine within the last 2 months.

• The following individuals should (i) stay home for 5 days, after which they should continue to wear a mask around others for an additional 5 days; or (ii) if the individual cannot quarantine, they should wear a mask for a full 10 days. Either way, they should test on day 5 if possible.
  • Those who are unvaccinated;
  • Those who have completed their Pfizer or Moderna COVID-19 vaccine series more than 6 months ago and are not boosted; and
  • Those who have completed their J&J vaccine more than 2 months ago and are not boosted.

The CDC recommends that anyone who develops symptoms get tested and stay at home. The CDC, however, does not require an individual to produce a negative test in order to end isolation or quarantine.

What the Changes Mean

Many states are beginning to revise their recommendations in light of the CDC’s changes, but employers should continue to monitor their local jurisdictions’ guidelines as well when deciding whether and when to change rules regarding quarantine periods. Further, The CDC’s new recommendations may be a signal that the agency is planning to modify the definition of “fully vaccinated” to include COVID-19 booster injections, since its present guidance turns on individuals’ booster status. Click Here to read more from Lexology.

CDC Provides Guidance to Employers on Marijuana Use by Employee Drivers

The National Institute of Occupational Safety and Health (NIOSH), a division of the Centers for Disease Control and Prevention (CDC), recently issued guidance to employers on marijuana and workplace motor vehicle safety programs. Noting the increase in state laws legalizing medical and recreational use of marijuana, as well as the impact on a driver’s cognitive abilities, NIOSH offers the following “best practices” for employers:

• Develop a comprehensive marijuana policy that accounts for applicable state laws.
• If a zero-tolerance policy for marijuana is not possible, the policy should still prohibit the use or being under the influence of marijuana while at work.
• Partner with a knowledgeable attorney to review the policy and provide feedback.
• If drug testing is part of the policy, outline specifics to include: when testing will occur, the threshold for impairment, consequences of a positive test, and the use of a trained medical professional to interpret test results.
• In addition, NIOSH encourages employers to inform employees that cannabidiol product labeling is not regulated and is frequently inaccurate, meaning that the use of CBD products could result in a positive test for marijuana use.
• Provide access to support for employees with drug problems, either through in-house programs or referrals to local resources.
• Educate drivers on: the effects of marijuana and other drugs on safe driving and cognitive abilities; the company’s marijuana policy (tailored for applicable state laws); and similar impairments that can result from fatigue, medications, and certain medical conditions.
• Train managers and supervisors on their responsibilities under the policy, as well as how to recognize and document signs of impairment.
• Monitor the relevant state marijuana laws and any improved methods for determining impairment. Update policies as needed
• Read more from Lexology.

STATE DEVELOPMENTS

New York City Enhances Regulation of Automated Employment Decision Tools

A first-of-its-kind New York City law, due to take effect in January 2023, will require employers in New York City who use automated tools for making employment-related decisions to conduct yearly bias audits for the tool and make the results of the most recent bias audit publicly available on their website. They also will be required to provide job candidates prior notice regarding the use of the automated tool, information about the job qualifications and characteristics that the automated tool assesses, the types of data collected and the sources from which it is collected, and the employer’s retention policy.

The law broadly defines “automated employment decision tool” to include “any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence, that issues simplified output, including a score, classification, or recommendation, that is used to substantially assist or replace discretionary decision making for making employment decisions”. The law does not ban the use of automated tools that are biased, as long as the employer conducts periodic audits and publishes the audit results.

The law’s requirement for prior notice to candidates is meant to allow candidates to request an alternative selection process. However, the law does not state whether the employer must accept such requests, or under what circumstances, if at all, the employer may decline them. Violations of the law can attract civil penalties of up to $1,500 per violation. Read more from Lexology.  To Read the Law: https://aboutblaw.com/0vz

Mayor-Elect Eric Adams Plans to Enforce New York City’s Private Employer Vaccine Mandate

Mayor-elect Eric Adams has announced that he plans to keep New York City’s vaccine mandate in place once he takes office. Mayor-elect Adams, who is set to be sworn in as the City’s 110th mayor shortly after midnight on January 1, 2022, explained that his Winter 2022 COVID Plan will revolve around six “pillars,” including that the private sector mandate will remain in effect “with a focus on compliance, not punishment.” This is not markedly different from the approach taken by the current administration, which explained in recent interpretive guidance covering the mandate that the City intends on working with businesses to achieve compliance to avoid fines and penalties. While these sentiments might signal some willingness on the part of both administrations to give businesses flexibility in coming into compliance, they do not alter the concrete deadlines and requirements placed on employers by the mandate, which we covered here, and as we explained here, will remain effective regardless of whether OSHA’s vaccine or test rule is enforceable. Click Here to read more from Lexology.

New York State’s Updated Interim Isolation and Quarantine Guidance

On January 4, 2022, the New York State Department of Health (“NYSDOH”) released interim updated isolation and quarantine guidance for the general population (the “Interim Guidance”). Previous guidance by the NYSDOH issued on December 24, 2021, allowed for shorter isolation periods for healthcare workers and essential workers. Now, in alignment with updated CDC recommendations, the Interim Guidance allows for shortened isolation and quarantine requirements for the general population.

The Interim Guidance makes the following recommendations regarding isolation:

• Isolate for 5 days, where day 0 is the day of symptom onset or (if asymptomatic) the day of collection of the first positive specimen.
• If asymptomatic at the end of 5 days or if symptoms are resolving, isolation ends and the individual should wear a well-fitting mask while around others for an additional 5 days.
• Individuals who are moderately-severely immunocompromised should continue to follow standard (i.e., not shortened) Isolation Guidance.
• Individuals who are unable to wear a well-fitting mask for 5 days after a 5-day isolation should also follow standard (i.e., not shortened) Isolation Guidance.

The Interim Guidance makes the following recommendations regarding quarantine for individuals who were exposed to COVID-19, where day 0 is the last date of exposure:

• If not fully vaccinated or fully vaccinated and eligible for a booster but not yet boosted, quarantine for 5 days and wear a well-fitting mask while around others for an additional 5 days.
• If fully vaccinated and boosted (with the booster at least 2 weeks before the first date of exposure) or not yet eligible for a booster, no quarantine is required but these individuals should wear a well-fitting mask while around others for 10 days after the last date of exposure.
• If possible, test at day 5 with either a nucleic acid amplification test (NAAT, e.g., PCR) or antigen test.
• If symptoms appear, quarantine and seek testing. In this situation, quarantine would end when the test is negative. If testing is not done, isolate according to the guidance above.

