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Emily Schifter

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Emily is a partner in the Labor + Employment Practice Group, where she represents clients in a variety of labor and employment-related matters, including employment discrimination, leave, disability accommodation, and wage and hour litigation. Additionally, she counsels employers on many aspects of employment law and human resources issues, including employee handbooks, policies and restrictive covenants drafted under various states’ laws for a variety of circumstances, including as part of mergers and acquisitions.

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Q: Does the Speak Out Act affect employer nondisclosure and nondisparagement agreements?

A: Nearly five months after Senator Kirsten Gillibrand (D-NY) first introduced the bipartisan Speak Out Act, President Joe Biden signed it into law on December 7, 2022. The Speak Out Act bars judicial enforcement of nondisclosure and nondisparagement clauses concerning sexual assault and sexual harassment allegations if entered into “before the dispute arises.” This ensures that “victims and survivors have the freedom to report and publicly disclose their abuse,” while still allowing employers to use nondisclosure and nondisparagement clauses in resolving a dispute once it has arisen.

Q: What do employers need to know about state and local pay transparency and salary equity laws?

A: Pay equity has been a hot topic for employers over the last few years and it continues to make headlines. Today, March 8, is International Women’s Day and March 15 marks this year’s “Equal Pay Day” – a date meant to symbolize how far into the year women must work to earn what men earned in the previous year.

Q: Did the U.S. Supreme Court issue a ruling in the challenge to OSHA’s vaccine and testing emergency temporary standard (ETS) and CMS interim final rule (IFR)?

A: Yes. On January 13, the Court granted the applications for stays of the OSHA ETS. Conversely, the Court granted the federal government’s request to overturn the injunctions that had halted the IFR.

Q. What is the status of the Sixth Circuit’s consideration of the challenges to the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS), and how does it impact the upcoming deadlines set by the ETS?

A. As discussed in our previous alert, on November 5, OSHA published an ETS that would require private employers with 100 or more employees to establish, by January 4, 2022 either (1) a mandatory COVID-19 vaccination policy; or (2) a vaccination policy that requires employees to either be fully vaccinated or undergo regular COVID-19 testing and wear a face covering at work. The ETS would also require covered employers, by December 6, to: (1) determine the vaccination status of all employees; (2) provide leave for them to get vaccinated and recover from side effects of vaccination; and (3) ensure unvaccinated employees wear face coverings at work. Multiple challenges were filed over the ETS after OSHA’s issuance of the ETS, and, on November 16, the U.S. Court of Appeals for the Sixth Circuit was selected by lottery to hear the consolidated challenges to OSHA’s recent ETS, including the Fifth Circuit’s extension of a nationwide stay of the ETS on November 12.

Q: What do employers need to know about recent state and local laws providing for protections for gig workers?

A: Employers and businesses are likely familiar with recent changes to rescind more employer-friendly, Trump-era FLSA regulations governing independent contractor classification and joint employment status, which we previously covered. However, employers may be less familiar with various new laws being passed or considered by cities and states that provide additional protections specific to “gig” workers — i.e., those independent contractors who perform “on-demand” services.

Q: Now that DOL-OSHA announced its COVID-19 vaccine ETS for private-sector workers, what does my company need to do to adhere to the guidelines?

A: On November 4, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced an emergency temporary standard (ETS), containing the anticipated COVID-19 vaccination rule covering private companies with 100 or more employees. The ETS became effective immediately on November 5 upon its publication in the Federal Register. On November 6, the Fifth Circuit Federal Court of Appeals granted an emergency motion to stay enforcement of the ETS effectively nationwide, pending further action by the court, which could come as early as November 9 at 6 p.m. ET. Other challenges to the ETS’s enforcement have been filed in the Eighth, Sixth, and Eleventh circuits thus far.

Q: What do employers need to know about the Biden administration’s new vaccine mandate?

A: Following the Biden administration’s September 9 announcement, employers are brimming with questions about the forthcoming White House COVID-19 vaccination mandate plan. Must all employers mandate the vaccine? Which employees are covered? When will the requirements take effect? What steps should employers take now to prepare? These and many other questions are yet to have complete answers. With the new rules expected to impact as many as 100 million workers (and with them, a significant number of businesses), employers should begin to prepare as soon as possible. Here’s what we know and what employers need to consider.

Q: Are there any state laws employers should think about when implementing COVID-19 vaccine policies?

A: Yes, multiple states have passed or are considering laws related to COVID-19 vaccine policies.

Savvy employers tracking the latest guidance likely know the many sources of federal guidance pertaining to COVID-19 vaccines in the workplace. For instance, the Centers for Disease Control and Prevention (CDC) made headlines with its May 13 guidance loosening face mask and distancing restrictions for fully vaccinated individuals, as did the Equal Employment Opportunity Commission (EEOC) with its updated COVID-19 vaccine Q&As. Just recently, the Occupational Safety and Health Administration (OSHA) announced an emergency temporary standard for health care employers and updated guidance for employers in other sectors. As if that wasn’t enough, multiple states also have passed laws impacting employers looking to implement a COVID-19 vaccination program.

Q: What Does the $1.9 Trillion American Rescue Plan Mean for Employers?

A: On March 11, nearly a year after the enactment of the Families First Coronavirus Response Act (FFCRA) and CARES Act, and three months after the enactment of the Consolidated Appropriations Act of 2021, President Biden signed a sweeping $1.9 trillion stimulus package called the American Rescue Plan. The headline-grabbing elements of the American Rescue Plan include $1,400 direct payments to individuals earning below a certain income threshold, $160 billion for COVID-19 vaccine and testing programs, and $360 billion for aid to state, local, and territorial governments. Critical to employers, the American Rescue Plan once again extends federal unemployment insurance benefits and modifies employee entitlement to COVID-19-related leave under the FFCRA.