Between shifting safer-at-home orders, evolving workplace safety measures, increased employee attention on diversity and inclusion, and a steady stream of regulatory guidance from governments around the world, employers are looking for the most up-to-date information to stay agile while adhering to the new rules.
To respond to the coronavirus (COVID-19) pandemic, increased employee social activism, and a mobile workforce, the US Department of Labor, Occupational Safety and Health Administration, and National Labor Relations Board have issued multiple versions of paid leave policies, worker safety guidelines, and employee status rules, among others. Employers are looking for guidance on how to sync up the responses of their legal departments and HR teams to best keep employees safe, engaged, and compliant.
After a sluggish year in 2020 for mergers and acquisitions among hospitals and health systems, 2021 has shown renewed vigor and is poised for considerable transactional activity.
Governor Andrew Cuomo announced on June 15 that the State of New York reached its goal of 70% of adult New Yorkers receiving at least one dose of a COVID-19 vaccine.
The UK’s Employment Appeal Tribunal (EAT) found on 10 June 2021 in Maya Forstater v CGD Europe and others that gender-critical beliefs—including believing that one’s biological sex is immutable and not to be conflated with gender identity—did qualify for protection under the Equality Act 2010 (Equality Act).
The Occupational Safety and Health Administration (OSHA) issued important updates to its COVID-19 guidance for employers on June 10. To start, the long-awaited COVID-19 Emergency Temporary Standard (ETS) is effective immediately, but it only applies to employers in healthcare and healthcare support services settings. Employers covered by the ETS have 14 days (from the date that the ETS is published in the Federal Register, which could be any day now) to comply with most provisions, and 30 days (also from the date of publication in the Federal Register) to comply with the provisions related to physical barriers, ventilation, and training.
In another reversal, on June 9 the California Division of Occupational Safety and Health (Cal/OSHA) Standards Board unanimously voted to withdraw the “Readopted” Emergency Temporary Standards that it had approved just six days earlier, while the California Department of Public Health (DPH) previewed new face mask guidance that aligns with the Centers for Disease Control and Prevention’s (CDC’s) face mask guidance and will take effect June 15. In addition, the health department from Los Angeles County—the county with the largest population and with the highest number of COVID-19 cases and deaths in the state since the pandemic began—announced that it will adopt the state DPH guidance except that employers must adhere to Cal/OSHA standards.
On June 8, 2021, the New York State Department of Health released updated interim guidance for office-based workplaces that removes significant prior restrictions. This new guidance comes on the heels of Governor Andrew Cuomo’s recent announcement that once 70% of adult New Yorkers have received at least the first dose of the COVID-19 vaccine, almost all applicable guidance will become optional, except that unvaccinated individuals still need to wear face coverings and maintain social distancing. According to Governor Cuomo, New York is expected to hit the 70% threshold during the week of June 14, if not earlier.
The UK Employment Appeal Tribunal (EAT) handed down its judgment in Mrs F Mercer v. Alternative Future Group Ltd. and Others on 2 June 2021. The EAT found that the relevant provisions in UK legislation protecting workers against detriment related to taking part in independent trade union activities ought to be construed as if such activity includes participation in industrial action.
At a Standards Board meeting on June 3, 2021, the California Division of Occupational Safety and Health (Cal/OSHA) “readopted” its COVID-19 Prevention Emergency Temporary Standards with revisions as published on May 28.
Morgan Lewis senior attorney Pierce Blue spoke with HR Magazine after the Occupational Safety and Health Administration (OSHA) issued its COVID-19 emergency temporary standards.
Partner Jon Snare was quoted in The Associated Press after the Occupational Safety and Health Administration (OSHA) issued important updates to its COVID-19 emergency temporary standards.
Morgan Lewis partners Jason Mills and Daryl Landy spoke with The Recorder after California state regulators rescinded COVID-19 workplace safety rules.
Partners Daryl Landy and Jason Mills spoke with the Daily Journal regarding Cal/OSHA’s adoption of revised COVID-19 workplace safety standards.
Associate Alana Genderson was quoted in an HR Dive article about the US Equal Employment Opportunity Commission’s (EEOC’s) updated technical guidance related to COVID-19 vaccines.
