Law and the Workplace

New York State Issues Updated Travel Advisory; Relaxes Travel Restrictions

On April 10, 2021, the New York State Department of Health again updated its COVID-19 Travel Advisory for domestic and international travel. The advisory removes many of the quarantine requirements for domestic and international travelers arriving in New York State and clarifies existing guidance for all travelers. Additional information about the current restrictions on travel to New York State is provided below.

Domestic Travel

With the exception of healthcare workers (see below), there is no testing or quarantine requirement for domestic travelers entering New York State under the latest travel advisory. This largely remains unchanged from the April 1, 2021 version of the advisory.

However, the state does recommend that unvaccinated domestic travelers who have not recently recovered from COVID-19 get tested between days 3-5 after travel. The state also recommends that they consider self-quarantining for 7 days if tested, and 10 days if not tested.

International Travel

The latest version of the travel advisory also removes many of the restrictions for international travelers. Under the latest travel advisory, international travelers arriving in New York State are no longer required to quarantine or be tested upon arrival. However, the State has issued the following recommendations for international travelers, consistent with CDC recommendations:

  • Fully vaccinated international travelers should get a COVID-19 test between days 3-5 after arrival in New York.
  • Unvaccinated international travelers are recommended to delay all international travel until they are fully vaccinated. Individuals who do travel from abroad should get a COVID-19 test between days 3-5 after arrival in New York. They should also consider self-quarantine for 7 days after arrival, or 10 days if the individual does not get tested. No matter the test result, they should avoid contact with people at higher risk for severe disease.

International travelers arriving in New York must also follow CDC requirements for international travel. Currently, the CDC requires proof of a negative COVID-19 test within 3 days before travel or proof of a recent recovery from COVID-19 in order to board a plane to the United States.

These guidelines do not apply to international travelers from Canada arriving at a land border. These travelers must comply with the United States and Canada’s agreement regarding land travel between the two countries, which prohibits all non-essential travel.

Requirements for Healthcare Workers

The state has also added additional requirements for unvaccinated healthcare workers arriving in New York State who have not recently recovered from COVID-19:

  • Health care personnel who work in nursing homes, enhanced assisted living residences, or assisted living programs must furlough from work for 14 days upon arrival. This requirement applies to both domestic and international
  • Health care personnel working in all other health care settings cannot return to work for 10 days after international travel. However, if they get tested between days 3-5 after travel, and receive a negative test result, they only need to furlough for 7 days. Regardless of tests results, these individuals must also avoid contact with people at higher risk of severe disease for 14 days. There is no corresponding requirement after their domestic travel.

Those who have left New York for less than 24 hours, or who are arriving from a contiguous state, are exempt from these requirements.

Additional Guidance

The state also clarified the definitions of fully vaccinated, recently recovered, and contiguous state in relation to the travel guidance:

  • Fully Vaccinated is defined as being two or more weeks from receiving the second dose of either the Pfizer or Moderna vaccine, or being two or more weeks from receiving the Johnson & Johnson vaccine. The guidance no longer requires that the individual receive their last vaccination within the previous 90 days in order to be considered fully vaccinated. The guidance also clarifies that receiving a vaccine not authorized by the FDA, either for emergency use or in general, will not satisfy the definition of fully vaccinated.
  • Recently Recovered is defined as: (1) being fully recovered from laboratory-confirmed COVID-19 as to meet the criteria for discontinuation of isolation; (2) being within 3 months of the start of symptoms or the date of a positive COVID-19 test if an individual remained asymptomatic; and (3) remaining asymptomatic.
  • Contiguous States include Pennsylvania, New Jersey, Connecticut, Massachusetts, and Vermont. Travelers arriving from a contiguous state or who only leave the state for less than 24 hours are not required to complete the NYS Travel Health Form upon arrival. All other travelers must continue to complete the form.

In addition, all travelers to New York should continue to monitor symptoms for 14 days after arrival and immediately self-isolate if any symptoms develop. They should also continue strict-adherence to social distancing guidelines, including wearing face coverings.

Employment Implications

With respect to employment, the Advisory reminds businesses that any New York State resident who voluntarily engages in certain travel may not be eligible for leave under New York State’s COVID-19 leave law.

According to the Advisory, employers are also permitted to require employees to stay home from work in any situation where the state recommends quarantine. Employers should consult with counsel before implementing travel restrictions that are more restrictive than what is required by the state, as such policies may have implications under the state’s COVID-19 leave law and guidance issued by the New York State Department of Labor.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

DOL and Liquidated Damages: The Breakup Only Lasted 9 Months

On April 9, 2021, the U.S. Department of Labor (DOL) rescinded the Trump-era enforcement practice of abstaining from seeking liquidated damages in connection with pre-litigation investigations and settlements of wage and hour claims.  In Field Assistance Bulletin No. 2021-2, issued by the Wage and Hour Division’s Principal Deputy Administrator, Jessica Looman, the agency announced that it would revive its policy of seeking liquidated damages from employers in such circumstances.  So how did we get here?

