ONE LITTLE FEDERAL AGENCY GOT JUST WHAT IT WANTED FOR XMAS: AND CHECK OUT WHAT ELSE SANTA HAS IN HIS SLEIGH FOR 2022

By Mark F. Kluger and William H. Healey

Late on Friday, a 6th Circuit panel of judges could be heard shouting ho, ho, ho after dropping a shiny new Emergency Temporary Standard (“ETS”) down OSHA’s chimney. The ETS, enforceable throughout the land, requires all employers with 100+ employees to impose a “be vaccinated or test and mask” policy. Although the original deadlines remain in effect: December 6 all employers needed to have the policy in place and by January 4, 2022 employees must be fully vaccinated or start testing and masking, OSHA was visited by 4 ghosts Friday night. The next morning, the agency issued the following statement:

To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

Don’t worry, we’ve got what you need to get you in compliance. In the meantime, the states that sued and got the ETS stayed originally, are inquiring about the 6th Circuit’s return policy.

NEW YEARS’ EMPLOYMENT LAW GIFTS

This coming year will be about more than just vaccine mandates. Let’s look at what burdensome and redundant new laws employers will need to comply with in 2022….and one year-end holiday tale to reward you for slogging through this with us.

Forms

Did you remember to change your FMLA and I-9 forms? Well just like changing your underwear, every once in a while you need to change your FMLA and I-9 Forms. The old FMLA forms expired August 31, 2021 and the new ones that you should be using have a 6/30/23 expiration date. You’ll know that your Form I-9 is fresh and new if it has a 10/31/22 expiration date in the upper right corner.

New Jersey

You may recall that in the last few years, the legislature and Governor have this bug up their thing about independent contractors—they don’t like ‘em and they won’t let you have them. What that means is the state’s cracked down on employers for misclassifying as independent contractors those who really should be treated as employees. Back in July, one new law passed, giving the NJDOL the authority to issue stop work orders to employers with misclassified workers and requiring employers to pay all employees for up to 10 days of lost wages during the stoppage or $5,000 a day until the violations are rectified if work doesn’t stop. Another July law created the Office of Strategic Enforcement and Compliance. Remember this is Jersey. You  don’t wanna comply? They’ve got ways to strategically enforce. Bada bing. Bada boom!

Let’s face it, what really bugs the state about misclassification is the lost revenue from Unemployment and Disability Insurance premium payments and the lack of cash flow from income tax withholding. So a new misclass law effective January 1, 2022 makes misclassifying employees as ICs a violation of the Insurance Fraud Prevention Act. In other words—it’s insurance fraud. The penalties include $5,000 for the first violation, $10,000 for the second, and $15,000 for each subsequent violation and the AG can pursue criminal prosecution at its discretion—potentially leading to one of those awkward prison cell conversations starting with what are you in for? Misclassification of independent contractors doesn’t garner much street cred.

New York

The City and the State Elves have been very busy in their workshops cooking up lots of new laws in time for the holidays.

Pandemic

On December 6, the Big Mouth Apple Mayor announced a mandatory vaccination policy for the employees of all private sector employers in the City to be effective December 27. The specifics were spilled on December 15 and are relatively straight forward. By December 27, every private sector employer in NYC must have a policy in place requiring all employees coming to in-person work to provide proof of at least one dose of a COVID-19 vaccine. Employers must collect and keep a record of the vax status and within 45 days must have documented proof of the second dose for those not getting the J&J. Employees can seek medical and religious exemptions and employers must document and maintain records of those granted and why, including any docs submitted by the employees. Those decisions involve lots of legal landmines so don’t try this at home folks. Leave those calls to the professionals. No later than 2 days after Santa comes, NYC employers must also post an affirmation of compliance at each work site.

In the meantime, on December 10 the Governor issued a mandatory statewide masking requirement for all unvaccinated employees and customers of indoor public businesses starting December 13, 2021 through January 15, 2022. Businesses are required to seek proof of full vaccination in order to allow anyone to be mask-free.

NYC Human Rights Law

The city has amended its law against employment discrimination to add domestic workers to those protected under the local law. If you are going to fire the housekeeper or the butler for that matter, do it before March 13, 2022 when the law takes effect.

Electronic Monitoring

A new law signed on November 8, 2021, requires that beginning on May 7, 2022, all NYS employers must post a notice describing any electronic monitoring of employee communications in which the employer engages. The notice must advise employees that they may be monitored in and on any of the of following:

Any and all telephone conversations…electronic mail…or internet access or usage by any employee by any electronic device or system, including…the use of a computer, telephone, wire, radio or electromagnetic, photoeletronic or photo-optical systems…at any and all times and by any lawful means.

We don’t know about you, but we haven’t used our electromagnetic, photoeletronic or photo-optical systems since back in the days when we were secret agents. That stuff is so 1984. The notice must be provided to all new hires who must sign acknowledging receipt. Existing employees are on their own apparently although you must post the notice in a conspicuous location so you can watch and listen to how they react using your  photoeletronic system. Fines for failure to comply start at $500 and rise to $3,000.

Whistleblowers

Starting on January 26, 2022, whistleblower protection under NY law will be extended to both independent contractors and former employees. That’s right folks, 2 categories of people who don’t even work for you, will soon be able to blow the whistle on you and have legal protection if you retaliate against them.

Paid Family Leave

An amendment effective January 1, 2022, to the NYS Paid Family Leave law clarifies that eligible employees who work at least 5 days a week are eligible to take up to 60 intermittent paid family leave days a year. Oh joy! Thanks for the clarification Albany!

So here’s one last tale we’d like to leave you with as 2021 draws to end.

On December 6, the CEO of Better.com held a  Zoom call and announced, If you’re on this call, you are part of the unlucky group that is being laid off. There were 900 unlucky souls on that call. The media went wild vilifying the CEO. We will concede that with 19 shopping days left, any termination isn’t good form. 900 is a lot of bad form. But over Zoom, which seems to be the biggest gripe….ah how quickly pandemic time flies. In late March 2020 (do you know where you were?) the startup scooter company The Bird was getting the bird from the world for being the first company to do a virtual, but very real, mass reduction in force. And the crowds went wild. But the critique there was not only the termination of 406 loyal birdies but that they were all muted and the termination was done by a disembodied voice reading a script. So by comparison, didn’t Better.com do better?

The CEO did the talking, showed his face and acknowledged that the employees were unlucky. That’s some real compassion there. But here’s the other thing. In May 2020, Uber also did a mass RIF by Zoom, letting 3,500 employees learn their fate on camera in front of a live studio audience. So that’s like more than 3x worse than Better.com and yet nobody stopped taking those Ubers, which of course beats taking the bus, especially when you don’t know if the guy sitting next to you has the bug. Anyway, the moral of our little Christmas tale is that there is no good way to do a mass termination during a pandemic. What are you supposed to do, make everyone get a Q-tip up their nose and if not sick, come to a big conference room or stadium and then tell them?

Our wish for 2022, is that we leave all of these pandemic traditions and new ways of doing things behind us; that no matter what we do, we get to do it in person. Most importantly for all of you, we wish you good health, happiness and that you enjoy the holidays with all of those you care most about!