Archive
Biden Administration Announces Public Vaccine Mandates That Require Action by Large Private Employers, Federal Contractors, and Healthcare Employers
By: Matthew Mitchell & Amanda Thibodeau
On September 9, 2021, the Biden Administration announced the Path Out of the Pandemic – a strategic plan to respond to the continued spread of COVID-19 (the “Plan”). In general, the Plan outlines a broad-brush approach to combating the continued ill-effects of the pandemic, including:
- Strategies to increase vaccination rates;
- Strategies to maintain school operations;
- Strategies to implement additional safety regulations; and
- Strategies to implement additional economic stimulus programs.
The widely reported-on, cornerstone of the Plan is a mandate that, when implemented, will require large employers, federal contractors, and healthcare employers to adopt mandatory vaccination policies for their employees (the “Vaccine Mandate”).
The basic elements of the Vaccine Mandate can be found in our COVID-19 Alert.
The CDC Revises COVID-19 Mask Recommendations For Fully Vaccinated Individuals: Implications For Massachusetts Employers
On July 27, 2021, the Centers for Disease Control and Prevention (“CDC”) revised its COVID-19 mask guidance (the “Revised Guidance”), recommending that all individuals, regardless of COVID-19 vaccination status, resume wearing masks in “public indoor settings” in areas of the United States that exhibit “substantial” or “high” COVID-19 transmission rates. This announcement revises the CDC’s May 2021 mask guidance that indicated that fully vaccinated individuals could discontinue mask wearing and social distancing in most settings.
At present, there are five counties in Massachusetts that qualify as “substantial” or “high” transmission areas, under the Revised Guidance:
High Transmission:
- Barnstable County
Substantial Transmission:
- Bristol County
- Dukes County
- Nantucket County
- Suffolk County
The Revised Guidance does not specifically define the types of “public indoor settings” where masks should be worn. As such, it is unclear as to whether the Revised Guidelines are intended to apply to work environments.
Currently, Massachusetts requires masks only in the following settings: Public and Private Transportation; Healthcare Facilities; Congregate Care Facilities; Emergency Shelters; Houses of Correction; Health Care and Day Services Facilities. There is no general mask mandate in Massachusetts, and there are no rules that require masks or social distancing, generally, in work environments. This present Massachusetts standard is expressly based on the CDC’s prior May 2021 mask guidance. However, in recent public remarks, Massachusetts Governor Charlie Baker has indicated that the Commonwealth is now considering new general safety standards in light of the Revised Guidelines.
Employers should continue to monitor applicable regulations and reopening guidance, including masking requirements and recommendations, in jurisdictions where they are located.
See our complete COVID-19 Resource Collection for additional information, or contact a member of the Morse Employment Team.
COVID-19 Alert: OSHA Issues Emergency Temporary Standard for Healthcare Settings
By: Matthew Mitchell & Amanda Thibodeau
On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”) directed at protecting frontline healthcare workers for the duration of the COVID-19 pandemic. As part of the Biden Administration’s directives, OSHA determined that its current standards and regulations, and OSHA’s General Duty Clause, were inadequate to protect workers in the healthcare sector, and issued this ETS. OSHA additionally updated its non-binding guidance for all other industries, which still remain subject only to OSHA’s regular regulations, standards, and General Duty Clause.
THE “NEW” REQUIREMENTS
The main section of the ETS requires employers to develop and implement effective COVID-19 plans, the control strategies of which should be very familiar to most employers at this point in the pandemic. However, now OSHA will require employers to use a number of familiar controls in a layered approach in order to protect employees. The key requirements of the ETS are:
- COVID-19 Plan. OSHA will now require every qualifying employer to develop and implement a COVID-19 plan for each workplace site. If the employer has more than 10 employees, the plan must be in writing. The Plan must be developed in conjunction with management and non-management and must be clearly communicated to employees.
- Patient screening and management. Employers must limit points of entry in direct care patient settings, screen and triage all visitors, clients, patients, and others entering the setting, and encourage telehealth services when appropriate.
- Standard and transmission-based precautions. Employers must develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
- PPE. Employers must provide facemasks to be worn by each employee when indoors or when sharing a vehicle for work purposes, with some exceptions.
- Aerosol-generating procedures on a person with suspected or confirmed COVID-19. Employers must limit employees present for the procedure to only those essential, and perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
- Physical distancing. Employers must keep people at least 6 feet apart when indoors, unless not feasible (such as for hands-on medical care).
