The Department of Labor’s Latest Final Rule Publication Regulates Managers Who Receive Tips.

The Wage and Hour Division of the U.S. Department of Labor has published its final rule addressing managers who receive tips and penalties for violations of the Fair Labor Standards Act (FLSA) (the “September Tip Final Rule”). These regulatory amendments will be effective Nov. 23, 2021.

Managers Who Receive Tips

As expected, the Tip Final Rule tracks the 2018 Consolidated Appropriations Act (CCA) by prohibiting managers, supervisors and employers from keeping employees’ tips, and it defines managers and supervisors in line with the executive exemption from overtime. Also as expected, the September Tip Final Rule allows mandatory tip pools to include employees who do not customarily and regularly receive tips if the employer pays all employees in the pool the full minimum wage and does not take a tip credit.

The DOL clarified that managers, supervisors and employers who receive tips could contribute to a tip pool, but they could not receive tips from a tip pool. “[T]he Department adopts changes to its regulations to clarify that, while an employer may not allow a manger or supervisor to keep other employees’ tips by receiving tips from a tip pool or tip sharing arrangement, section 3(m)(2)(B) does not prohibit an employer from requiring a manager [or] supervisor who receives tips directly from customers to contribute some portion of those tips to eligible employees in an employer-mandated tip pooling or tip sharing arrangement.” Even if a manager or supervisor meets the requirements to be paid with a tip credit and to participate in a tip pool, the DOL explained that if they qualified as a manager or supervisor under section, they cannot receive tips from the tip pool or keep other employees’ tips. The DOL also noted that employers could similarly contribute tips to a tip pool. 

A key change is the DOL’s decision to emphasize that supervisors and managers can keep tips only for services that they directly and solely provide. The DOL added the term “solely” in the September Tip Final Rule to “prevent managers and supervisors from keeping tips when it is not possible to attribute the tip solely to the manager or supervisor.” Thus, the supervisors and managers in compliance with the FLSA are not keeping “any portion” of other employees’ tips. As an example, the DOL explains that a manager who “simply runs food to a table for which a server is otherwise responsible” may not keep any portion of the tip left for the server because “that tip was not earned solely by the manager or supervisor.” 

Penalties for Violations of the FLSA

The 2020 Tip Final Rule added to the DOL’s regulations civil money penalties (CMPs) for violation of section 3(m)(2)(B) – the statutory prohibition of employers keeping employees’ tips. See 29 U.S.C. § 216(e)(2) (adding new penalty language to the FLSA). The DOL took issue with the 2020 Tip Final Rule’s limitation of CMPs to only willful or repeated violations of section 3(m)(2)(B). So, the September Tip Final Rule follows the March 25, 2021 NPRM and does not restrict CMPs for violation of section 3(m)(2)(B) to only “repeated or willful” violations. The DOL reasoned that the CCA did not limit the DOL’s power to assess CMPs for violations of section 3(m)(2)(B) to only willful or repeated violations and, instead, granted to the DOL the authority to assess CMPs “as the Secretary determines appropriate.” With these amendments, the DOL has “adopt[ed] the same rules, procedures, and amount considerations for tip CMP assessments as the [DOL] applies for other FLSA CMP assessments, which will promote the goals of consistency and familiarity.” For employers, this means the DOL can assess CMPs when an employer keeps employees’ tips without having to establish the employer’s violation was willful or repeated.

The September Tip Final Rule goes beyond regulation of tipped employees by publishing amendments to the regulations governing when a violation of the FLSA overtime or minimum wage provisions is willful. The September Tip Final Rule amends sections 578.3(c)(2) and 579.2 in accordance with the NPRM so “an employer’s receipt of advice from [the Wage and Hour Division] that its conduct is unlawful is ‘not automatically dispositive’ of a knowing violation . . . and . . . should not ‘automatically subject’ an employer to CMPs where the employer has a legitimate disagreement with the [Wage and Hour Division] concerning the FLSA’s coverage.” But employers should not get too excited, because the amendments also emphasize that other circumstances showing the employer knew its conduct was unlawful can be sufficient to show that a violation is knowing. “All facts and circumstances surrounding the violation must be taken into account when determining willfulness.”

The September Tip Final Rule also defines willfulness to include “reckless disregard of the FLSA.” According to the DOL, these amendments establish that “an employer is in reckless disregard of the FLSA when, among other situations, the Department determines based on all of the facts and circumstances that the employer should have inquired into whether its conduct was lawful but failed to do so adequately.” However, the DOL intended these amendments “to make clear that reckless disregard can be proven by evidence other than that the employer should have inquired further but did not do so adequately.”

Employers should exercise caution when managers or supervisors keep tips received from customers even for services they directly provided, because amended section 531.52(b)(2) does not allow a manager or supervisor to keep such tips if another employee provided services for the same customer. Additionally, while the DOL provided some clarity in the regulations governing CMPs, it also included language the DOL interprets as expanding the scope of evidence that the DOL can use to support a willful violation.

