North America

CMS Reverses Position and Will Begin Enforcement of Health Care Staff Vaccine Requirement

Reversing its prior position, CMS announced on December 28, 2021, that it would begin enforcement of the COVID-19 vaccine requirement, established by the interim final rule, published November 05, 2021, in 25 states and the District of Columbia[1] in a phased approach beginning January 27, 2022. With the announcement CMS issued guidance for surveyors regarding enforcement in S&C Memo QSO 22-07-ALL (“Memo”), describing how CMS will enforce the rule and how facilities that are non-compliant may avoid enforcement action if meeting certain threshold criteria during periods up to 90 days after issuance of the Memo as follows:

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Time Is Money: A Quick Wage-Hour Tip on … Did You Remember to Make Necessary Changes to Comply with New 2022 State and Local Wage-Hour Laws?

December is not the shortest month of the year, but it always seems to go by the fastest.

And with holidays and vacations, not to mention employees working remotely, it’s not unusual for matters to be put off until the new year — or for a project or two to fall through the cracks.

Often times, there are no real consequences if a project gets pushed off into the new year.

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Cap on Intermittent New York Paid Family Leave Eliminated Effective January 1, 2022

Earlier this year, the New York State Workers’ Compensation Board adopted amendments to the regulations for the New York Paid Family Leave Benefits Law clarifying that when Paid Family Leave (PFL) is taken intermittently, the maximum number of intermittent leave days an employee may take is based on the average number of days the employee works per week.

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New York Adopts Rules Clarifying Sick Leave Law

On December 22, 2021, the New York Department of Labor (“DOL”) adopted rules (“Rules”) implementing the state’s sick leave law (NY Labor Law §196-b, or the “Sick Leave Law”), providing long-awaited clarification of the Sick Leave Law, which went into effect over a year ago on September 30, 2020. The Rules, codified as Section 196 to Title 12 of the NYCRR, were proposed on December 9, 2020, and adopted without change. In addition to providing definitions of terms used in the Sick Leave Law, the Rules address three topics: (i) documentation an employer may require to verify an employee’s eligibility to use sick leave; (ii) how to count the number of employees an employer has for the purposes of determining employees’ sick leave entitlement; and (iii) how to calculate an employee’s accrual of sick leave. In addition, the DOL’s response to public comments it received after the Rule was proposed, explain how carryover of accrued unused sick leave works.

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Rare Hearing by the Supreme Court as to Stays in Vaccine Mandate Cases

On the evening of Wednesday, December 22, 2021, the Supreme Court of the United States announced that it will hold a special session on January 7, 2022, to hear oral argument in cases concerning whether two Biden administration vaccine mandates should be stayed. One is an interim final rule promulgated by the Centers for Medicare and Medicaid Services (“CMS”); the other is an Emergency Temporary Standard (“ETS”) issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”). The CMS interim final rulepresently stayed in 24 states, would require COVID-19 vaccination for staff employed at Medicare and Medicaid certified providers and suppliers. The OSHA ETS, which requires businesses with 100 or more employees to ensure that workers are vaccinated against the coronavirus or otherwise to undergo weekly COVID-19 testing, was allowed to take effect when a divided panel of the United States Court of Appeals for the Sixth Circuit, to which the consolidated challenges had been assigned by the Judicial Panel on Multidistrict Litigation issued a ruling, on December 17, 2021, lifting a stay that had been previously entered by the Fifth Circuit. Multiple private sector litigants and states immediately challenged the decision.

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Best Practices to Protect Against Increased Cyber Threats During the Holiday Season

Recent data thefts and systems intrusions, particularly with respect to ransomware, have assured that cybersecurity is top of mind for corporate executives and compliance officials. We at EBG have tried to keep you up to date with respect to legislative, regulatory and litigation developments and recommended best practices and procedures.

As we close out the year, we all should remain mindful that cyber criminals, especially those who are supported or protected by foreign adversaries, have little incentive to rest up during the holidays.

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Video: Year in Review and a Look Ahead to 2022 – Employment Law This Week

As featured in #WorkforceWednesday This week, we’re recapping some of the biggest changes that impacted employers in 2021. We also look ahead to what’s in store in the new year.

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Massachusetts SJC Finds a Public Policy Exception to Employment At Will Under the State Personnel Records Law

Last week, the Supreme Judicial Court of Massachusetts (“SJC”) unanimously ruled that the state Personnel Records Law, M.G.L. c. 149, § 52C, provides for a public policy exception to employment at will. Writing on behalf of the full panel in Meehan v. Medical Information Technology, Inc., SJC-13117 (Dec. 17, 2021), Justice Kafker held that an employer cannot terminate an at-will employee for exercising his statutory right to file a rebuttal for inclusion in his personnel file, as doing so would constitute wrongful discharge in violation of public policy. This decision provides a significant addition to the list of narrow exceptions to the general rule of employment at will, and is sure to impact the way employers communicate and document personnel issues.

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Illinois appellate court clarifies accrual date of BIPA claims

The Illinois appellate court recently confirmed that a claim under the Illinois Biometric Information Privacy Act (BIPA) accrues each time an individual’s biometric information is scanned or captured.

The case is Watson v. Legacy Healthcare Financial Services, LLC, et al., 2021 IL App (1st) 210279. Watson claimed to have worked as a certified nursing assistant for Legacy Healthcare Financial Services (Legacy), Lincoln Park Skilled Nursing Facility (Lincoln Park), and South Loop Skilled Nursing Facility (South Loop). According to Watson, Legacy owns residential health care services facilities, including Lincoln Park and South Loop, and he worked at Lincoln Park from December 2012 through February 2019 and at South Loop from May 2017 through November 2017. Watson alleged that Defendants committed four separate BIPA violations by requiring him to scan his finger and/or hand at Lincoln Park and South Loop for timekeeping purposes from 2012 through the end of his employment. Read more…

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California Authorities Announce Changes to COVID-19-Related Requirements

On December 13, 2021, the California Department of Public Health (“CDPH”) announced new Guidance for the Use of Face Coverings (“CDPH Guidance”), implementing a mandatory mask mandate for individuals (employees and patrons) in all indoor public settings, irrespective of vaccination status, beginning on December 15, 2021 through at least January 15, 2022.  The CDPH Guidance requires that masks be worn by all individuals over the age of two, unless exempt for disability-related or medical condition-based reasons, and recommends the use of surgical masks or higher-level respirators.

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