- Physical barriers. Employers must install cleanable or disposable barriers installed at fixed work locations in non-patient areas where social distancing is not possible.
- Cleaning and disinfection. Employers must engage in standard practices for cleaning and disinfection for patient care areas, resident rooms, and medical devices and equipment, and in all other high-touch areas, in accordance with CDC guidelines.
- Ventilation. Employers must ensure that all HVAC systems are used in accordance with the manufacturer’s instructions, and that all air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher, or the highest compatible with the system.
- Health screening and medical management. Employers must screen each employee daily, which may be done through self-monitoring by the employee. Each employee must report COVID-19 confirmed and suspected illness, or symptoms to the employer. The Employer must also notify all employees who were not wearing respirators and/or required PPE of any COVID-19 exposure at the workplace.
- Vaccination. Employers must provide support and paid leave for employees to receive a COVID-19 vaccination, and to recover from any side effects.
- Training. Employers must train and educate employees on COVID-19 transmittal, hygiene, and other prevention policies and procedures.
- Anti-retaliation. Employers must inform employees of their rights to the protections required by the ETS, and employers must not discharge or discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the ETS.
- Recordkeeping. Employers with more than 10 employees must establish a COVID-19 log of all employee COVID-19 infections and follow requirements for making records available to employees and union representatives.
- Reporting requirements. Employers must comply with OSHA’s reporting requirements for work-related COVID-19 fatalities and in-patient hospitalizations.
Will these changes under OSHA’s new ETS affect your business? Learn more in our COVID-19 Alert.
Massachusetts Advances To Step 1 Of Phase IV; Replaces Travel Order With Travel Advisory: What Employers Need To Know Now
On March 22, 2021, Massachusetts Governor Charlie Baker implemented “Step 1 of Phase IV” of the Commonwealth’s phased economic re-opening plan – authorizing several previously closed business sectors, such as performance venues and exhibition halls, to recommence limited operations. The transition to Step 1, Phase 4 is triggered by the recent decrease in COVID-19 infection and hospitalization rates, and the recent increase in public access to vaccines, across the Commonwealth.
Coincident with the implementation of the Step 1, Phase 4 plan, the Commonwealth has issued revised COVID-19 standards that apply to employee safety, including adjustments to worksite social distancing and hygiene standards, and a scaling-back of travel restrictions.
Read our full COVID-19 Alert for a summary of these new regulations.
Employment Law Round-Up: What Massachusetts Employers Need to Know For Q4 2020
By Matthew L. Mitchell and Amanda Thibodeau
With a work environment pressurized by the COVID-19 crisis and a contentious election cycle, employers are finding themselves increasingly involved with unusual employee conflicts and complicated employment law compliance questions. This can be particularly disruptive during the closing months of the business year.
The following summary discusses a variety of key concepts and new employment law standards that are intended to support Massachusetts employers in avoiding and navigating issues that may arise in the closing months of 2020. Topics include: Politics in the workplace, employee social media activity, responding to worksite infections, workplace safety, Massachusetts Paid Family Medical Leave, and unemployment insurance fraud.
Employment law attorneys Matt Mitchell and Amanda Thibodeau summarize these standards here.
Scott Connolly Discusses Properly Classifying Workers in Accounting Today
In Accounting Today’s article “Properly Classifying Workers Remains a Major Problem“, employment attorney Scott Connolly comments on how worker misclassification is a prevalent issues for both the Internal Revenue Service and state taxing officials. Companies that misclassify employees as independent contractors avoid paying minimum wage, payroll taxes, overtime, worker’s compensation, and other payments under the Federal Family and Medical Leave Act. However, this mislabeling can lead to trouble with the IRS, including the company owing taxes it failed to withhold by classifying a worker as an independent contractor instead of as an employee.
Additionally, as Scott notes:
The employer should be concerned about misclassification claims from the workers themselves… Many service providers want to be classified as independent contractors, but companies run the risk because later there might be disharmony in the relationship.”
Read the full article for more information on the potential consequences of misclassifying workers, or contact Scott Connolly for more information.
Federal Judge Temporarily Blocks New Overtime Rule From Taking Effect On December 1
By: Scott J. Connolly and Sandra E. Kahn
On November 22, a federal judge in Texas issued a preliminary order that temporarily blocks the U.S. Department of Labor (DOL) from implementing changes to the salary basis for white collar overtime exemptions. The new salary rule, which was to become effective on December 1, 2016 would have required employers to increase exempt employees’ minimum salary from $23,660 to $47,476. The preliminary court order blocking the rule appears to apply to all public and private employers nationwide.