Morgan Lewis senior attorney Pierce Blue and associates Alana Genderson and Daniel Kadish authored an article for Law360 after the US Equal Employment Opportunity Commission released an update to its technical assistance guidance on COVID-19 and the Americans with Disabilities Act, the Rehabilitation Act, and other federal equal employment opportunity laws.
Morgan Lewis partner Louise Skinner was interviewed by Eddie Mair on LBC Radio about the prospect of making COVID-19 vaccinations compulsory for care home staff.
Morgan Lewis senior attorney Pierce Blue was quoted in an HR Drive article after the US Equal Employment Opportunity Commission (EEOC) published an update to its technical assistance guidance on COVID-19 and the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, and other related laws.
Partners Matthew Hawes and Elizabeth Goldberg provided their insights to PlanSponsor regarding the US Department of Labor’s (DOL’s) release of its first cybersecurity guide for ERISA plans. Under the new guidelines, the DOL indicates that protecting participant information is a fiduciary issue and that plans have a responsibility to address them.
Morgan Lewis partner Klair Fitzpatrick was quoted in a Bloomberg Law article about the potential legal risks of segregating vaccinated and unvaccinated employees in the workplace. “Workers can refuse the jab based on disability or religious belief, so employers could then face allegations of bias against those workers if they suffer negative consequences as a result of being segregated," Klair said in the article.
Senior attorney Pierce Blue was quoted in an HR Magazine article that discussed how companies can approach employees’ COVID-19 vaccination status. Pierce said that “employers should continue to pay close attention to updated rules and guidelines coming from federal, state and local agencies."
Partner Jonathan Snare was quoted in a Bloomberg Law article regarding the Occupational Safety and Health Administration’s (OSHA’s) standard for workplace protection in light of the Centers for Disease Control and Prevention’s (CDC’s) new mask guidelines for vaccinated workers.
Morgan Lewis partners Susan Harthill, Elizabeth Goldberg, and Eleanor Pelta authored an article for International Employment Lawyer about early policy changes from the Biden-Harris administration that affect the workplace, including actions addressing multi-employer plans, diversity training, and immigration laws.
Morgan Lewis senior attorney Pierce Blue was quoted in an article by HR Magazine explaining some of the confusion caused by the US Centers for Disease Control and Prevention (CDC) guidance relaxing many of its COVID-19 safety measures for those who have been vaccinated.
Partner Eleanor Pelta spoke to Bloomberg Law about the H-1B visa program, which saw record filings for the 2022 lottery.
Associate Daniel Kadish was quoted by SHRM in an article about challenges for employers as much of the workforce continues to work remotely during the pandemic.
Morgan Lewis partner Russell Bruch was quoted in a Law360 article about the Fair Labor Standards Act's (FLSA’s) administrative exemption.
A recent Investment News article referenced a Morgan Lewis LawFlash, which discussed the US Department of Labor’s issuance of three pieces of subregulatory guidance addressing the cybersecurity practices of retirement plan sponsors, vendors, and plan participants.
Morgan Lewis partner and former DOL deputy solicitor for national operations Susan Harthill was quoted by Law360 in an article concerning President Biden’s efforts to chart a different course from that of his predecessor on employment policy. Susan told Law360, “basically, the entire [Trump] executive order and agency actions, whether that be enforcement or investigations or any proposed rulemaking, [have] all just been completely abandoned at this point."
A Washington Post article quoting associate Daniel Kadish was quoted in a Computer World article about potential employer questions when considering mandatory COVID-19 vaccinations.
Partner Daryl Landy spoke with HR Today about California’s paid sick leave mandates amid the COVID-19 pandemic. In the article, Daryl discussed the expansion of the benefits under SB 95, the latest regulation.
Associate Daniel Kadish spoke with HR Magazine about the role of vaccination cards in the workplace. In the article, Daniel discussed tips for employers if employees lose their vaccination cards, as well as other scenarios.
Associate Lauren Groebe spoke with Bloomberg Law about the privacy concerns around potential COVID-19 vaccine passports. “From a confidence standpoint, it’s important the consumers are in charge of what information they’re giving to the vaccine passport,” said Lauren in the article.
Partner Louise Skinner and associate Will Mallin co-authored an article for International Employment Lawyer about a new directive proposed by the European Commission on March 4, 2021, which called for pay transparency to ensure that women and men in the European Union receive equal pay for the same work or work of equal value.