The CDC is expected to release additional guidance for schools and congregate care settings in the coming days. Until then, schools and non-healthcare congregate care settings should continue to follow local health department guidance. If there is no local health department guidance, schools should follow current New York State school guidance regarding school attendance; non-healthcare congregate care settings should follow standard (i.e., not shortened) guidance for return-to-work for infected or exposed personnel unless there is a staff shortage. If there is a staff shortage in a nonhealthcare congregate care setting, meaning there is an inability to provide essential services as determined by the entity, it may follow the shortened timeframes of the Interim Guidance. Click Here to read more from Lexology.

Employer Obligations Under New York’s HERO Act Extended Through February 15, 2022

On Saturday, January 15, 2022, the New York State Department of Health (NYSDOH) extended its designation of COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health through February 15, 2022. (A copy of the NYSDOH’s press release can be found here.) Accordingly, all employers must continue to administer and enforce their airborne infectious disease prevention plans.

On or before February 15, 2022, the NYSDOH Commissioner will review the level of transmission of COVID-19 in the state and determine whether to continue the designation. As detailed in our prior advisories, the NYSDOL issued guidance and FAQs detailing employer obligations under the HERO Act, which were triggered on September 6, 2021, and updated its Model Airborne Infectious Disease Exposure Prevention Plan to address face coverings in fully vaccinated workplaces. Click Here to read more from Lexology.

New Year Connecticut Employment Laws

Although 2021 is a wrap, there are new Connecticut laws for employers to unwrap in 2022. We have summarized the key changes to Connecticut employment law that employers should be aware of, including some that are just going into effect and others that have been put into place over the past year.

Wage Range Disclosure Law

Effective October 1, 2021, Connecticut employers are required to disclose the wage range for vacant positions to both job candidates and existing employees. Employers must provide an candidate for employment the wage range for a position for which the candidate is applying upon the earlier of (a) the candidate’s request or (b) when the candidate receives an offer of compensation. Employers must provide an employee the wage range for the employee’s position upon (a) the hiring of the employee, (b) a change in the employee’s position or (c) the employee’s first request for a wage range. The statute specifies that when determining the wage range for a position, employers “may include reference to any applicable pay scale, previously determined range of wages for the position, actual range of wages for those employees currently holding comparable positions or the employer’s budgeted amount for the position.” The wage range statute also expands the prohibition against sex-based compensation decisions by prohibiting employers from paying workers less than the employer pays employees of the opposite sex for “comparable” work. Previously, the prohibition applied only to pay disparities for “equal” work. The statute may be found here. The Connecticut Department of Labor’s guidance regarding the wage range disclosure law may be found here.

Age Discrimination in Employment Applications

Public Act 21-69, effective October 1, 2021, makes it discriminatory conduct under the Connecticut Fair Employment Practices Act for employers to include questions on an initial employment application that would disclose an candidate’s age, unless age is a bona fide occupational qualification or such information is required to comply with state or federal law. Employers that have not done so already should update their initial employment applications to remove any questions regarding age, date of birth and dates of attendance at or graduation from an educational institution.

Legalization of Recreational Marijuana

On June 22, 2021, Connecticut enacted the Responsible and Equitable Regulation of Adult-Use Cannabis Act, legalizing the recreational use of cannabis in Connecticut. This law contains several provisions that will become effective July 1, 2022, and will impact employers. Some of the key employment-related provisions under the new law are the following:

• Employers may continue to prohibit employees from working under the influence of cannabis, or from possessing or using cannabis while performing their work duties or on their employer’s premises. Any such policy must be maintained in writing (in physical or electronic form).
• Employers generally are prohibited from taking adverse action against an employee or prospective employee based on the individual’s use of cannabis outside of the workplace before such employee or prospective employee became employed, unless doing so would cause the employer to violate a federal contract or lose federal funding.
• Employers may take adverse employment action based on a positive cannabis drug test result under certain circumstances, provided that the employer maintains an established drug testing policy making clear that a positive test may result in adverse employment action.
• Employers may continue to conduct workplace drug testing in accordance with Connecticut law. Specifically, employers may take adverse employment action when they have (i) a reasonable suspicion of an employee’s use of cannabis while performing work duties or on call, or (ii) they determine that an employee manifests “specific, articulable symptoms of drug impairment while working at the workplace or on call that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position.” The new law outlines what symptoms may evidence impairment.

Employers in a number of industries are exempt from the employment-related provisions. Likewise, employees in certain positions are not entitled to the protections under the new law. Click Here to read more from Lexology.

Harris County (Texas) Will no Longer Ask About Criminal Histories on County Job Applications

Harris County leaders on Tuesday adopted a policy that will ban most county departments from asking about a job candidate’s criminal history.

County Attorney Christian Menefee — who proposed the program — called this “banning the box,” a reference to the box on county employment applications where candidates must check whether they have a criminal record.

Menefee said the question of a criminal record frequently discourages many otherwise-qualified job seekers from even applying since some potential employers immediately discard candidates with non-violent criminal records.

“It will prohibit departments from considering an candidate’s record of arrest if that arrest did not result in a conviction, or if it did and it was expunged or sealed, or it’s a misdemeanor for which no jail time can be sentenced,” Menefee said.

The policy will allow departments to do a criminal background check and consider that check only after a conditional offer of employment has been made. Menefee said that when the background check is done later in the process, potential employers are more likely to consider the context of the candidate’s record, as well as their relevant skills and experience.

“The policy will prohibit blanket disqualification of candidates solely because they have a conviction,” Menefee said. “Instead, what it’s going to call for is an individualized assessment of various factors, including what was the nature of the offense. What is the position that the candidate is applying for?”

The policy only applies to departments led by county appointees, not elected officials, though elected officials are free to adopt it within their own offices. It also includes exceptions for jobs in law enforcement and other sensitive areas.

The measure passed commissioners court by 3-2 on a party-line vote.

“The significance of this is not new,” Harris County Judge Lina Hidalgo. “There have been about 20 years of research on this…It’s not that you don’t ask about the background. It’s that when you put the box up front, people just don’t apply.”

County Attorney Menefee stressed that the policy, which he called the Fair Chance Policy, has been adopted by governors of both parties in 37 states and in more than 150 cities and counties around the country. He argued that the policy was ultimately a public safety measure.

“This policy is also about decreasing recidivism,” Menefee said. “We know that the number one factor for decreasing recidivism amongst ex-offenders is ensuring that they are able to obtain and maintain stable employment.”

