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Jessica regularly counsels businesses on employment policies and practices, including employee handbooks, employment agreements, restrictive covenants, privacy matters, performance management, family and medical leaves, disability accommodations, sexual harassment, wage and hour compliance, independent contractor misclassification and employment separations. She also regularly represents employers before federal and state courts and administrative agencies in matters involving allegations of employment discrimination, wrongful termination, retaliation, breach of contract, workplace torts, and wage and hour violations on an individual and class action basis, as well as non-competes and disputes involving confidential information.

Q: Has New York City provided any additional details on the employer vaccination mandate?

A: As we previously discussed, effective December 27, all private employers in New York City will be required to implement a vaccine mandate for their employees. The policy must provide that all employees who work in-person in a workplace with other co-workers are required to have at least one dose by December 27.

Employers must complete an Affirmation of Compliance with Workplace Vaccination Requirements (available here) and post the completed affirmation in a public place.
Continue Reading NYC Releases Guidance on December 27 Vaccination Mandate

Q: I heard New York City just announced an employer vaccination mandate. What do I need to know?

A: On December 6, Mayor Bill de Blasio announced that effective December 27, all private employers in New York City will be required to implement a vaccine mandate for their employees. Employers will be required to implement a policy under which all employees who work in-person in a workplace with other co-workers are required to have at least one dose by December 27. Although many details have not yet been announced, based on Mayor de Blasio’s comments thus far, no alternate testing option is expected. The mandate is expected to affect approximately 184,000 businesses in New York City.
Continue Reading NYC Implements Employer Vaccination Mandate Effective December 27

Q: I understand the NY DOL recently released model plans for the NY HERO Act. What do employers need to do to comply?

A: The New York Health and Essential Rights Act (NY HERO Act or Act) requires employers to implement workplace health and safety measures to protect employees during a future airborne infectious disease outbreak. The Act applies to all private employers and to all worksites.


Continue Reading New York DOL Releases Model Plans Under HERO Act

This article was originally published by the EACCNY. It is republished here with permission.

Authors
Jessica Rothenberg, Associate, Troutman Pepper
Dr. Tobias Polloczek, Partner, CMS Hasche Sigle
Dr. Justus Redeker, Partner, CMS Hasche Sigle

As COVID-19 vaccination roll-outs become more widespread in the United States and the European Union, employers should proactively consider the impact of vaccinations on return to work policies and practices. The extent to which employers are allowed to dictate vaccination policies varies by country, and the practical approaches employers are taking also varies by country. This article discusses key aspects of the legal landscape for workplace vaccination policies in the U.S. and the EU,[1] as well as important practical considerations. For more details on the legal situation regarding vaccination and testing in the individual EU member states, please also see the recently published “CMS Expert Guide to Vaccination and Testing for Employers.”
Continue Reading COVID-19 Vaccination in the EU and the U.S.: The Employer Perspective

Q: I understand the New York Department of Labor recently released guidance interpreting the New York State Sick Leave Law. What are the key takeaways? Did the guidance answer the questions left open by the legislation?

A: As discussed in our previous post, the New York Sick Leave Law (NYSLL) went into effect on September 30 for accrual purposes, and employees may start using the sick leave on January 1, 2021. The New York Department of Labor recently issued general guidance on its website, and also issued an FAQ document (referred to together as “guidance” for purposes of this post).

Despite the volume of material released, the guidance does not clearly address most of the key questions left open by the NYSLL.  Instead, the guidance focuses on topics already covered in the text of the law (e.g., the definition of family member) and on relatively straightforward questions, such as whether an individual may use sick leave for routine dentist and eye doctor appointments (which is allowed because those are considered preventative medical care).


Continue Reading New York Releases Guidance on Paid Sick Leave; Key Questions Remain Unanswered

Q: I heard New York State recently enacted another sick leave law. I thought New York already enacted a COVID-19 sick leave law back in March. How is this new one different?

A: Effective September 30, 2020, New York will have two separate sick leave laws: one specific to COVID-19 (NY COVID-19 Sick Leave Law), and one that is general (New York Sick Leave Law). The covered reasons for leave are more expansive under the New York Sick Leave Law. In addition, unlike the NY COVID-19 Sick Leave Law, which is expected to expire at the end of the pandemic, the New York Sick Leave Law is expected to be permanent.

While employees start accruing New York Sick Leave on September 30, 2020, they may not use the sick leave until January 1, 2021.
Continue Reading New York Sick Leave Goes Into Effect on September 30, 2020

Q: My Company’s standard employment settlement agreement includes a no-rehire provision. Can I continue to include that provision for California employees?

A: If the agreement settles an employment dispute with an “aggrieved person,” you may no longer include a no re-hire provision in the agreement for California employees. Assembly Bill No. 749 (“AB 749”), which amends the California Code of Civil Procedure, became effective January 1, 2020 and provides that if an unlawful no-rehire provision is included in a settlement agreement, the provision is void as a matter of law. An “aggrieved person” is defined as a person who has filed a claim against the employer in court, before an administrative agency, in an alternative dispute forum, or through the employer’s internal complaint process.
Continue Reading California Now Prohibits No-Rehire Provisions in Certain Employee Settlement Agreements

Q: I heard New York is changing its rules around tip credits for some types of employees. What do I need to know?

A:  A tip credit is a concept permitted under the Fair Labor Standards Act (“FLSA”) and many state laws.  A tip credit allows employers to pay employees a cash wage of less than the minimum wage and take a tip credit up to a set amount.  For example, under the FLSA, employers can pay tipped employees a minimum cash wage of $2.13 per hour, and take a tip credit of $5.12 per hour.  If employees receive less than $5.12 an hour in tips, the employer must pay the employee the difference so that an employee always earns at least $7.25 (the minimum wage) per hour.  Regardless of whether an employer takes a tip credit, all tips are the property of the employee.  So, if an employer takes a tip credit and the employee makes more than $5.12 per hour in tips, the additional amount belongs to the tipped employee.
Continue Reading New York State To Eliminate Tip Credit For Many Employees Beginning June 2020

Q: I heard New York prohibits employers from discriminating based on hairstyle. What does that mean?

A: In July 2019, New York State passed legislation that amended the definition of race under the New York State Human Rights Law (“NYSHRL”) to include “traits historically associated with race, including, but not limited to, hair texture and