Partner Eleanor Pelta spoke with International Employment Lawyer about the Biden-Harris administration’s decision to allow the Trump-era “wealth test” order to lapse.
Morgan Lewis partner Klair Fitzpatrick and associate Daniel Kadish were quoted by HR Magazine in an article about mask policies in the workplace.
Partner Eleanor Pelta spoke with Law360 about the Biden-Harris administration’s decision to permit individuals to reapply if they were denied H-1B, H-2B, J, and L temporary visas under the Trump administration.
A LawFlash authored by partners Susan Harthill and Russell Bruch and associate Elizabeth Johnston was cited in an EHS Today article about the Biden-Harris administration’s Department of Labor (DOL) and potential actions regarding independent contractor and joint employment issues. The LawFlash details the DOL’s proposal to eliminate the Trump era’s two signature rules regarding the issue.
In a recent Law360 article, partner Eleanor Pelta discussed the expiration of the Trump administration’s Proclamation 10052 and the benefits the expiration presents multinational companies. "
Morgan Lewis partner Eleanor Pelta was quoted in a Bloomberg Law article about the visa application backlog caused by the COVID-19 pandemic. In the piece, she discussed the economic ramifications.
Morgan Lewis partner Phil Miscimarra authored an article for International Employment Lawyer, where he discusses the recently adopted Protecting the Right to Organize Act (PRO Act). If passed, the PRO Act is set to make substantial changes to US labor laws and in this article Phil explains how the changes could affect employers.
Partner Sharon Masling was interviewed by NJ Spotlight News about a new state law that opens the door to employer-mandated vaccinations before allowing employees to return to work.
Morgan Lewis partner Jonathan Zimmerman spoke with Law360 about the new COBRA subsidies introduced by the American Rescue Plan Act (ARPA). The passage of ARPA means that eligible employees who were laid off or had a reduction in hours as a result of COVID-19 can stay on their workplaces health plans for free within the extended 18 months of coverage from COBRA.
Of counsel Sage Fattahian was quoted in an HR Magazine article about the implications of the American Rescue Plan Act of 2021 for employers.
Morgan Lewis partner Eleanor Pelta’s pro bono representation of advocacy groups opposed to the Trump administration’s immigration-related “wealth test” was highlighted in a recent NJ Today article.
Morgan Lewis partner Eleanor Pelta was quoted in an International Employment Lawyer article about the Biden administration’s decision not to defend a Trump era “public charge” policy before the US Supreme Court. The rule allowed for education, English-language skills, and current wealth to be considered when determining an individual’s eligibility for residency.
Morgan Lewis partner Jacqueline Aguilera was quoted in an HR Magazine article about the COVID-19-related questions that are top of mind for employers.
Morgan Lewis partner Louise Skinner was quoted by International Employment Lawyer in an article about conducting employee investigations while businesses are operating remotely. In the piece, Louise shares some best practices for employers to overcome any obstacles in conducting investigations while everyone is working from home.
A blog post authored by partner Elizabeth Goldberg and associate Lauren Sullivan was cited in an HR Magazine article about the US Department of Labor’s (DOL’s) decision to not enforce a Trump administration guideline that limited the use of environmental, social, and governance (ESG) criteria when selecting retirement plan investments.
Partner Grace Speights discussed how employers are working to create diverse, inclusive, and equitable workplaces.
Morgan Lewis associate Daniel Kadish spoke with the Washington Post about the potential for employers to compel employees to be vaccinated. “The thought process is the vaccine stops people from having severe illness or developing severe complications from COVID-19, and so it could help the individual from becoming a direct threat to themselves or others in the workplace,” said Dan.
Associate Emily Cuneo DeSmedt spoke with HR Magazine about the recently reintroduced Pregnant Workers Fairness Act, which could update required accommodations for pregnant workers. The bill was reintroduced in the US House of Representatives in February, and if it passes, “employers would need to amend their existing reasonable accommodation policies to clarify that they apply to employees who are pregnant, have pregnancy-related conditions or have recently given birth,” said Emily.
In a recent International Employment Lawyer article, Morgan Lewis associate Daniel Kadish discussed the issues employers are considering around requiring employees to receive a COVID-19 vaccine.