That argument was a hard sell for the court’s two Republican members. Commissioner Tom Ramsey said he understood the spirit of the policy, but emphasized the importance of providing a safe workplace for county employees.

“I think of the 15,000-plus Harris County employees that depend on us to provide a safe workplace,” he said. “To say you can’t know or ask that question before you decide to hire (a candidate), I think that could have some unintended consequences.”

Democratic Commissioner Adrian Garcia spoke favorably of the policy, referring to job fairs held in the Harris County Jail during Garcia’s time as county sheriff. Republican Commissioner Jack Cagle responded that such job fairs were, in fact, an argument against the policy change.

“What you described of job fairs in the jail is full disclosure,” Cagle said, “and I am a firm believer that we need to do everything possible to help those (ex-offenders) to become productive, but I do not believe that less light and not disclosing things promotes the public good will.” Click Here to read more from Houston Public Media.

Cook County, Illinois, COVID-19 Vaccine Order for Certain Indoor Settings Now Effective

The Cook County Department of Public Health (CCDPH) has ordered that all indoor settings where food or drink are served for on-premises consumption and health and fitness centers require proof of COVID-19 vaccination with an approved vaccine from all patrons five years of age or older beginning January 3, 2022.

The Order further provides: “All businesses shall comply with [the OSHA Emergency Temporary Standard] relating to employee vaccination status and testing, regardless of the number of their employees.”

The Cook County Order largely tracks a similar City of Chicago Order, with some key differences. Most significantly, regarding food service establishments, while the City of Chicago Order applies to all “establishments where food or beverages are served,” the Cook County Order applies only to “indoor settings where food or drink are served for on-premises consumption.”

Covered Establishments

The Cook County Order applies to the following establishments:

• Indoor dining establishments, including bars, breweries, wine/spirit tasting rooms, restaurants, private clubs, country clubs, banquet halls, dining areas within any public business that is ancillary to the main business (cafes within grocery stores, other retail, etc.), coffee shops, food courts, and food halls;

• Event spaces, including hotel ballrooms and commercial event and party venues and nightclubs;

• Recreation and entertainment venues in areas where food and beverages are served, including movie theaters, live performance spaces (including live theater and live music), sports arenas, skating rinks, adult entertainment venues, arcades, bowling alleys, play spaces, family entertainment centers, billiard halls, and venues for card playing; and

• All indoor settings for recreation and exercise, including health clubs, gyms, fitness centers, hotel fitness centers, recreation centers, yoga studios, cross-fit studios, cycling studios, dance studios, fieldhouses, boxing and kickboxing gyms, and other facilities conducting group fitness classes indoors.

Covered Patrons

Under the Cook County Order, businesses must require patrons age 16 and older to show identification (including but not limited to a driver’s license, passport, government ID, or work or school ID) with information that corresponds to the patron’s proof of vaccination. Further, businesses may allow patrons to provide the required proof of vaccination prior to entry, either directly to the business itself or through an intermediary, such as an event planner.

Exemptions

The categories of patrons exempted from the Cook County Order’s proof-of-vaccination requirements vary slightly from the exemptions in the City of Chicago Order, which exempts individuals who have previously received a medical or religious exemption, as long as they provide proof of the exemption and a negative COVID-19 test taken within the previous 72 hours. The Cook County Order does not provide a religious exemption for patrons and requires patrons who have previously received a medical exemption to provide proof of a negative COVID-19 test administered by a medical professional within the last 24 hours.

Like the City of Chicago Order, the Cook County Order allows exemptions for certain individuals, including:

1. Individuals entering an establishment for less than 10 minutes for ordering or carrying out food, making a delivery, or using restroom facilities;
2. Nonresident performing artists or nonresident persons accompanying the artist;
3. Nonresident professional athletes or nonresident persons accompanying the athlete;
4. An individual 18 years of age or younger who enters a business subject to the Order to participate in a school activity or after-school program offered by any pre-kindergarten through 12^th grade public or non-public school; and
5. Any person entering a business subject to the Order for the purpose of voting, assisting or accompanying a voter, or observing an election.

Also like the City of Chicago Order, the Cook County Order also exempts certain businesses and indoor venues, including:

1. Houses of worship;
2. K–12 schools, preschools, and childcare centers; and
3. Indoor locations in a residential or office building the use of which is limited to residents, owners, or tenants of that building.

The Cook County Order states that an individual is considered fully vaccinated “[t]wo weeks after their second dose in a 2-dose series with an approved COVID-19 vaccine” or “[t]wo weeks after a single-dose series with an approved COVID-19 vaccine[.]” The City of Chicago Order defines “fully vaccinated” status differently, stating that it is “determined by Centers for Disease Control and Prevention [CDC] guidance or Chicago Department of Public Health posted guidelines, whichever is the most restrictive.” While these definitions are currently functionally the same, the City of Chicago Order is subject to change based on updated guidance from the CDC or Chicago of Department of Public Health.

Like the City of Chicago Order, the Cook County Order requires covered business to post signage advising patrons of the vaccination requirement at all entrances to the premises, as well as prominently post such signage in an area visible to patrons and staff within the establishment.

The Cook County Order also requires businesses to develop a written protocol detailing how they will enforce the Order. The CCDPH has released a template compliance plan and the signage required by the Cook County Order on its website.

The Cook County Order also continues to mandate that any individual aged two and older and able to medically tolerate a mask be required to wear a mask when indoors in a public space, regardless of vaccination status. Click Here to read more from Lexology.

Philadelphia enacts ordinance to prohibit pre-employment marijuana testing

Effective January 1, 2022, Phila. Code § 9-5500 now prohibits Philadelphia employers from requiring job candidates to submit to pre-employment drug tests for marijuana use. Specifically, the ordinance makes it an unlawful employment practice for an employer, labor organization, or employment agency (or agent thereof) to require prospective employees to submit to testing for the presence of marijuana as a condition of employment.

Several categories of candidates are exempt from the law, including: (i) police officers and other law enforcement positions; (ii) positions requiring a commercial driver’s license; (iii) positions requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals; and (iv) positions in which the employee could significantly impact the health or safety of other employees or members of the public, as determined by the enforcement agency.

In addition, the law does not apply where drug testing is required pursuant to:

• any federal or state law, regulation, or order that requires drug testing of prospective employees for “purposes of safety or security;”
• any contract between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant; or
• any candidates whose prospective employer is a party to a valid collective bargaining agreement that “specifically addresses the pre-employment drug testing of candidates.”

