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California’s Wage Statement Law Applies to Interstate Transportation Workers

On February 2, 2021, the Ninth Circuit Court of Appeals issued a decision that affects all California employers that employ interstate transportation workers.  In Ward v. United Airlines, the court held that federal law did not prevent California’s wage statement law from applying to pilots and flight attendants who are based in California, spend most of their time working outside of California, and do not work a majority of the time in any one state.  Specifically, the court rejected arguments based on three sources of federal law: the dormant Commerce Clause, the Airline Deregulation Act, and the Railway Labor Act.

The dormant Commerce Clause limits the states’ authority to enact or enforce laws that burden interstate commerce, even in the absence of legislation by Congress. State laws that discriminate against or directly regulate interstate commerce are virtually per se invalid, while non-discriminatory laws that have only incidental effects on interstate commerce will generally be upheld unless the burden on interstate commerce is clearly excessive in relation to the putative local benefits.  The Ninth Circuit held that California’s wage statement law does not discriminate against interstate commerce, because the law applies to employers evenhandedly whether they are based inside or outside

Coronavirus (UK): Is ‘long-covid’ likely to be classed as a disability under the Equality Act?

This post considers whether ‘long-covid’ is likely to be classed as a disability under the Equality Act 2010, and provides practical guidance for employers.

At the time of writing, it is estimated that approximately 100 million people have now contracted Coronavirus. Whilst the majority of those infected go on to make a full recovery, some suffer continuing symptoms once the initial infection has gone. These symptoms are commonly referred to as “long-covid”. According to the NHS, some of the most commonly encountered symptoms of long-covid include; (i) extreme tiredness; (ii) shortness of breath; and (iii) problems with memory and concentration. A recent study estimated that there are currently 60,000 people in the United Kingdom alone suffering from long-covid.

Ultimately, some of those suffering from long-term health conditions may be classed as disabled under the Equality Act 2010 (“EQA”). This article considers the circumstances in which long-covid would classified as a disability under the EQA.

Definition of a disability under the EQA

The EQA prohibits discrimination in respect of numerous protected characteristics, including disability. Section 6 and Schedule 1 of the EQA define a “disability”. It is important to note that the legal definition of disability does not always reflect what

U.S. COVID-19: OSHA Issues Guidance Addressing Mitigation and Prevention of COVID-19 in the Workplace

Partner and Practice Group Leader, Energy, Environment and Infrastructure, Bryan Keyt; Partner Brandon Neuschafer; and Associate David Brankin wrote an article on OSHA’s new guidance to help employers better identify risks of being exposed to and/or contracting COVID-19 and to ascertain appropriate control measures employers can implement to address those risks.

Click here to read the full article.

Coronavirus (US): Key vaccination issues for employers – Part 3

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 3 of the three-part article, we address more of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(Click here to see Part 1, questions 1-6 and Part 2, questions 7-12)

(13) Should employers have a written policy or program? What about training?

Yes and yes

Coronavirus (US): Key vaccination issues for employers – Part 2

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 2 of the three-part article, we address more of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(Click here to see Part 1, questions 1-6.)

(7) What must an employer do if an employee refuses vaccination for a reason that requires a reasonable accommodation analysis (e.g.

UK HR Two Minute Monthly: post-termination restrictions; discrimination and victimisation claims; right to respect for private life

February 2, 2021

Categories

Our January update considers recent developments in employment law, including cases on post-termination restrictions, interim relief for discrimination and victimisation claims, and the right to respect private life. We also outline other points of note, including the government confirming it will no longer review EU-derived employment laws.

Former employer’s post-termination restrictive covenants were unlawful restraint of trade

The High Court has held that the non-compete, non-solicitation and non-dealing clauses found in a former employee’s contract were invalid because they went further than necessary. The claimant, a financial advisory business, alleged that the employee had breached her post-termination restrictions by working for a competitor. The restrictions included a non-competition restriction which prevented the employee, for a 9 month period, from engaging in any undertaking providing the same kind of financial advisory services she provided (save for geographical areas unrelated to the claimant’s business). The non-solicitation and non-dealing covenants sought to prevent the defendant, for a 12 month period, from supplying relevant financial advisory services to customers or solicit customers who had been a client of the claimant during the 18 months prior to termination of her employment.