Partner Susan Harthill spoke with Law360 about the recent decision made by the US Department of Labor’s (DOL’s) Wage and Hour division to withdraw an opinion letter on worker classification that was issued during the Trump administration
Partner Susan Harthill was quoted by HR Magazine discussing how the Biden administration’s decision to lift certain limits on the US Department of Labor issuing subregulatory guidance will provide more flexibility for the agency. Discussing the practicalities of subregulatory guidance,
Morgan Lewis partners Louise Skinner and Lee Harding authored an article for Employee Benefits about the UK government’s spending review. The spending review, which is due to come into force in April 2021, gained particular attention this year due to the financial impact of the pandemic. In the article, Louise and Lee detail the financial measures that have been put in place to help support long-term unemployed people, and explain what public service spending will look like after April.
Partner Sharon Masling was quoted in a Bloomberg Law article about more employers offering financial incentives in exchange for their employees getting the COVID-19 vaccine. The quickly evolving situation touches on a number of areas in employment law, including health privacy laws and the Americans with Disabilities Act (ADA).
Morgan Lewis partner Susan Harthill was quoted in an HR Magazine article about the latest guidance on worker safety COVID-19 protection programs issued by the Occupational Safety and Health Administration (OSHA).
Morgan Lewis partner Lee Harding and associate Will Mallin co-authored an article for Employment Law Journal about a recent High Court judgement, which held that the UK government failed to extend health and safety protections to “limb b” workers.
Partner Susan Harthill was quoted in an HR Dive article about the Occupational Safety and Health Administration’s guidance that requires vaccinated workers to continue to take cautionary measures to prevent the further spread of COVID-19.
Partner Jonathan Snare spoke with Law360 about new guidance from the Occupational Safety and Health Administration (OSHA) that requires vaccinated workers to continue to wear masks and take other measures to prevent the spread of COVID-19.
Partner Sharon Masling spoke with The Washington Post about the potential interaction of COVID-19 vaccine screening questions and the American with Disabilities Act.
Daniel Kadish was quoted in an HR Dive article about compliance issues for employers that are seeing a largely remote workforce. In the piece, he discussed the changes to paid leave law and expense reimbursements. Daniel also outlined best practices for navigating compliance risks.
Partner Susan Harthill was quoted by HR Magazine in an article about the Biden administration’s request to freeze all proposed and pending regulations.
Senior director Timothy Lynch spoke with Law360 about potential legislative changes to union pension plans. “Clearly, with the Democratic control in the Senate, that makes it a lot easier," said Tim in the article.
Partner Saghi Fattahian and associate Lindsay Goodman were quoted in an SHRM article about the Mental Health Parity and Addiction Equity Act (MHPAEA) compliance requirements under the 2021 Consolidated Appropriations Act, which was enacted on December 27.
Morgan Lewis partner Elizabeth Goldberg spoke with Law360 article about the US Department of Labor’s recently issued guidance on what retirement fund managers are to do when they lose track of beneficiaries.
Morgan Lewis partner Eleanor Pelta discussed the US Department of Labor’s immigration rule, which will raise the required wages for workers on high-skilled visas with Law360.
Morgan Lewis partner Sharon Masling discussed the future of remote working as part of a series of 2021 predictions collated by Legaltech News. Sharon, a director of the firm’s workplace culture consulting group, said, “Although vaccines offer some hope for returning to a pre-pandemic in-person work environment, remote work has become the new normal and employees increasingly expect to have remote work flexibility.”
Senior Director of Morgan Lewis’s Washington Strategic Government Relations and Counseling Practice Timothy Lynch spoke with Law360 about the union pension issues the US Congress and incoming Biden administration are expected to address in 2021.
Partners Sharon Perley Masling, Carrie Gonell, and Cosimo Zavaglia and associate Daniel Kadish authored a Bloomberg Law article about the legal issues concerning employees who are working remotely from other states and jurisdictions to which they relocated for the long term because of COVID-19.
Morgan Lewis partner Sharon Perley Masling spoke with The Washington Post for an article about the likely implications of COVID-19 on the 2021 workplace.
Morgan Lewis partner Sharon Perley Masling spoke with Bloomberg Law about the legal questions for employers around mandating the COVID-19 vaccine. “Whether to mandate the vaccine is obviously an industry-by-industry and employer-by-employer decision,” said Sharon. “In most cases, however, our clients are deciding to strongly encourage their employees to get the vaccine rather than require them to do so while the vaccine is under an EUA.”