The ordinance authorizes the Philadelphia Commission on Human Relations to promulgate implementing regulations, though further guidance has not yet been issued. Philadelphia is not the first city to enact pre-employment drug testing restrictions, and will likely not be the last. As of May of 2020, New York City prohibits most City employers from requiring prospective employees to submit to marijuana drug testing as a prerequisite for employment. In a similar vein, Nevada employers are prohibited from failing or refusing to hire a prospective employee because the individual submitted to a pre-hire drug screening and the test indicated the presence of marijuana. Click Here to read more from Lexology.

Puerto Rico Imposes Additional COVID-19 Restrictions and Vaccine Booster Mandates on Private Sector Employers

In his most recent attempt to curb the spread of COVID-19, on January 13, 2022, Puerto Rico Governor Pedro Pierluisi once again issued back-to-back executive orders (EO) implementing additional COVID-19 restrictions and extending vaccine booster requirements for employees in additional sectors.

EO 2022-002 – Attendance and Capacity Restrictions

EO 2022-002 extends the applicability of EO 2021-085 until February 2, 2022, maintaining the same capacity restrictions for bars, “chinchorros,” small cafeterias, sport bars, theaters, stadiums, coliseums, convention centers, community or activity centers, casinos and any other establishment that serves food or beverages. This EO, however, provides that, from January 17, 2022 forward, government agencies and other private business operations serving the public in a closed setting, such as retail businesses, supermarkets, grocery stores, funeral services, and financial, community, customer service, professional and non-professional offices, among others, must operate at a maximum occupancy of 75% of the total capacity of the establishment. Outdoor spaces may operate without the occupancy limitation, provided that physical distancing of six feet can be met.

This EO also extends the validity of EO 2021-086, which limits capacity of mass activities and business hours for private entities until February 2, 2022. Additionally, this EO provides that any activity involving 250 individuals or less held in theaters, stadiums, coliseums, convention or activity centers, whether indoors or outdoors, requires individuals in attendance to provide one of the following: 1) proof of full vaccination, which now includes vaccine boosters, if eligible; 2) a negative COVID-19 test result from a test taken no more than 48 hours before the event; or 3) a positive COVID-19 test result from the previous three months with documentation of recovery. Importantly, any activity with more than 250 individuals in attendance requires prior authorization from the Department of Health.¹

EO 2022-003 – Booster Requirements for Hospitality and Entertainment Sectors

Employees in hotels, hostels, theaters, cinemas, coliseums, convention centers and any other activity center must receive their vaccine booster by February 15, 2022. This is applicable to employees, owners, merchants, administrators, contractors and volunteers who work in person at any of the mentioned sectors. Employees must either provide proof of vaccination, provide negative COVID-19 test² results every seven days or provide a positive COVID-19 test result from the previous three months with documentation of recovery. Noneligible employees will have 30 days after they become eligible to comply with this EO. Those who do not comply with the mentioned requirements will not be able to work in person. Employers are encouraged to allow their employees to be vaccinated during working hours and grant them time as necessary to take care of side effects, if any.

Additional Health Sector Incentive

Although not mentioned in any of the above-referenced executive orders, the governor also announced a new $600 incentive for healthcare personnel in public and private hospitals and employees assisting in the Department of Health’s contact tracing system. Employees are eligible for this incentive if they are working in person and have had a maximum income of $55,000 during 2021. The incentive is available for full-time employees and independent contractors who meet certain hour requirements. Eligible employees who receive this assistance will be required to continue working at their hospital for at least three months after receiving the incentive. Hospitals will proffer these requests to the Puerto Rico Fiscal Agency and Financial Advisory Authority (AAFAF). AAFAF will begin the process of receiving applications and the payments will be made in late January through February. Hospitals will receive guidance on the applicable terms and conditions and how to request this incentive from the AAFAF on behalf of their employees. Click Here to read more from Lexology.

The District of Columbia’s Vaccine Mandate: What Businesses Need to Consider

Pursuant to the Mayor’s Order 2021-148 (the “Order”), beginning on January 15, 2022, the District of Columbia has required certain businesses to verify that all patrons aged 12 and over have received at least one dose of the COVID-19 vaccine. Beginning on February 15, 2022, all patrons must show proof that they have received at least two doses of the COVID-19 vaccine.

Businesses subject to the Order are required to (i) display signage alerting patrons of the vaccination requirement (sample signage is available at vaxdc.dc.gov) and (ii) verify its patrons’ vaccination status before allowing entry. Patrons may furnish the following information to verify vaccination status: (i) a CDC issued vaccination card (or a photocopy or digital copy thereof); (ii) a record of immunization from a health care provider or public health authority; (iii) a report from a COVID-19 verification mobile application (e.g., VaxYes, Clear, Excelsior, MyIR); or (iv) a World Health Organization Vaccination Record. Per the Order, businesses do not need to retain a patron’s record of vaccine status or a record of the verification process.

Covered Establishments

Pursuant to the Order, the following types of businesses must adhere to the aforementioned requirements:

• Indoor food and drink establishments (such as restaurants, nightclubs, taverns, food halls/courts, breweries, wineries, and distillery tasting rooms, seated dining halls, restaurants, and cafes located in museums, libraries, hotels, and other public venues);
• Indoor cultural and entertainment establishments (such as concert/live entertainment venues, sporting venues, movie theaters, pool and billiard halls, bowling alleys, cigar and hookah bars, and adult entertainment venues);
• Indoor exercise and recreational facilities (such as gyms and fitness studios); and
• Indoor event and meeting establishments (such as hotel meeting rooms, banquet halls, conference center meeting facilities, event/banquet halls located in museums and libraries, convention centers, auditoriums, and shared work facilities when hosting events).

Establishments Excluded from the Order

There are several ambiguities with respect to the types of establishments that are subject to the Order. For example, non-public fitness centers can typically be found in hotels, office buildings, and apartments. As such, are these uses–which could be considered gyms or fitness studios– subject to the vaccine entry mandate? In an effort to answer such questions and provide the public with further clarity on the vaccination entry requirement, DC Health has created and published the Guidance and a FAQ (the “FAQ”). According to the FAQ, gyms and fitness facilities operating for the sole use of individuals residing or working in that specific building are exempt from the vaccine entry mandate. The FAQ lists several other types of establishments which are deemed to be exempt from the vaccine verification requirement (many of which are explicitly included in the Order), including the following:

• Retail establishments;
• Grocery stores, farmer’s markets, and food establishments that provide charitable food services;
• Houses of worship;
• Hotels, except meeting rooms, ballrooms and hotel restaurants and bars;
• Homeless shelters and other human services facilities;
• Health care facilities and pharmacies;
• Private meeting spaces in office buildings or residential buildings;
• Gyms and Fitness Facilities operating for the sole use of individuals residing or working in that specific building; and
• Law enforcement buildings and government offices such as the Department of Motor Vehicles.