New York Gov. Hochul has signed some of the strictest wage and hour legislation in the country, which will make contractors in the construction industry jointly and severally liable for wages owed to employees of its subcontractors.

On September 6, 2021, New York Governor Kathy Hochul signed into law a bill that will make contractors in the construction industry jointly and severally liable for wages owed to employees of its subcontractors. The groundbreaking new law—which adds new section 198-e to the Labor Law (“§198-e”)—continues the expansion of worker rights under New York’s statutory scheme. Here are the key provisions of the new law:

Scope of Liability. Any contractor entering into a construction contract will assume liability for any wages or debt owed to a worker “incurred by a subcontractor at any tier acting under, by, or for the contractor or its subcontractors for the [worker’s] performance of labor.” Where an action is filed against a subcontractor, the upstream contractor will be “considered jointly and severally liable for any unpaid wages, benefits, wage supplements, and any other remedies” provided under the law. Upstream contractors may be liable not only for the unpaid wages, but also for the claimant’s attorney fees, interest, and liquidated damages under Labor Law Section 198.

Joint Liability Cannot Be Waived…Except by a Union. A contractor’s joint liability for subcontractor wages cannot be waived by agreement or release, except through a collective bargaining agreement. As stated in Labor Law §198-e(10), “[t]he provisions of [§198-e] may be waived by a collective bargaining agreement with a bona fide building and construction trade labor organization which has established itself, and/or its affiliates, as the collective bargaining representative for persons performing work on a project, provided that for such waiver to be valid, it shall explicitly reference [§198-e].”

Who Can Bring a Claim. Claims under §198-e may be brought by a worker or by a third party on the worker’s behalf, including the New York State Attorney General.

Indemnity/Contribution Right. The law makes clear (in Labor Law §198-e(2)) that a contractor can bring legal action against a subcontractor for amounts that the contractor pays to the subcontractor’s employees under §198-e. The law also makes clear (in Labor Law §198-e(7)) that it “shall not be deemed to prohibit a contractor … from establishing by contract or enforcing any other lawful remedies against a subcontractor it hires for liability created by violation of [§198-e], provided that such contract or arrangement does not diminish the right of employees to bring an action under [§198-e].” So while the subcontractor’s employees can sue the upstream contractor directly (in addition to, or instead of, the subcontractor), and while the upstream contractor can be held 100% liable, the upstream contractor can, in turn, sue the subcontractor for anything it is required to pay.

Statute of Limitations. Contractor liability under §198-e is limited to claims that occurred within the 3 years preceding the initiation of the claim. This is shorter than the 6-year statute of limitations that apply to wage claims against “direct” employers.

Information Requests. The new law also adds new section 756-f to the General Business Law (“§ 756-f”), providing that upon request from the upstream contractor, a subcontractor must provide the following information: (1) certified payroll records; (2) the names of all workers on a given project; (3) the name of the contractor’s subcontractor, where applicable; (4) the anticipated contract start date; (5) the scheduled duration of work; (6) local unions for which the subcontractor is a signatory contractor, where applicable; and (7) the name, address, and phone number of a contact for the subcontractor. Per § 756-f(1), “[s]uch payroll records shall contain sufficient information to apprise the contractor … of such subcontractor’s payment status in paying wages and making any applicable fringe or other benefit payments or contributions to a third party on its employee’s behalf.” Under § 756-f(3), an upstream contractor is entitled to withhold payments owed to a subcontractor that fails to provide this information on a timely basis.

Employer Takeaways

As a result of this legislation, contractors should avoid subcontracting with any entity that cannot meet its wage obligations. Separately, to protect themselves, contractors should ensure that their contracts with subcontractors address the following:

• Agreement by the subcontractor to pay all wages, benefits, and wage supplements to their project employees on a timely basis.
• Agreement by the subcontractor to comply with other applicable federal, state, and local wage and hour laws, including those governing frequency and timeliness of pay, wage deductions, the regular rate of pay, wage notices and statements, meal periods, etc.
• Agreement by the subcontractor to comply with any benefits laws (including paid sick leave laws) with respect to project employees.
• Agreement by the subcontractor to certify to the upstream contractor on a periodic basis that it is in compliance with such laws and obligations.
• Agreement by the subcontractor to provide the information listed in § 756-f to the upstream contractor on a regular schedule.
• The upstream contractor’s right to audit the subcontractor’s compliance with all of the foregoing on an as-requested basis.
• Agreement by the subcontractor to indemnify the upstream contractor from “dollar zero” for expenses incurred and amounts paid by the upstream contractor (including attorneys’ fees) in connection with any claims asserted against the upstream contractor under §198-e or otherwise under the Labor Law with respect to the subcontractor’s employees.