Aside from ruling in favour of the claimant in relation to other aspects of

Coronavirus (US): Key vaccination issues for employers – Part 1

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 1 of the three-part article, we address six of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(1) May an employer require employees who will be present on company property to obtain a vaccine when it becomes readily available to the general public?

Generally, yes; provided that

New OFCCP Director Appointment Signals Renewed Focus on Pay Discrimination

President Biden’s appointment of Jenny Yang to Director of the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) on his first day in office signals a new direction in federal equal employment opportunity enforcement.  Prior to this appointment, Director Yang had a career as a plaintiff’s attorney before being appointed to Chair of the Equal Employment Opportunity Commission (“EEOC”) under the Obama administration.  Notably, during Director Yang’s time as Chair of the EEOC, the agency introduced a highly contested requirement for employers to disclose certain employee pay data when filing EEO-1 Reports.

We expect that many of the Biden administration’s equal employment initiatives, including a renewed emphasis on pay discrimination, will be vetted through the OFCCP by Director Yang.  The EEOC may not experience as much of an immediate sea change since the Republican EEOC commissioners will remain in place through 2022.

Importantly, the OFCCP has the authority to audit private employers’ hiring and pay practices if the employer falls within the agency’s jurisdiction, which is broadly defined and applies to approximately 25% of private employers.  For example, a private employer is a government contractor or a subcontractor under the OFCCP’s jurisdiction if it has 50 or more

Coronavirus (UK): 10 key vaccination issues for employers

1. Can an employer require an employee to be vaccinated?

No.  The Public Health (Control of Disease) Act 1984 provides that individuals must not be compelled to undergo any mandatory medical treatment or vaccination.  In addition, employees may have the protection of Article 8 of the European Convention on Human Rights which provides that individuals have the right to not be physically or psychologically interfered with.  Furthermore, any forced vaccination is likely to amount to a criminal offence.

ACAS guidance advises that employers should support staff in getting the vaccine, but cannot force them to be vaccinated.

2. What are the discrimination risks associated with vaccination?

Discrimination issues may arise either as a result of compelling employees to take the vaccine or putting in place measures which are detrimental to those employees who have not taken the vaccine.

The two key risks are likely to be disability discrimination (where an employee is unable to get the vaccine because of a health condition) and religious or philosophical belief discrimination (where, for example, there may be concerns for vegan employees due to animal testing on the vaccines).

3. What impact will vaccination have on the COVID-secure workplace?

As well as the fact

For the New Year, Colorado Makes COVID-19 the Gift That Keeps Giving (Paid Time Off)

On the night before Christmas Eve, the Colorado Department of Labor and Employment (CDLE) issued a surprise opinion that Colorado employers are required to provide still more paid sick leave for COVID-19 in 2021.  In its Interpretive Notice & Formal Opinion #6C (INFO #6C), CDLE opined that all Colorado employers would be required, as of January 1, 2021, to grant employees up to 80 more hours of paid sick leave for COVID-related absences pursuant to the Healthy Families and Workplaces Act (HFWA).  INFO #6C can be found here.

Background:

  • In response to COVID-19, Section 406 of the HFWA required all Colorado employers, in 2020, to provide the Emergency Paid Sick Leave described in the federal Families First Coronavirus Response Act (FFCRA), without regard to the coverage provisions of the FFCRA. As a result, in 2020, Colorado employers of all sizes were required to provide up to 80 hours of paid sick leave for certain COVID-related absences described in the FFCRA.  That requirement under Section 406 expired with 2020.
  • To address possible future pandemics, the Colorado General Assembly also included Section 405 in the HFWA. Under Section 405, “on the date a public health emergency is declared, each employer
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