The Order is intended to cover venues and establishments where people typically gather, and the guiding principle for determining whether the mandate applies to a particular establishment is whether that establishment is open to the general public or whether outsiders who typically would not be present at the venue are invited in (e.g., an event held within a company’s conference space that is open to outside registrants).

It is important to note that if an establishment that is otherwise exempt from the vaccine entry mandate conducts a non-exempt activity, the vaccine requirement will apply. For example, if a house of worship is rented for a non-religious purpose, a museum hosts a gala, or a public library or a retail bookstore hosts an indoor event, proof of vaccination will be required for entrants.

Individuals Excluded from the Order

Expressly excluded from the mandate are individuals that only briefly enter an establishment (for example, to use the restroom or collect a carry-out order) and individuals who are either medically exempt or unable to receive the vaccine out of a sincerely held religious belief. Furthermore, the vaccine requirement does not apply to employees of covered establishments, just the patrons thereof.

Penalties for Non-Compliance

As set forth in the FAQ, relevant District agencies, such as DC Health, DC Alcoholic Beverage Regulation Administration, and DC Department of Consumer and Regulatory Affairs, will conduct spot checks to ensure that businesses are appropriately complying with the Order. Businesses that fail to make good faith efforts to comply will be subject to enforcement actions, including civil fines of not more than $1,000 and/or suspension or revocation of business licenses.

In accordance with the above, DC Alcoholic Beverage Regulation Administration recently released a citation schedule for violations of the Order by alcohol-licensed establishments (such as bars and restaurants), which are front and center in terms of establishments affected by the vaccine entry mandate. Consequences for violations of the Order for these establishments are as follows:

• First offense: Verbal Warning
• Second offense: Written Warning
• Third offense: $1,000 fine
• Fourth offense: $2,000 fine
• Fifth or Subsequent offense: Investigative Report submitted to DC liquor board and subsequent hearing (the board has the power to suspend or revoke licenses)

As of today’s date, one establishment has already been cited for not following the requirements set forth in the Order. A list of establishments that have been issued warnings or citations for failure to comply with the Order will be published by DC Alcoholic Beverage Regulation Administration every Tuesday on an ongoing basis. Click Here to read more from Lexology.

Governor Murphy Signs Executive Order Setting COVID-19 Vaccination and Booster Shot Requirements for New Jersey Healthcare Workers

On January 19, 2022, Governor Phil Murphy signed Executive Order 283 (EO 283), which, effective immediately, requires workers at New Jersey healthcare facilities and high-risk congregate settings to be fully vaccinated by specific dates or be subject to disciplinary actions for noncompliance.

As of January 19, 2022, healthcare workers in these settings will no longer be permitted to submit to testing as an alternative to full vaccination unless they are exempt from vaccination because they have been provided an accommodation.

Workers subject to the requirements set forth in EO 283 are defined as full and part-time employees; contractors; and other persons working in covered settings. This includes individuals providing operational, custodial, or administrative support. A list of the covered healthcare and high-risk congregate settings is provided on the New Jersey Department of Health website.

EO 283 Compliance Deadlines: Healthcare Facilities Subject to CMS Mandate

Consistent with the Centers for Medicare and Medicaid Services (CMS) mandate requiring healthcare facilities participating in Medicare and Medicaid programs to require all employees, volunteers, contractors, and other workers to receive the COVID-19 vaccine unless granted a medical or religious exemption, EO 283 provides the following dates for compliance:

• All workers must receive their first dose of a COVID-19 vaccine by January 27, 2022
• Unvaccinated workers must receive their first dose of a COVID-19 vaccine by January 27, 2022
• All workers must complete a primary series (i.e., one dose of a single-dose vaccine or all doses of a multiple-dose vaccine series) of a COVID-19 vaccine by February 28, 2022
• All workers must provide adequate proof of full vaccination status by February 28, 2022. With respect to booster shots, workers must provide adequate proof of vaccination status within three weeksof becoming eligible for the booster shot, whichever is later.

EO 283 Compliance Deadlines: Healthcare Facilities Not Subject to CMS Mandate

For healthcare facilities and high-risk congregate settings not subject to the CMS mandate, EO 283 provides the following date for compliance:

• All unvaccinated workers must obtain their first dose of the primary series of a COVID-19 vaccine by February 16, 2022
• All workers must provide adequate proof of vaccination status by March 30, 2022
• Any workers having received a booster dose must provide adequate proof of vaccination status by March 30, 2022, or within three weeksof becoming eligible for the booster, whichever is later.

EO 252: COVID-19 Testing Requirements

Governor Murphy’s Executive Order 252 (signed on August 6, 2021) required all workers in certain state and private healthcare facilities, along with those in high-risk congregate settings, to be fully vaccinated against COVID-19 by September 7, 2021 or be subject to COVID-19 testing at minimum one to two times per week.

EO 283 further requires workers in healthcare facilities – whether subject to the CMS mandate or not – who are currently subject to testing under EO 252 to continue with their testing protocols based on the respective February 28 and March 30 deadlines stated previously.

Next Steps

It is imperative that covered healthcare facilities and high-risk congregate settings begin implementing policies and procedures for full- and part-time employees, contractors, and other persons working in covered settings to become fully vaccinated by the dates set forth in EO 283, as lack of compliance may result in penalties. EO 283 provides for a disciplinary process to be in place for noncompliant workers which may include termination.

It should also be noted that EO 283 does not prevent a healthcare facility or high-risk congregate setting from instituting a stricter vaccination policy or additional requirements as long as the policy comports with the minimum requirements of EO 283. Click Here to read more from Lexology.

300A Alert! Reminder to Post and Report Annual Summary of Work-Related Injuries and Illnesses

California employers are required to post their annual summary of work-related injuries and illnesses, including COVID-19 illness, in a visible and easily accessible area at every worksite from February 1^st through April 30^th. Employers are required to use Cal/OSHA’s Form 300A for this posting.

Employers can find an overview regarding completing both the log (Form 300) and the annual summary (Form 300A) on Cal/OSHA’s Recording Keeping Overview page.