Most concerning about the new law is its stark avoidance of any fact-based inquiry into whether the upstream contractor would be considered a joint employer or co-employer of a subcontractor’s employees—a legal issue that ordinarily would control the scope of the upstream contractor’s liability for wages and other employment-related claims. By imposing strict liability on upstream contractors, §198-e effectively shifts wage responsibility to a party (i.e., the upstream contractor) with no direct relationship with—and potentially no control over—the workers at issue.

In view of the mass remote work arrangements that have been implemented in the course of the pandemic, employers will have a tougher time justifying denials of accommodation requests where employees seek to work from home.

As vaccination rates increase and the COVID-19 pandemic subsides, many employers have instructed their employees to return to in-person work. However, in many cases employees have resisted returning to work and have even sought accommodations as a way to avoid returning to work. A recent U.S. Equal Employment Opportunity Commission (EEOC) case illustrates some of the challenging legalities when the interests of the employer collide and diverge with the interests of employees.

Factual Background

On September 7, 2021, the EEOC filed suit in the Northern District of Georgia against ISS Facility Services, Inc. (ISS), a facility management services company. ISS employed Ronisha Moncrief as a Health Safety and Environmental Quality manager in its Georgia office. In early March 2020, Ms. Moncrief was diagnosed with obstructive lung disease. Her doctor recommended that she work from home. The physician completed ISS’s ADA Reasonable Accommodation Request Medical Certification Form.

As the COVID-19 pandemic hit the United States, ISS — like many employers — instructed its employees to work from home. A few months later, in June 2020, ISS required all employees to return to the physical workplace. Ms. Moncrief’s job duties in the workplace included close contact with many employees and sharing a desk with others. As a result, Ms. Moncrief requested an accommodation pursuant to the American with Disabilities Act (ADA). She sought permission to work remotely two days per week and for frequent breaks while working onsite because her lung disease put her at high risk of contracting COVID-19. ISS allegedly denied Ms. Moncrief’s accommodation request and, two months later, terminated her employment, citing “performance issues.”

The EEOC’s suit followed, alleging that ISS failed to accommodate Ms. Moncrief’s disability and retaliated against her for seeking a disability accommodation. The EEOC seeks a permanent injunction enjoining defendant ISS from discriminating against disabled employees and monetary damages for back pay, past and future pecuniary losses, inconvenience, emotional pain and suffering, and punitive damages.

Takeaways for Employers

One takeaway from the ISS suit is that, according to the EEOC, telework may be here to stay for employees with qualifying disabilities. The COVID-19 pandemic forced many employers to allow their employees to telework on a full-time basis. As a result, employers may find it more difficult to credibly claim that telework is not a reasonable accommodation for employees with qualifying disabilities.

Another takeaway is that the EEOC may consider the risk of contracting COVID-19 as a disability that must be accommodated by an employer. Ms. Moncrief’s lung condition did not prevent her from performing her essential job duties. Instead, according to the EEOC complaint, her lung condition presented a heightened risk of her contracting COVID-19. The EEOC claims that heightened risk of a COVID-19 infection entitled Ms. Moncrief to an accommodation, and in her case, a telework arrangement. Relatedly, the EEOC has clarified that individuals with “long COVID” may qualify as disabled under the ADA.

In light of the above, employers should consider the following proactive measures to limit their risk of a disability lawsuit.

• Edit Job Descriptions. Employers should review their written job descriptions to ensure that the descriptions accurately set forth employees’ job duties. For roles that require in-person work, the job descriptions should explain why. Well-drafted job descriptions are often a helpful exhibit for defending an employer’s refusal to allow telework on the basis that teleworking would prevent the employee from performing the primary job duties and/or pose an undue burden to the employer.
• Edit Telework Policies. Employers should also review their telework policies. A well-drafted telework policy should notify employees that teleworking is not intended to be permanent and that the employer may rescind permission to telework at a later time. Where appropriate in light of an employee’s job duties, a telework policy should also remind the employee that one or more of the employee’s job duties requires the employee to be physically present at the job site.
• Review Current Telework Arrangements. When it comes to disability discrimination claims, exceptions to rules often spell trouble for employers. Does your organization permit some but not all employees to telework? If so, are those distinctions based upon job duties? Employers should review whether they are consistently enforcing their return-to-work policies.
• Review Disability Accommodation Procedure. Ensure the process is interactive and has a single reviewer, if feasible. Employers must review each accommodation request on a case-by-case basis and have legitimate reasons as to why one individual’s accommodation request to work from home was approved while another individual’s request was not approved.

NYC’s “Fair Workweek” legislative package that is designed to ensure predictability of schedules and paychecks for workers in the in New York City fast food and retail industries requires employers in these industries to be diligent

On Tuesday, May 30, 2017, New York City Mayor Bill de Blasio signed into law the “Fair Workweek” legislative package that was designed to ensure predictability of schedules and paychecks for workers in the in New York City fast food and retail industries.