Find out how the judge’s order will affect the new salary rule, which was to become effective on December 1. Read this month’s Employment Law Alert.
Are You Ready to Reclassify? New Overtime Regulations Go Into Effect on December 1, 2016
By: Sandra E. Kahn
On December 1, 2016, any employees who earn less than $47,476 annually will be entitled to overtime and must be treated as non-exempt, as per the U.S. Department of Labor’s final rule (“Final Rule”).
Don’t wait any longer to address this critical change in the law.
Find out how the Final Rule will affect your current employee classifications and pay practices, and the consequences of not complying with the law.
Read this month’s Employment Law Alert.
Massachusetts Pay Equity Law Imposes New Restrictions on Employer Pay and Hiring Practices
By: Maura E. Malone
On August 1, 2016, Massachusetts Governor Charlie Baker signed “An Act to Establish Pay Equity (the Act)” into law. The Act, which does not become effective until July 1, 2018, will require Massachusetts employers to pay men and women equally for comparable work. It also forbids employers from asking prospective employees about salary history or restricting employee discussion of pay. The Act imposes significant consequences for
violations of the law.
The Act will make it unlawful for employers to pay unequal wages to employees of different genders who perform comparable work. The Act broadly defines wages to include “all forms of remuneration for employment.”
Continue reading on the full alert.
Will We See Non-Compete Reform Enacted This Year?
For the past eight years, legislative efforts to reform post-employment noncompetion agreements in Massachusetts have failed. But this year, House Speaker Robert A. DeLeo has signaled his support for H. 4323 and there is buzz that a non-compete bill may
land on Gov. Baker’s desk before the legislative session ends in July.
This bill entitled, “Massachusetts Noncompetition Act” has eight key components in order for a noncompetition agreement to be valid and enforceable. If H. 4323 is enacted, employers will have to quickly and carefully revise their employee restrictive agreements to comply with the new law.
Read the full post here.
“Magic” Numbers for Federal and State Employment Law Coverage
By: Sandra E. Kahn
There is an ever-increasing array of regulation on employment practices at the state and federal level. But when do growing businesses become covered under the employment laws of these jurisdictions?
It’s all in the employee numbers: Six, Fifteen, Twenty, Fifty, One Hundred. For example, when a business has six employees, the company becomes covered by the MA Fair Employment Practices Act but then at fifteen, it also comes under the federal laws of Title VII of the Civil Rights Act of 1964. As the company grows, different regulations come and go and it is critical to be aware of it in order to maintain legal compliance.
Read the full post here.
New Overtime Regulations Will Result In Many More Workers Becoming Entitled To Overtime
By, Sandra E. Kahn
On May 18, 2016, President Obama announced the publication of the U.S. Department of
Labor’s final rule (“Final Rule”) updating the overtime regulations, and providing that employees who earn less than $47,476 annually will be entitled to overtime.
The federal Fair Labor Standards Act (“FLSA”) “white collar” exemptions are familiar to most employers. Under the FLSA, employees must be paid the minimum amount required by the statute on a salary basis, and the employee’s job duties must primarily involve executive, administrative, or professional duties. The Final Rule changes only the salary basis test, leaving in place the existing duties test.
For more details, read our full alert and visit our Employment Law Group page.
New Federal Law Protects Trade Secrets But Also Requires Changes to Employee and Contractor Agreements
By: Sandra E. Kahn
The new Defend Trade Secrets Act of 2016 (DTSA) is expected to be signed into law by President Obama. The Act will allow claims for trade secret theft to be brought under a federal civil cause of action.
Under certain circumstances, the Act will provide protection for whistleblowers who divulge trade secrets to the government in order to report wrongdoing. As such, employers will now have to inform their employees of that protection in any agreement or contract. It is advised that employers consult with their counsel to revise contracts as necessary.
For a more detailed explanation of the DTSA, read the full post on our Good Company blog.
2016 New Year’s News for Employers
As we approach the New Year there are a few important changes to keep in mind, as well as recommendations to get your employment law practices in order.
What are these changes?
- Minimum Wage Goes Up
- Earned Sick Leave Safe Harbor Ends
- Sexual Harassment Law Compliance
- Data Protection Compliance
For all the details read our Employment Law Alert.
If you have questions about any of the above suggestions, please contact Sandy Kahn or any member of MBBP’s Employment Law Group.