Cal/OSHA requires employers to record work-related fatalities, injuries, and illnesses. To be recordable under Cal/OSHA’s regulations, an injury or illness must be work-related and result in one of the following:

• Death
• Days away from work
• Restricted work or transfer to another job
• Medical treatment beyond first aid
• Loss of consciousness
• A significant injury or illness diagnosed by a physician or other licensed health care professional.

As with other recordable injuries and illnesses, a work-related COVID-19 case must meet one of the above-referenced requirements to be recordable.

Certain employers are required to annually electronically submit Form 300A data to Cal/OSHA by March 2^nd. Covered employers are those that meet one of the following requirements:

• Has 250 or more employees, unless specifically exempted by section 14300.2 of title 8 of the California Code of Regulations.
• Has 20 to 249 employees in the specified industries listed including Agriculture, Manufacturing, and Grocery Stores. For a full list of covered industries, employers can review Appendix H.

Information on how to make the electronic submission is available on the federal OSHA’s Injury Tracking Application website. Click Here to read more from Lexology.

New York City Enacts Law to Regulate the Use of Automated Hiring Tools

On December 11, 2021, New York City enacted Local Law Int. 1894-A. The law, which takes effect on January 1, 2023, limits an employer’s ability to use “automated employment decision tools” in hiring and promotion decisions within New York City. In this regard, the law provides that it will be “unlawful for an employer or an employment agency to use an automated employment decision tool to screen a candidate or employee for an employment decision” unless the tool has undergone a “bias audit.”

What is an automated employment decision tool?

An “automated employment decision tool” is defined broadly as “any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence, that issues simplified output, including a score, classification, or recommendation, that is used to substantially assist or replace discretionary decision making for making employment decisions that impact natural persons.” Therefore, the law applies to any data-driven tools used to conduct skills testing or behavioral analysis, review resumes, rank candidates, or assess employee performance. Notably, the law states that “automated employment decision tools” do not include firewalls, calculators, spreadsheets, databases, or other compilation of data.

Can employers still use those tools?

The law does not act as a per se ban on automated employment decision tools. Indeed, employers are still permitted to use these tools, subject to an annual “bias audit” conducted by an “independent auditor” which assesses “the tool’s disparate impact” on race, ethnicity, and gender. Further, the results of the bias audit must be made “publicly available on the website of the employer or employment agency prior to the use of such tool.”

Notice is required…

If an employer uses an automated employment decision tool, the employer is required notify each resident of New York City “who has applied” for a position: (1) that their application will be subject to an automated employment decision tool and (2) which job qualifications and characteristics the tool will use in the assessment of the candidate or employee.

Based on the statutory language of the law, it appears that this notice requirement does not apply to non-residents of New York City, so it is unclear how this law will affect non-residents of New York City who are applying for a position within New York City.

When is noticed required?

Such notice must be provided to the employee or candidate at least ten business days prior to the use of the tool and the employer “must allow a candidate to request an alternative selection process or accommodation.”

More notification requirements…

Employers and employment agencies must either post the following information on their website or provide such information within thirty days after receiving a written request from candidates or employees:

• Information about the type of data collected for the automated employment decision tool;
• The source of the data; and
• The employer’s or employment agency’s data retention policy.

The disclosure of this information is not required when prohibited by law or if the disclosure would interfere with a law enforcement investigation.

So what happens if an employer does not comply?

Any employer found in violation of the law will be “liable for a civil penalty of not more than $500 for a first violation and each additional violation occurring on the same day as the first violation, and not less than $500 nor more than $1,500 for each subsequent violation.” The explicitly states that a violation is measured on a per-day basis (i.e., each day on which an automated employment decision tool is used without complying with the law is a separate violation).

The law authorizes New York City’s corporation counsel to bring court proceedings against employers that violate this law to seek both the above civil penalties and/or injunctive relief. Additionally, candidates and employees can bring private lawsuits in any court of competent jurisdiction.

What to do now?

The New York Division of Human Rights is expected to issue regulations and guidance regarding this new law, which should hopefully be released prior to the January 1, 2023 effective date. Employers should monitor for any new updates to ensure compliance with all applicable obligations.

In the meantime, employers that use automated employment decision tools should audit such tools, including having necessary discussions with vendors and legal counsel, to assess whether to continue the use of such tools, especially in light of the potential liability associated with the new law. Click Here to read more from Lexology.

Wage Transparency: How Can Multi-State Employers Manage the Compliance Minefield of Wage Disclosure Laws Nationwide?

Pay equity, or the desire to achieve it, has been a hot topic for employers in the United States in the past several years. Due to a recent increase in legislation in many states and local jurisdictions, pay equity no longer just means ensuring women and other marginalized groups are being paid similar to their male counterparts who are performing similar jobs. Many jurisdictions also prohibit employers from relying on, or even asking about, an candidate’s past salary history, thereby forcing employers to look at other factors to set a new employee’s compensation. In addition, a growing number of cities and states now mandate that employers provide wage information to candidates and in some jurisdictions, current employees, either upon request or on a mandatory basis at a specified point in the hiring process.

Employers in 10 jurisdictions (and counting) are now subject to wage disclosure requirements. Colorado and New York City have made headlines as the first jurisdictions to mandate such disclosures. Employers must review the laws of each individual jurisdiction to remain compliant with this growing collection of wage disclosure laws. The following table provides an overview of these jurisdictions and what they require:

Jurisdiction	Who Gets the Info?	What Must be Provided?	When?	Effective Date	Penalties
California	Candidates	A salary or hourly range, not including bonuses or equity.	Upon reasonable request after an candidate interviews for a position.	January 1, 2018	Does not specify a penalty, but a representative claim under PAGA is available.
Colorado	Candidates and Employees	The hourly rate or salary; a general description of bonuses or other compensation; and a general description of benefits.	As part of the job posting.	January 1, 2021	Civil penalties between $500 and $10,000 per violation; a private right of action within two years of violation; compensatory and liquidated damages.
Connecticut	Candidates and Employees	Wage range, defined as any applicable pay scale previously defined, actual range of wages for those employees currently holding comparable positions or the employer’s budgeted amount for the position.	For candidates: the earlier of either the candidate’s request or prior to an offer of compensation being made; For employees: upon hiring of the employee, a change in the employee’s position with the employer, or upon the employee’s first request.	October 1, 2021	Private right of action within two years of a violation; compensatory damages; attorneys’ fees and costs; and possibly punitive damages.
Maryland	Candidates	Wage range, undefined by the law.	Upon request after application.	October 1, 2020	Civil penalties up to $300 per violation and $600 for each subsequent violation.
Nevada	Candidates and Employees	Wage or salary range, undefined by the law.	For candidates: after an candidate has completed an interview; For employees: after the employee has either applied, interviewed or received an offer for a promotion or transfer.	October 1, 2020	Civil penalties up to $5,000 per violation; a private right of action.
New York City	Candidates and Employees	Minimum and maximum salary, defined as the range an employer in good faith believes at the time of posting it would pay for the advertised job, promotion or transfer.	As part of the job posting.	May 14, 2022	No specific penalties as of yet, however the New York City Commission on Human Rights is authorized to impose civil penalties up to $125,000; a private right of action within three years; compensatory and punitive damages; attorney’s fees and costs.
Cincinnati, Ohio	Candidates	Pay scale, undefined by the Ordinance.	Upon reasonable request after an candidate has been provided a conditional offer of employment.	March 13, 2020	A private right of action within two years; compensatory damages; reasonable attorney’s fees and costs.
Toledo, Ohio	Candidates	Pay scale, undefined by the Ordinance.	Upon reasonable request after an candidate has been provided a conditional offer of employment.	June 25, 2020	A private right of action within two years; compensatory damages; reasonable attorney’s fees and costs.
Rhode Island	Candidates and Employees	Wage range, defined as the range the employer anticipates relying on in setting wages for the position and may include reference to any applicable pre-determined pay scale, or the range of wages for incumbents in equivalent positions, or the budgeted amount for the position.	For candidates: upon request after application, but the employer should disclose the wage range prior to discussing compensation; For employees: both at the time of hire and when the employee moves into a new position. Upon request, employers must disclose a wage range to current employees in their current position.	January 1, 2023	Civil penalties ranging from $1,000 – $5,000, however the Department of Labor & Training will not begin issuing fines until December 31, 2024; a private right of action within three years; compensatory damages; special damages up to $10,000; reasonable attorneys’ fees and costs.
Washington	Candidates and Employees	Minimum wage or salary expectation, undefined by the law.	For candidates: upon request after an offer has been made; For employees: upon request after an employee has been offered a promotion or transfer.	July 29, 2019	Civil penalties between $500 and $1,000; a private right action; compensatory damages no less than $5,000; costs and reasonable attorneys’ fees.

While these laws seem similar on their face, each has its own nuance. As a result, using a uniform policy may prove to be a challenge for a multistate employer. For instance, in Rhode Island, employers must not only disclose a wage range for candidates and employees upon transfer or promotion but also must respond to an employee’s request for a wage range for their current position. California, Washington, Connecticut, and Maryland all require disclosure upon request, but Nevada mandates automatic disclosure after an interview for an candidate, or after an application for a current employee. The New York City law appears to apply to jobs located within New York City only, which leaves an open question as to remote work; Colorado, on the other hand, has taken the position that remote positions require wage disclosure and any employer seeking to get around this requirement by specifically excluding Colorado candidates is not compliant with the law.

In practical effect, the onus is on employers to document their rationale for their hiring and pay decisions. Employers can: (1) document formal job descriptions for both new candidates and promotion/transfer opportunities; (2) determine salary ranges for each job classification using existing data or on a good-faith basis; (3) create internal policies regarding promotion/transfer opportunities within an organization; and (4) develop internal systems for handling employee requests for salary reviews.

This wave of wage disclosure laws likely is only the beginning. With similar legislation pending in several additional cities and states, we can expect to see additional governmental mandates in furtherance of pay equity in the near future. Click Here to read more from Lexology.

COURT CASES

Federal judge rules Virginia’s restricted access to court records violates First Amendment

A district court judge in Virginia on Friday found Virginia’s online civil court system violated First Amendment rights of the press and public because of the system’s restricted access to newly filed civil complaints.

The Officer of the Court Remote Access (OCRA) system makes civil filings available to attorneys through a per-court subscription fee. Authorized users can access filings from the courts they are subscribed to. The public and news outlets cannot use OCRA. Instead, non-attorneys need to physically go to the courts to access the documents. Approximately 90 of the 120 courts in Virginia use OCRA.

Courthouse News Services (CNS) filed the lawsuit against Karl R. Hade, executive secretary of the Supreme Court of Virginia, and Jacqueline C. Smith, clerk of the Circuit Court for Prince William County, VA. In the lawsuit, CNS asserted that Hade and Smith have power to grant the public and news outlets digital access to civil complaints and that withholding this access violates the First Amendment.

In the opinion, Judge Henry Hudson wrote, “It is well-settled that the press and public have a right of access to most, if not all, civil court records.” Hudson explained that excluding non-attorneys from having online access to civil filings is “not narrowly tailored to preserve a significant governmental interest and thus could violate the First Amendment.” Click Here to read more from Jurist.

Supreme Court of New Hampshire Weighs in On Reasonable Accommodations for Medical Marijuana Users

On January 14, 2022, the Supreme Court of New Hampshire reversed a trial court decision that dismissed a former employee’s complaint alleging his employer failed to consider whether it could reasonably accommodate his use of marijuana for medicinal purposes. New Hampshire joins a growing number of other jurisdictions that have found an employer might have to consider medical marijuana use as a reasonable accommodation.

The former employee alleged that he suffered from Post-Traumatic Stress Disorder and that his physician had recommended that he use marijuana to treat his PTSD. He enrolled in the state’s therapeutic marijuana program and submitted to his employer a written request for an exception from its drug testing policy as a reasonable accommodation for his disability. The former employee advised that he had no intention of using or possessing during work hours or on the company’s premises. The employer denied the request and ultimately terminated him.

The former employee brought an employment discrimination claim alleging a failure to make a reasonable accommodation for his disability. The employer moved to dismiss, arguing that because marijuana is both illegal and criminalized under federal law, the requested accommodation was facially unreasonable. The trial court agreed with the employer and granted its motion. The former employee argued on appeal that the trial court erred in ruling that as a matter of law, an employer cannot be required to accommodate an employee’s use of medical marijuana to treat a disability under state law.

The Supreme Court of New Hampshire agreed with the former employee and reversed. Focusing on the text of the statute, the court agreed with the former employee that the New Hampshire disability and accommodation statute does not contain any language categorically excluding the use of medical marijuana as an accommodation. Rather, whether an accommodation for a medical marijuana user is reasonable is “intrinsically a factual determination” that “should be decided on a case-by-case basis depending on the facts of the case.” As a result, the court reversed and remanded.