The bills were intended to reduce scheduling unpredictability in the fast food and retail industries. Under this legislation, fast food employers must:

• Provide employees written notice of their schedules no less than two weeks in advance.
• Provide new employees a written “good faith” estimate of their weekly hours.
• Offer any new shifts to current employees before hiring new employees.
• Deduct and remit voluntary contributions to advocacy groups at an employee’s written request.

Fast food employers also are prohibited from scheduling employees to work back-to-back shifts that close a restaurant one day and open it the next day if there are fewer than 11 hours between the shifts. If an employee asks for, or consents to, such shifts, employers must pay the employee an additional $100.00.

Also, if a fast food employer makes changes to an employee’s schedule with less than 14 days’ notice, the employer must pay the employee a bonus in addition to their regular compensation which ranges from $10 to $75, with the highest amount being paid for changes that employers make with less than 24 hours’ notice.

For retail employees, New York City retailers with 20 or more employees are prohibited from scheduling their employees for “on call” shifts that require employees to check in with their employers on little to no notice about whether or not they will be working on any given day.

Retail employers also are prohibited from canceling or changing work shifts within 72 hours of the start of the shift, except under specific circumstances such as natural disasters or failure of public utilities.

Finally, retailers must post employees’ schedules at least three days before the beginning of the scheduled work hours.

This package of bills became effective in November, 2017. The New York City’s Office of Labor Policy and Standards, which is part of the Department of Consumer Affairs, will enforce these laws.

These requirements impose significant and burdensome obligations on New York City fast food and retail employers. These employers now have significantly less flexibility with respect to scheduling, which will result in higher costs.

Failure to comply with these requirements can result in significant liability for employers. If the Department of Consumer Affairs determines that an employer has violated these requirements, the employer can be ordered to rescind any discipline issued or reinstate a terminated employee, and it can be liable for back pay, compensatory damages, and penalties ranging from $200 to $3,000 per employee, per violation. In addition, where an employer has exhibited a pattern or practice of such violations, it may face a civil penalty of up to $15,000.

As the U.S. Court of Appeals for the Eleventh Circuit stated, “The [Americans with Disabilities Act] does not require an employer to retain an employee who it believes behaved in a threatening and dangerous way—even if the employee’s major depressive disorder is one reason or the sole reason, that the employee engaged in that behavior.”

In Todd v. Fayette County School District, the school district chose not to renew the contract of a teacher who suffered from major depressive disorder, based on her alleged threats to kill herself and her son, her alleged threats against school administrators, and her alleged overuse of Xanax while at school. She sued the school district, claiming among other things that it discriminated against her based on her disability.

The Eleventh Circuit found that the teacher’s contract had been appropriately terminated based on her misconduct – the threats against herself and others. The Eleventh Circuit noted that the school district had even sought to determine whether it could maintain protocols to prevent the teacher from engaging in similar behavior upon returning to work – although to no avail. Thus, it concluded that the ADA does not “require that employers countenance dangerous misconduct, even if that misconduct is the result of a disability.”

This case supports the more general principle, set forth in long-standing EEOC guidance, that an employer need not excuse an employee from meeting conduct standards because of a disability – although they may need to provide reasonable accommodations to enable the employee to meet those standards. And, so long as the conduct standards are job-related and consistent with business necessity and other employees are held to those standards, the employee may be disciplined or even terminated for failing to meet the standards.

Workers terminated for noncompliance with government vaccination mandates cannot collect unemployment insurance, in most cases, according to NYS DOL.

The New York Commissioner of Health had declared, shortly after the healthcare worker vaccination mandate was enacted, that healthcare workers who lose their employment because they refuse to vaccinate would not be eligible for unemployment insurance benefits. The New York State Department of Labor has now updated its website to confirm these principles.

As stated by the Department, “Workers in a healthcare facility, nursing home, or school who voluntarily quit or are terminated for refusing an employer-mandated vaccination will be ineligible for UI absent a valid request for accommodation because these are workplaces where an employer has a compelling interest in such a mandate, especially if they already require other immunizations.”

However, the DOL’s website also states, “a worker who refuses an employer’s directive to get vaccinated may be eligible for UI in some cases if that person’s work has no public exposure and the worker has a compelling reason for refusing to comply with the directive.” Thus, the Department has left open the possibility of granting benefits to some healthcare workers who are terminated due to noncompliance with the vaccination mandate.

For employers engaging in the interactive process with employees who have requested religious exemptions from the vaccination requirements, this article reviewed how employers can prevail on a claim from an employee who is denied an exemption.

Employers who are subject to government vaccination mandates have been raising questions about the process for granting or denying a request for a religious exemption from the vaccination requirements. At a high level, only “sincerely” held religiously-based objections to vaccination are entitled to an exemption. Thus, the employer must initially determine that an employee’s objection to the vaccination mandate is motivated by religious reasons, and not political, medical, or philosophical reasons.

Employers have expressed concern about being sued by employees who are improperly denied a religious exemption. There are some, albeit limited, court decisions that illustrate how employers could prevail in such employment lawsuits.