Employers Cannot Pay Employees With Stock or Equity In Lieu of Cash
A company with a bright future but a temporary cash shortage might be tempted to compensate employees with an ownership interest in the company (stock or equity) instead of with cash.
But, is this practice legal? Generally, the answer to this question is no. Under state and federal law, employees must be paid at least the minimum wage in cash. Providing equity, no matter how much the equity is worth, does not fulfill this requirement.
An exception to this rule is made, however, if the employee comes within the exemption for executive-business owners provided for in the federal Fair Labor Standards Act (“FLSA”). An individual who comes within this exemption is exempt from the FLSA’s minimum wage and overtime requirements.
To be exempt as an executive-business owner under the FLSA, an individual must (1) be employed in a bona fide executive capacity, (2) own at least a 20% bona fide interest in the business and (3) be actively engaged in the management of the business.
Unless an employee meets each of these requirements, paying in equity alone will run afoul of wage laws, and could result in significant liability for the employer, as well as possible individual liability for the president, treasurer, and individual “officers and agents” of the employer’s corporate entity.
For further help in determining whether your employee comes within the executive-business owner exemption or questions about paying employees with equity, contact a member of our Employment Law Group.
Massachusetts Attorney General Issues Final Earned Sick Time Regulations
The final version of the Massachusetts Attorney General’s Earned Sick Time Regulations contains some important clarifications to the Earned Sick Time Law, including changes from the draft regulations. These changes include a fifth reason that leave may be taken, guidance regarding unlimited and lump sum policies, and a variety of other provisions.
Employers should review their policies to take advantage of the options provided in the new regulations. To see what changes have been made and how they might affect you please read the full alert.
Shouldn’t Employers Be Permitted to Prohibit Defamatory or Inappropriate Comments by Employees? New NLRB Report Says No.
It may come as a surprise to many private employers, who often don’t realize that the requirements of the National Labor Relations Act (“NLRA”) apply to non-unionized workplaces. However, in a recently released report the National Labor Relations Board (“NLRB”) addresses the decisions invalidating a variety of handbooks rules found in many employer handbooks.
For more information on how this applies to you read the full alert.
Proposed Noncompete Legislation Filed in Massachusetts
By: Robert M. Shea
Several bills that would restrict the use of noncompete agreements were filed in the Massachusetts legislature in January. Two bills (H.730 and H.2157) filed by Rep. Angelo Puppolo and Rep. Sheila Harrington, respectively, use language similar to the California law that bans most employee noncompetes (as well as nonsolicitation agreements) but permits nondisclosure agreements.
Three other bills take a more limited approach. Two bills (H.2332 and S.809) filed by Rep. Lori Erlich and Sen. Will Brownsberger, respectively, are identical to each other and use language similar to that proposed by Governor Patrick last year. These bills are focused on noncompete agreements and do not seek to ban customer (or employee) nonsolicitation agreements or nondisclosure agreements. The bills also would not affect noncompete agreements already in place (that is, the law would not apply retroactively). Another bill (S.334) filed by Sen. Jason Lewis uses almost the same language but would apply retroactively. A sixth bill (H.709) filed by Rep. Garrett Lewis, uses similar language but could be interpreted as barring not just noncompete agreements but all employee restrictive covenant agreements. It would also apply retroactively.
We will keep clients updated on the proposed legislation. In the meantime, please feel free to contact the Employment Law team with any questions.
When was the last time you updated your employee handbook?
It’s important to communicate the policies and expectations regarding employer conduct and with the recent legal developments you are required to make frequent updates to your employee handbook. We’ve outlined several policies that should be reviewed to be sure they are compliant. In addition if these are not in your handbook, they should be added!
To learn what steps employers should take, read the full advisor.
Massachusetts Maternity Leave Becomes Parental Leave on April 7, 2015
Just before leaving office, Governor Patrick signed into law a bill extending the existing Massachusetts Maternity Leave protections to all employees. Now both parents of the child can take advantage of this benefit.
Although the Parental Leave closely tracks the old Maternity Leave some new provisions have been added. One, being that if two employees work for the same employer, they will only be entitled to 8 weeks of parental leave in aggregate for the birth or adoption of a child. In addition an employee on parental leave for adoption is now entitled to the same benefits as an employee on leave for the birth of a child. There is also some interaction with other laws that you should be aware of. To see how this new law could affect you please read the full alert.
If you have any questions, please feel free to contact a member of our Employment Law Group.
Massachusetts Employment Law Blog 