Liquidated Damages 101

The original version of the Fair Labor Standards Act (FLSA)—signed by President Franklin D. Roosevelt on June 25, 1938 and a centerpiece of New Deal legislation—contained the following language, which appears verbatim today in 29 U.S.C. § 216(b):

Any employer who violates the provisions of section 6 [minimum wage] or section 7 [overtime] of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.

In section 11 of the Portal-to-Portal Act of 1947 (29 U.S.C. § 260), Congress amended the FLSA to add a specific safe harbor against liquidated damages claims:

In any action … to recover unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the [FLSA], if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [FLSA], the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed [the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be].

The DOL has the authority investigate alleged violations of the FLSA (see 29 U.S.C. § 211(a)), as well as to supervise settlements of FLSA claims and litigate against employers charged with violating the statute (see 29 U.S.C. § 216(c)).

Trump DOL Abandons LDs… in Most Cases

In May 2020, President Donald J. Trump signed Executive Order (EO) 13924, which required the DOL and other executive agencies to remove certain regulatory and enforcement barriers to economic prosperity in an effort to help defeat the impact of COVID-19 on the American economy.  As we reported last June, in response to EO 13924—and noting that investigations involving liquidated damages take 28% more time than those involving back wages only—WHD announced in FAB 2020-1 that, effective July 1, 2020, the agency would no longer assess pre-litigation liquidated damages if any of the following circumstances exist:

  • there is no evidence of bad faith or willfulness;
  • the employer’s explanation for the violation shows that it was the result of a bona fide dispute of unsettled law under the FLSA;
  • the employer has no previous history of violations;
  • the matter involves individual coverage only;
  • the matter involves state and local government agencies or other non-profits;
  • the matter involves “complex” exemptions under sections 13(a)(1) or 13(b)(1) of the FLSA (29 U.S.C. §§ 213(a)(1), (b)1); or
  • the matter involves State and local government agencies or other non-profits.

In addition, each request for pre-litigation liquidated damages under the FLSA would have to be submitted to and approved by both the WHD Administrator and the Solicitor of Labor (or either of her designees) on an individual basis.

It’s 2021, and LDs are back!

In FAB 2021-2, WHD rescinds FAB 2020-1 and announces a “return to pursuing liquidated damages from employers … in its pre litigation investigations provided that the Regional Solicitor [of Labor] (RSOL) or [their] designee concurs with the liquidated damages request.”  By contrast, “[l]iquidated damages shall not be assessed by WHD where the employer has set forth credible evidence of a good faith defense or the where the RSOL deems the matter inappropriate for litigation.”

Takeaways

Given the statutory safe harbor for good faith violations, employers should be prepared to negotiate against liability for liquidated damages in DOL investigations where the facts support the argument, just as they would in private civil litigation.  That said, this week’s news is yet another sign that we are in a new federal administration with decidedly different priorities than its predecessor.  Businesses that enjoyed the DOL’s more laissez-faire approach to regulation and enforcement over the last four years should continue to keep a close watch on what the agency does in the coming months to implement President Biden’s openly pro-worker agenda.

Proskauer’s Wage and Hour Group is comprised of seasoned litigators who regularly advise the world’s leading companies to help them avoid, minimize, and manage exposure to wage and hour-related risk.  Subscribe to our wage and hour blog to stay current on the latest developments, and check out the latest Biden administration developments impacting employers on Proskauer’s Law and the Workplace blog.

New York State Legalizes Recreational Adult Use of Marijuana

On March 31, 2021, New York Governor Andrew Cuomo signed into law the New York State Cannabis/Marijuana Regulation & Taxation Act, which legalized the use of recreational marijuana for individuals ages 21 and older.

Among other things, the Act establishes a Cannabis Control Board and Office of Cannabis Management that will be responsible for regulating adult-use marijuana and creates a Chief Equity Officer position to be appointed by the Cannabis Control Board. It also allocates significant funding to social equity concerns, expands eligibility for medical marijuana patients and creates licenses for distributors, processors and retailers of recreational cannabis.

Notably for employers, the Act makes clear that it is not intended to limit the authority of any employer to enact or enforce policies relating to cannabis in the workplace.  The Act also amends section 201-d of the New York Labor Law (NYLL), which prohibits discrimination because of an individual’s lawful outside work activities, to include cannabis use in accordance with state law.  However, an employer would not be in violation of the law if it takes action related to the use of cannabis based on the following:

  • the employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal government mandate;
  • the employee is impaired by the use of cannabis, meaning the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health law; or
  • the employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.

The Act takes effect immediately upon signing, though cannabis sales will not begin until the Cannabis Control Board is formed and state officials draft regulations that will control the market (including how the Office of Cannabis Management would award licenses and assess taxes).  Based on this, state lawmakers are estimating it could take up to two years for cannabis sales to begin.  We will continue to report on any further developments with regard to this law.