In Beck v. Williamson College of the Trades et al. (Pa. Com. Pl. Aug. 24, 2021), a student attending a private, post-secondary school in Pennsylvania brought suit in state court against the school, alleging religious discrimination, among other things, based on the school’s failure to provide him an exemption from its vaccination policy based on his religious beliefs. The student, who identifies as Catholic, claimed that his objection to the COVID-19 vaccine was based on a sincerely held religious belief that the vaccines were developed from aborted fetal cell lines and that receiving any of the vaccines would compromise his ability to act in a way consistent with his Catholic faith. (This same argument has frequently been cited by home care aides seeking a religious exemption). The student sought immediate relief from the court to allow him to continue his studies at the school without having to comply with its vaccination policy.

On September 14, the court denied the student’s request for immediate relief, and instead, upheld the school’s decision to deny the student’s request for exemption from its vaccination policy. As relevant to home care, in analyzing his religious discrimination claim, the court explained that the student failed to establish that his belief — from which the objection to the vaccines derives — was both sincerely held and religious. The court also found that the student failed to show a discriminatory reason for the school’s decision to require him to obtain the vaccine.

According to the court, the student could not show a sincerely held religious belief given his acknowledgment that he had previously (within the past two years and prior to matriculating at the school) obtained vaccinations with origins that he knew were similar to those of the COVID-19 vaccines. The MMR vaccine, which many home care healthcare personnel are required to obtain as a condition of working in home care are such examples.

The court also observed that the student’s religious discrimination claim appeared to be a more “global,” rather than religious, objection to “unprecedented restrictions on basic human freedoms” created by the COVID-19 pandemic.

Finally, the court explained that, even assuming the student’s objection to being vaccinated was based on a sincerely held religious belief, the school had a lawful, nondiscriminatory reason for its policy — to protect the health and safety of its students and staff during a global pandemic and to better ensure the continued operations of the school. The school showed that it had applied its policy in the same manner to all students regardless of the identity or faith of those who requested an exemption. The court also found lawful the school’s policy, which required requests for religious exemption to include (1) a statement of published doctrine from the student’s religious group indicating that the vaccines violated the student’s religious beliefs; and (2) a statement from a spiritual leader of the local place of worship indicating that the student was a member of that faith.

The Beck decision, although not binding in New York, is reasonable, consistent with precedent and, thus, likely to be cited by New York courts. Employers that are increasingly facing pressure from MLTCs, landlords and other contractual partners to vaccinate their workforce (without any religious or medical exemptions being permitted) should take note of the Beck analysis in structuring their religious exemption process. Doing so could mitigate employers’ exposure to employment claims from employees who are denied an exemption.

In another non-employment case with employment impact, the U.S. Supreme Court reiterated that only a plaintiff who has suffered concrete harm may bring suit for damages under the Fair Credit Reporting Act (FCRA) – the federal law governing background checks, including for employment purposes. Nonetheless, this case serves to remind employers of the need to comply with the technical requirements of FCRA.

Under FCRA, if employers use a third-party provider to conduct a background check (i.e., consumer report or investigative consumer report), there are certain required notices and communications. Over the years, there have been numerous lawsuits against employers for failure to comply with FCRA’s strict notice and/or disclosure requirements. In many instances, employees challenged technical violations – some on behalf of a class – even though no actual harm was experienced. This led to the Supreme Court’s 2016 decision in Spokeo Inc. v. Robins, in which it held that, in order to sue under FCRA, a plaintiff must establish that they have suffered “concrete” harm – meaning real injury, and not simply a “bare procedural violation.” The Supreme Court has now reiterated this position in the non-employment case of TransUnion LLC v. Ramirez.

Although it is good news for employers that they will avoid liability if there is no tangible harm (like economic or reputational damages), nonetheless they should still ensure compliance with FCRA’s technical requirements in order to avoid the possibility of such liability – and also the aggravation and expense of defending against a lawsuit regardless of the merits. These requirements are as follows:

General Notice Requirements. Under FCRA, a “consumer report” is any communication containing information about an individual’s credit history, character, general reputation, personal characteristics, or mode of living. An “investigative consumer report” is a consumer report in which information is obtained, at least in part, through personal interviews with neighbors, friends, or associates. These reports include credit checks, criminal background checks, reference checks, educational checks, driving records checks, and social media checks.