New Hampshire is not alone in providing employment protections to candidates and employees using medical marijuana. In recent years, more states are passing laws, or their courts are interpreting existing laws, to protect medical marijuana users, including in Arizona, Connecticut, Delaware, Massachusetts, New Jersey, New York, and Rhode Island, among others. It is likely that list will grow. Employers in all jurisdictions should exercise caution when dealing with candidates and employees using medical marijuana. Before taking any action against medical marijuana users, employers should review the laws of the states in which they operate and work with employment counsel to help navigate this complex and rapidly evolving area of the law. Click Here to read more from Jdsupra.

New York State court strikes down statewide mask or vaccine requirement for indoor public places

On January 24, 2022, the New York State Supreme Court in Nassau County struck down, effective immediately, the State’s COVID-19 mask-or-proof of vaccination requirement for indoor public places, holding that the State Department of Health did not have the legal authority to implement the regulation without the approval of the State legislature. A hearing before the New York State Appellate Division on a request for stay of the Nassau County court’s ruling has been scheduled for January 25, 2022 and we will provide updates on further developments.

The now overturned directive took effect on December 15, 2021, through a rule promulgated by the State Commissioner of Health. Under the directive, all indoor public places were ordered to require masks to be worn by all individuals regardless of vaccination status unless the business or venue required proof of full COVID-19 vaccination as a condition of entry. The order was initially effective through January 15, 2022, however Governor Kathy Hochul later extended it through February 1, 2022.

The state court’s ruling has no effect on local mask requirements, including the New York City mask order for schools. Further, pursuant to the New York State HERO Act, where not all individuals on premises, including but not limited to employees, are fully vaccinated, employers must require employees wear appropriate face coverings in accordance with guidance from the New York State Department of Health or the Centers for Disease Control and Prevention, as applicable. Click Here to read more from Lexology.

INTERNATIONAL DEVELOPMENTS

 UK and US agree deeper data-sharing partnership/The partnership will see the two nations form a comprehensive strategy to share data that aligns with both domestic data sharing and protection frameworks.

The UK and US have announced a new agreement that will see the two long-term allies develop a deeper cross-border data partnership. In a joint statement from the Summit for Democracy, the UK secretary of state for Digital, Culture, Media & Sport (DCMS) Nadine Dorries and the United States commerce secretary Gina M. Raimondo said developing a more comprehensive data-sharing agreement will lead to “a more peaceful and prosperous future”.

• EU grants the UK provisional ‘data adequacy’ status
• UK government to consider gutting GDPR rules
• UK reveals post-Brexit data reforms alongside flurry of international agreements

The challenge, the two nations acknowledged, would be to create a data-sharing partnership that both allowed the free-flowing of data across the Atlantic while adhering to the different data protection laws and frameworks adopted by the two countries.

The purpose of creating the data framework is to enhance public safety, national security, and law enforcement investigations, the joint statement read. Read more from Itpro.

UK agrees world’s most comprehensive digital trade deal with Singapore

The UK has secured an agreement in principle with Singapore for a Digital Economy Agreement (DEA) that will cut costs, slash red tape and pave the way for a new era of trade. It is the first digitally-focused trade agreement ever signed by a European nation. This comprehensive digital trade deal was agreed in record time by International Trade Secretary Anne-Marie Trevelyan and Singapore Minister-in-charge of Trade Relations S. Iswaran after just six months of negotiations.

The DEA will take our trading relationship with Singapore – worth £16 billion in 2020 – to the next level by overhauling outdated trade rules that affect both goods and services exporters, making it easier for UK business to target new opportunities in both Singapore and lucrative Asian markets.

A third of our exports to Singapore are already digitally delivered, including in finance, advertising and engineering, and this deal will create new opportunities to expand digital trade. Services companies will be the big winners, from financial and telecoms giants like Standard Chartered or BT Group to software companies like Wales-based Awen Collective.

The deal will boost a sector that adds £151 billion to the economy and lifts wages, with workers in the digital economy earning around 50% more than the UK average. UK-founded tech unicorns are being created at a rate of almost one a week, and more will now be able to follow in the footsteps of British companies like Revolut, Darktrace and Checkout.com, which are already thriving in Singapore.

Goods exporters will also benefit from streamlining cumbersome border processes. Time-consuming and costly paperwork can be replaced with e-signatures, e-contracts and electronic invoicing with greater confidence.

Singapore is a gateway to the wider Indo-Pacific region and the DEA will support our bid to join Singapore and 10 other nations in the Trans-Pacific Partnership (CPTPP). Membership would mean access to a £8.4 trillion free trade area with vast opportunities for UK business. Click Here to read more from GOV UK.

UK Employment Tribunal decides dismissal of unvaccinated care worker was fair

A care assistant in a residential home for dementia sufferers, who refused her employer’s requirement to take the COVID-19 vaccine, was fairly dismissed. She failed to follow a reasonable management instruction, after her employer introduced a mandatory vaccination policy in January 2021 making the COVID-19 vaccine a condition of her continued employment. The care worker said she chose not to be vaccinated because she did not trust the vaccine’s safety. Later in a disciplinary hearing to consider her dismissal, for the first time, she argued that she had a religious objection to the vaccine based on her Rastafarianism. The employer did not believe this reason was genuine. She was dismissed as posing a real risk to the health of residents, staff and visitors. As a small employer, its insurers had also stated that its public liability insurance would not cover it for COVID-19 related risks. The Tribunal decided she was acting unreasonably in her vaccine refusal because she had given no medical authority or clinical basis for her stated vaccine concerns and it accepted the employer’s scepticism that her refusal was connected with a religious belief. The interference in her private life was proportionate because of the nature of the nursing home’s business and the vulnerability of the residents in its care. The care worker’s own recent COVID-19 infection was insufficient protection for them. This decision will provide reassurance to care sector employers introducing mandatory vaccination policies. Since 11 November 2021 it has been mandatory for care home workers in England to be vaccinated against COVID-19 and the same will apply to frontline healthcare workers in England from 1 April 2022, in each case unless the worker is exempt. However, the employer in this case was scrupulous about its disciplinary process and record keeping whilst the worker was found by the Tribunal to have weaker written records. Less well organized employers or employees who state a genuinely held religious belief consistently as a vaccine refusal reason could bring different results in other such Tribunal claims. Following specialist legal advice on your processes in this developing area must be the recommended course. Click Here to read more from Marketing User Content.