Partner Sharon Perley Masling was quoted in a Boston Globe article about best practices for employers seeking for their workforce to get the COVID-19 vaccine.
Morgan Lewis partner Jonathan Zimmerman spoke with Law360 for an article about the impact the COVID-19 pandemic has had on employee benefits. In the article, he discussed the approaches employers are taking in regard to unused paid vacation time including 401 (k) contributions.
Morgan Lewis partner Sharon Masling spoke with CBS News about the Equal Employment Opportunity Commission’s recently released guidance that employers can mandate employees be vaccinated for COVID-19 in certain circumstances.
Morgan Lewis partner Susan Harthill spoke with Law360 about the increase in the amount of paid sick leave offered by companies across industries at varied levels.
Morgan Lewis partner Sharon Perley Masling spoke with the HuffPost about the potential for employers to require employees to get a COVID-19 vaccine. “Most clients right now are leaning toward encouraging rather than requiring the vaccine, just because there are still so many unanswered questions,” said Sharon in the article. “I think it is wise for employers to start planning, but those plans are going to be revised as we get more information.
Partner Jonathan Snare and associate Alana Genderson spoke with HR Magazine for an article about what employers may expect regarding enforcement by the Occupational Safety and Health Administration (OSHA) under a Biden administration.
Morgan Lewis partner Sharon Perley Masling spoke with The Washington Post about the unanswered questions employers are facing regarding a potential COVID-19 vaccine.
Morgan Lewis partners Susan Harthill, Jennifer Breen, and Kenneth Polite authored a Law360 article about the pace of personnel changes that could result in federal agencies under a Biden administration.
Morgan Lewis of counsel Kimberley Lunetta and associates Alana Genderson and Daniel Kadish’s BOMA New York presentation, “Minimizing General & Employment Law Liability,” was featured in a recent Real Estate Weekly article.
Morgan Lewis partner Jonathan Snare spoke with Business Insurance for an article about coronavirus (COVID-19)-related safety protocols.
Partner Julie Stapel spoke with Pensions & Investments about the potential implications of a Biden administration on recent proposals from the US Department of Labor (DOL) related to the ERISA fiduciary rule. Julie noted that the current proposal for the fiduciary rule "gets close enough to what the more liberal thinkers at the DOL were hoping for."
Morgan Lewis partner Susan Harthill was quoted in an HR Dive article about a potential extension of the Families First Coronavirus Response Act’s (FFCRA's) leave provisions, which has been stalled in the US Congress.
Partners Althea Day, Randall Tracht, and Johnathan Zimmerman authored a Pratt’s Energy Law Report article about the challenges energy companies face as they return to “normal” operations amid the coronavirus (COVID-19) pandemic.
Morgan Lewis partner Chai Feldblum spoke with Reuters about the firm’s new workplace government relations and regulation practice. In the article, Chai, one of the group’s co-leaders, discussed how the team is helping clients navigate the widespread regulatory and legal challenges they are facing amid the pandemic.
Morgan Lewis partner Louise Skinner authored an article for CityWorks that provides guidance for employers about how to best support parents during the pandemic.
Morgan Lewis partner Jonathan Snare was quoted in an article by SHRM about the Occupational Safety and Health Administration's (OSHA's) clarification on the reporting rules for potential coronavirus (COVID-19) cases at work.
Morgan Lewis partners Craig Bitman, Daniel Kleinman, and Michael Richman and associate Michael Gorman authored a Bloomberg Tax article about the SECURE Act and the US Department of Labor’s proposed regulations for the registration process of pooled plan providers, which was released on September 1, 2020. In the article, they discuss the proposed process, supplemental filings, and what companies need to know next.
Morgan Lewis partners Ami Wynne, Jocelyn Cuttino, Chai Feldblum, and Sharon Perley Masling discussed the need for business leaders to create a workplace culture that instills safety and respect among all employees in a recent Bloomberg Law article.
Morgan Lewis partners and co-directors of Workplace Culture Consulting Chai Feldblum and Sharon Masling authored a Bloomberg Law article about the efforts being made by proactive employers in the wake of the #MeToo movement. In the article, Chai and Sharon discuss emerging themes and best practices.