When any consumer report or investigative consumer report is being procured for employment purposes, the employer is obliged to provide the following notices and certifications to the applicant/employee:

1. Provide the applicant/employee with a clear and conspicuous written advance disclosure in a stand-alone document, stating that a consumer report or investigative consumer report may be obtained for employment purposes.
2. Obtain the applicant’s/employee’s written authorization for the procurement of the consumer report or investigative consumer report, which may be combined with the stand-alone document referred to in the prior paragraph.
3. Certify, to the entity providing the report, that the company has complied with the above notice requirements and that the information from the report will not be used in violation of any applicable federal or state equal employment opportunity law or regulation.
4. If the report is going to be used as the basis, in whole or in part, for any adverse employment action (such as a refusal to hire or a decision to terminate), provide the applicant/employee with a pre-adverse action notice letter, along with a copy of both the report and a copy of the Consumer Financial Protection Bureau (“CFPB”) publication entitled “A Summary of Your Rights Under the Fair Credit Reporting Act” before taking the action.
5. After waiting a “reasonable” amount of time (not specified by the statute or the CFPB), advise the applicant/employee of the adverse employment action. We recommend at least 5 business days. The letter must explain the adverse action, provide the name and contact information for the consumer reporting agency, state that the consumer reporting agency did not make the decision to take the adverse action and will not be able to provide an explanation for the action, state that the individual has the right to request a free copy of the report from the agency within 60 days, and state that the individual has the right to dispute with the agency the accuracy or completeness of the information in the report.

Additional Requirements for Investigative Consumer Reports.

1. Sometime before but not later than three days after requesting a report, provide the applicant/employee with written disclosure that an investigative consumer report may be obtained. Note that this requirement is satisfied by the initial disclosure/authorization form referenced above, which is provided to the applicant/employee before requesting the report.
2. The disclosure must include a statement that the investigative consumer report may include information about the individual’s character, general reputation, personal characteristics, or mode of living.
3. The disclosure must inform the applicant/employee of his/her right to request a complete and accurate disclosure of the nature and scope of the investigation.
4. The disclosure must also inform the individual that the employer is required to make a written disclosure of the nature and scope of the investigation within five days after receiving the individual’s request for disclosure or the date the employer requests the investigative consumer report, whichever is later.
5. With the disclosure, provide a summary of rights as contained in the CFPB publication entitled “A Summary of Your Rights Under the Fair Credit Reporting Act.”
6. Certify, to the entity providing the report that the Company has and will comply with all notice and disclosure requirements for investigative consumer reports, and further certify that the Company will disclose the nature and scope of the investigation to the individual upon request and within the required five-day period.
7. Upon written request by the applicant/employee made within a “reasonable time,” provide complete written disclosure of the nature and scope of the investigation that was requested, within the five-day period noted above.

Special Rules for Employee Investigations. If an employer uses a third-party consumer reporting agency (such as a human resources consulting firm that regularly does investigations) to conduct an investigation into suspected employee misconduct, or compliance with laws, regulations or the employer’s policies, the employer does not need to provide the notices and disclosures or obtain the authorization described above. However, the employer must provide a summary describing the nature and scope of the investigation to the employee if adverse action is taken based on the investigation.

Home care providers in New York, covered by both the Hero Act and the OSHA ETS, have many questions about their obligations under the two laws.