Business Groups Challenge Biden Administration’s Delay of Trump-era Independent Contractor Rule

In a complaint filed on March 26, 2021, business groups challenged a U.S. Department of Labor March 4, 2021 final rule to delay the effective date of the Trump-era regulation on independent contractor classification.  As we previously reported, that Trump-era rule, which was finalized two weeks before President Biden took office, was initially scheduled to take effect on March 8, 2021 but was then delayed until May 7, 2021.

The business groups argue that the DOL, in violation of the Administrative Procedure Act’s notice and comment rulemaking requirements, failed to provide a meaningful comment period before enacting the March 4, 2021 final rule to delay the rule’s effective date.  The business groups also allege that the DOL failed to offer substantive justification in enacting the final rule to delay and acted arbitrarily and capriciously.  The lawsuit seeks a declaratory judgment declaring the March 4, 2021 final rule to delay invalid, a permanent injunction against the final rule to delay, and a declaration that the rule went into effect on March 8, 2021.

The business groups further argue that the DOL Wage and Hour Division’s March 11, 2021 Notice of Proposed Rulemaking (“NPRM”), which subsequently withdrew the delayed Trump-era independent contractor rule, should be withdrawn.  The business groups assert that because the NPRM seeking to withdraw the independent contractor rule relies upon the improper March 4, 2021 final rule to delay, the NPRM itself is invalid.

It’s certainly not uncommon for an incoming Presidential administration to freeze lame-duck regulatory activity initiated by an outgoing administration from another political party; for an incoming administration to revoke and revise legacy rulemaking; and for stakeholders to challenge rulemaking through litigation.  We’ll continue to monitor the activity around the federal independent contractor rule, which many businesses across the country are following with keen interest.

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Proskauer’s Wage and Hour Group is comprised of seasoned litigators who regularly advise the world’s leading companies to help them avoid, minimize, and manage exposure to wage and hour-related risk.  Subscribe to our wage and hour blog to stay current on the latest developments, and check out the latest Biden administration developments impacting employers on Proskauer’s Law and the Workplace blog.

EEOC Announces Employers Have Until July 19, 2021 to make their 2019 and 2020 EEO-1 Submissions

On March 29, 2021, the US Equal Employment Opportunity Commission (EEOC) announced data collection for the EEO-1 Component 1 filing will open on April 26, 2021, and employers will have until July 19, 2021 to make their submissions. Because last year’s EEO-1 submission was suspended due to the COVID-19 pandemic, employers are required to make two submissions: one with 2019 and one with 2020 EEO-1 data.

Employers with 100 or more employees (and federal contractors with 50 or more employees) must file the EEO-1 Component 1 each year. The filing provides demographic information, including race and gender, of the employer’s workforce.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

New York State Issues Guidance on COVID-19 Vaccine Leave Law

The New York State Department of Labor (“NYSDOL”) has issued guidance on the State’s recently enacted COVID-19 vaccine leave law, which went into effect on March 12, 2021.  As we previously reported, the law requires employers to provide employees with “a sufficient period of time, not to exceed four hours” per dose to be vaccinated for COVID-19. Leave must be paid at the employee’s regular rate of pay and cannot be charged against other leave accruals.

The NYSDOL’s guidance addresses and clarifies a number of details about the new law. Below are the key takeaways:

  • Use of Leave and Employee Coverage: Paid leave is only available for an employee’s own receipt of a COVID-19 vaccine. The law does not provide leave to allow an employee to assist a relative or other person to receive a vaccine. Neither the law nor the guidance addresses the law’s application to part-time employees. However, because the law refers to “every employee,” employers should consider erring on the side of caution and provide leave to both part-time and full-time employees.
  • Amount of Leave: The maximum number of leave hours that an employee is entitled to depends on the number of required COVID-19 vaccine injections. If a COVID-19 vaccine requires two injections, then the employee would be entitled to two periods of paid leave of up to four hours each (eight hours in total).
  • Retroactive Application: The law does not create any retroactive benefit rights. Therefore, only employees who were vaccinated on or after March 12, 2021 are eligible for paid leave. However, nothing in the law prevents employers from voluntarily providing employees with such benefits retroactively.
  • Notice and Documentation Requirements: According to the guidance, the law does not prevent an employer from requiring notice or proof of vaccination in order to claim this paid period of leave. However, the guidance cautions employers to “consider any confidentiality requirements applicable to such records prior to requesting proof of vaccination.”
  • Unionized Employers: The rights afforded to employees under this law may be waived by a collective bargaining agreement. However, the agreement must specifically reference section 196-c of the New York Labor Law.

New York’s COVID-19 vaccine law remains in effect until December 31, 2022. We will continue to report on any further developments with regard to this law and other similar leave laws nationwide.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

 

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