On Labor Day, New York Governor Hochul announced that the COVID-19 resurgence warrants implementing the safety plans required by the New York HERO Act (the “Act”). The Act permits the NYS Commissioner of Health to direct covered employers to activate their Hero Act airborne infectious disease exposure prevention plan (“Plan”) if the Commissioner determines that a highly contagious communicable disease presents a serious risk of harm to the public health. The Act became law as a result of the coronavirus pandemic earlier in 2021. However, it was intended to apply to future outbreaks and, while covered employers were required to adopt Plans (by August 5, 2021) and issue Plans to employees (by September 4, 2021), the Plans were not technically in effect because COVID was, seemingly, under control and there was no highly contagious communicable disease in effect. But now that Governor Hochul has declared a contagious disease to be in effect, many providers have asked, are we required to comply with the Hero Act and, if so, for which workers? Scope of Coverage and Applicability OSHA adopted an emergency temporary standard (the “ETS”) in June 2021 that established workplace safety standards for healthcare providers specifically related to the coronavirus health risks. The Hero Act exempts from coverage employees that are covered by an OSHA standard, even a “temporary” OSHA standard like the ETS. Thus, to the extent an organization or segments of a workplace are covered by OSHA’s ETS, then the Plan requirements of the Hero Act would not apply. Note, however, that once the ETS expires or is revoked, the Hero Act will take effect for those providers who were previously only under OSHA’s ETS. Thus, eventually, all providers in New York will be covered by the Hero Act. The OSHA ETS exempts from coverage “home healthcare settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not present.” Until October 7, 2021, when the vaccination mandate takes effect in New York, this exception to the OSHA ETS requirements is unlikely to apply to LHCSA providers in New York because very few employers have “all employees” fully vaccinated as of today. Thus, at least for the caregiver population of LHCSAs, the OSHA ETS is now in effect. This means that the Hero Act Plans do not have to be activated for the caregivers. Providers are reminded, however, to ensure that they are complying with the ETS requirements. The OSHA ETS further provides an exemption for “healthcare support services not performed in a healthcare setting (e.g., off-site laundry, off-site medical billing).” Thus, it appears that LHCSA office settings are exempt from coverage of the OSHA ETS. That would also mean, however, that the LHCSA offices and office employees are covered by the Hero Act. Turning to fiscal intermediaries, due to a very specific definition of healthcare services under OSHA’s ETS, it is our opinion that fiscal intermediary services do not qualify as healthcare services under the OSHA ETS. Thus, we have taken the position that the ETS does not apply to personal assistants. However, the Hero Act appears to apply. As discussed in prior alerts, the Hero Act has a broad definition of employee, employer, and work site. Employee is defined in the Act as “any person providing services for remuneration…and shall include part-time workers, independent contractors, domestic workers, home care and personal care workers…” The term “employer” in the Act includes “any person, entity, business, corporation…” Thus, even for fiscal intermediaries that are not the employer of the personal assistant, the consumer him or herself would be considered an “employer” of the personal assistant and trigger the Hero Act’s requirements. The Hero Act requires covered employers (such as consumers) to adopt and implement a model plan. Readers will note that there is a general Plan, and a domestic worker Plan, available on the DOL’s website. The Plans are designed, depending on the nature of the worksite. Questions have arisen whether the Act will apply to consumers’ homes, because worksite is defined as “any physical space…that has been designated as the location where work is performed over which an employer has the ability to exercise control.” The consumer has the ability to exercise control in his/her home and, thus, this definition does not relieve a consumer employer from compliance with the Hero Act. Moreover, the definition of worksite specifically states that the term “worksite” will include “employer-provided housing…but shall not include the residence of the employer or employee unless such residence has been provided by the employer and is used as the primary place of work…” In the CDPAP, since the residence is provided by the employer (i.e., the consumer) and the home is the primary place of work, the Act would apply. To summarize, based on our review, LHCSAs and FIs should ensure that they have adopted and implemented the Hero Act requirements for their office staff. LHCSAs should ensure that they follow the OSHA ETS for caregivers. Fiscal intermediaries should assist their consumers, as the employer of the personal assistants, to comply with the Hero Act. Even in a joint employer scenario, the Hero Act would seem to apply and require the fiscal intermediary and/or the consumer to adopt the Plans for personal assistants. Effective Dates Note, for the workforce covered by the Hero Act, the initial designation of an airborne disease is currently only effective until September 30, 2021. The Commissioner of Health may extend it at that time. Reminders of Hero Act’s Requirements Now that the Hero Act’s requirements have been activated, covered employers must conduct a verbal review of their policies with the covered employees, employee rights under section 218-b of the NYS Labor Law and their Plan. This review should be done “in a manner most suitable for the prevention of an airborne infectious disease.” Options suggested by the DOL include in-person with good ventilation and face masks or via audio/video conference technology. Employers must also provide a copy of their plan to all employees as implemented. Some employers may need to provide the plan in Spanish to employees for whom that is their primary language. (Additional languages may be required when the DOL provides model plans in that language.) While the airborne infectious disease exposure prevention plan remains in effect, employers must continually ensure that it is adhered to by doing the following: (a) assign enforcement responsibilities to supervisory employees and ensure adequate enforcement; (b) monitor and maintain exposure controls; and (c) regularly check for updated information and guidance from the NYS DOH and the CDC.

Common questions and answers on the COVID-19 vaccine for employers.

Where do mandatory vaccination workplace policies stand in light of (yet) undetermined widespread confirmation of the efficacy and effectiveness of the current COVID-19 vaccines? 

It is permissible to mandate the vaccine, subject to Title VII of the Civil Rights Act (religious accommodation) and Americans with Disabilities Act (ADA) (disability accommodation) issues and parallel state counterparts.

Can employers mandate some employees to get the vaccine and not others (e.g., union versus non-union administrative employees)? 

Having different rules for union versus non-union employees does not violate the National Labor Relations Act, so long as the different treatment isn’t retaliatory or motivated by anti-union animus.

Can employees refuse to return to the workplace indefinitely without a need or request an accommodation given that they have been able to successfully complete their job requirements remotely since the start of the COVID-19 pandemic? Under what circumstances could an employer refuse that request? 

The answer to this question will turn on whether working in the office is an essential function of the job. If yes, then the employee cannot indefinitely work remotely. However, proving that working in the office is an essential function of the job is going to be hard for employers if the employee has spent the past nine months performing their job duties well remotely.

EEOC guidance seems to suggest that not all workplaces would be viewed the same under the individualized inquiry framework (e.g., meatpacking versus office setting might be viewed differently in terms of mandatory vaccinations). Is this correct? 

According to the Equal Employment Opportunity Commission (EEOC) guidance, in the context of a mandatory vaccination program, employers should conduct an individualized assessment in determining whether an unvaccinated employee would pose a direct threat at the worksite (e.g., would expose others to the virus at the worksite). Factors such as the type of workplace, the prevalence in the workplace of employees who have already received a COVID-19 vaccination, and the amount of contact that the unvaccinated employee has with others whose vaccination status could be unknown may affect the undue hardship consideration. Employers should therefore consider these factors when engaging in the interactive process to identify workplace accommodation options that do not constitute an undue hardship.

What are the implications if a program is voluntary, but the employer allows for paid time off to get the vaccine from an unrelated third party and agrees to reimburse any out-of-pocket costs (e.g., admin fees)? Are these incentives an Employee Retirement Income Security Act or federal government concern? 

Admin fees may not be charged, so vaccines must be provided at no cost to individuals – whether through a group health plan, Medicare or the Health Insurance Marketplace (the Exchange). Therefore, this approach will not create an Employee Retirement Income Security Act plan.

If an employer provides in-person job safety training, does it have any jurisdiction to require its students (who are all adults) to be vaccinated before they enter its premises? 

No current guidance relates to requiring proof of vaccinations from customers. Current EEOC guidance regarding COVID-19 vaccinations focuses on Title I of the ADA, which governs employment relationships. If a company is considered a place of public accommodation, Title III of the ADA would apply. The EEOC will likely issue Title III guidance as the vaccine becomes more widely available to the US population.

How should employers deal with employee anti-vaccination advocacy on the job, particularly where an employee disseminates misinformation? 

Because purely political objections to a vaccination program are not protected under federal law, an employer is under no obligation to exempt an employee from taking a vaccine simply because the employee is an ‘anti-vaxxer’. Moreover, an employer is generally allowed to limit anti-vaccination misinformation disseminated by an employee and should do so consistent with its discipline policies. However, some states (e.g., California) prohibit employers from taking actions that tend to control or direct their employees’ political activities or affiliations. Therefore, an employer should be careful to communicate to an employee engaging in anti-vaccination advocacy that they are free to do so outside the workplace.

Can employers create a hybrid approach where the program is voluntary, but if employees choose not to get vaccinated, they must work remotely from home? Under current guidance, an employer can implement a hybrid approach if implementing a voluntary vaccine program but requiring employees who are not vaccinated to continue to work remotely.

Can employers advertise that all employees have been vaccinated or would they risk claims from employees that their personal health information has been disclosed? 

Employers should be careful not to disclose employees’ immunization histories as those may be protected from disclosure under state statutory or common law. To minimize the risk of potential claims, employers should consider using broad, general language when ‘advertising’ their mandatory or voluntary vaccination program (e.g., “to ensure a safe environment for employees and customers, the Company has implemented a vaccination program for its employees”).

Will having a third party administer the test on employer property subject the employer to any additional HIPAA regulations? Can employers simply ask whether an employee has been vaccinated? 

Employers may ask about vaccination status without implicating the Health Insurance Portability and Accountability Act (HIPAA).

If an employer vaccine program is voluntary, can an employee refuse to return to the workplace because they are uncomfortable working among employees who may not be vaccinated? 

While general concerns that other employees are not vaccinated may not be protected under the ADA or Title VII, employers should listen to employee concerns and, if they are genuine, explore alternative working arrangements with them, such as continuing to work remotely. Employers should keep in mind that accommodations made for one employee may set a precedent regarding how other employees should be managed in similar situations. In addition, employers should be mindful that if employees come together to protect or refuse to return to work, their concerned efforts could be protected under the National Labor Relations Act.

What sort of governance and protocols would be necessary when reviewing religious exemption requests? 

An employer should engage in the interactive process as it would with any other request for religious accommodation. Generally, an employer should assume that an employee’s request for a religious exemption is based on a sincerely held religious belief, practice, or observance given the broad definition of religion under EEOC guidance. However, if the employer has an objective basis for questioning the sincerity of the particular belief or its religious nature, it may seek additional supporting information from the employee. The employer should then access whether providing a religious exemption would pose an undue hardship on the employer.

Under a mandatory vaccine program (or, likewise, a voluntary program), is there an obligation (or a business reason) to consider requiring a COVID-19 test before coming back to work? 

There is no legal obligation that employers require COVID-19 testing as part of a vaccine program. However, employers may have separate obligations under state or local regulations, orders,, and ordinances to require COVID-19 testing before employees may return to work.

What are the potential workers’ compensation claims relating to possible adverse reactions to a vaccine? Should employers mandate vaccinations? Are employers truly responsible? 

If an employer implements a mandatory vaccine program, the vaccination is considered work-related. Under most state laws, an adverse reaction to a vaccine would fall under workers’ compensation. Employers should check their workers’ compensation policies to determine whether injuries and illnesses from mandated vaccines are covered.

Does it matter whether an employer has different kinds of employees (e.g., back-office versus customer-facing) with different vaccination requirements or incentives? 

Employers may consider whether to implement different vaccination policies with respect to employees in different roles (e.g., those who directly interact with other employees or the public versus those who do not). However, employers should ensure that they are not treating (or appear to be treating) employees differently based on a protected class.