Category: Labor and Employment

On March 3, 2022, President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”), which limits the use of pre-dispute arbitration agreements and class action waivers covering sexual assault and sexual harassment claims. As we had previously written, the Act amends the Federal Arbitration Act (FAA) to give employees who are parties to arbitration agreements with their employers the option of bringing claims of sexual assault or sexual harassment either in arbitration or in court.

The Act amends the FAA to include a new section, which states, in part:

[A]t the election of the person alleging conduct constituting a sexual harassment dispute or a sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no pre-dispute arbitration agreement or pre-dispute joint action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

The Act gives employees the option to invalidate arbitration agreements and class or collective action waivers with respect to sexual assault and sexual harassment claims. This means employees may choose to either arbitrate these claims or pursue them in court regardless of any contractual agreements with their employers.

The Act applies to all claims that arise or accrue after March 3, 2022, regardless of the date of the agreement at issue. The Act, however, does not affect claims that arose or accrued before March 3, 2022.

The Act does not affect otherwise valid arbitration agreements for claims that are not related sexual assault and sexual harassment.

New York City Mayor Adams recently announced that effective March 7, 2022, a number of COVID related restrictions in NYC will be lifted. Indoor venues, including restaurants, will no longer be required to check for proof of vaccination before customers enter. Masks will no longer be required on public school grounds for kindergarten to 12th grade students. However, as we had previously reported, the New York City vaccination mandate, implemented by former Mayor DeBlasio, that has been in effect for all businesses in New York City and potentially applies to fiscal intermediaries, subject to certain exceptions, will continue to be in effect for now. As a reminder, CHHAs and LHCSAs are already covered by the NYS DOH vaccination mandate, which also continues to be in effect.

Congress yesterday passed a bill that would make pre-dispute arbitration agreements and class action waivers covering sexual assault and sexual harassment claims invalid and unenforceable. The bill is headed to President Joe Biden’s desk, and he is expected to sign it. Here, we explain the bill and implications if it becomes law.

By way of background, the bill is titled “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (the “Act”) and it amends the Federal Arbitration Act (FAA) to give employees who are parties to arbitration agreements with their employers the option of bringing their claims of sexual assault or sexual harassment in arbitration or in court. Employers who routinely use arbitration agreements with class action waivers to cover all claims arising out of or related to employment will
know that such waivers generally state that any sexual harassment-type claims must be resolved through individual, confidential, arbitration. The agreements, thus, generally require the employee to utilize arbitration. If enacted, the Act would allow an employee claiming harassment to avoid going through arbitration to resolve their claims. Rather, the employee would have a choice as to whether to pursue claims against their harasser in court or through arbitration.

Employee advocate groups argue that confidential arbitration proceedings limit employees’ abilities to expose abusive employers through public court proceedings. In the wake of the MeToo movement, there have been significant efforts to repeal agreements and laws that, advocates argue, allow employers to “get away with” and cover up harassment claims made against harassing managers.

States like New York have tried to make agreements mandating confidential arbitration unenforceable, but such state restrictions conflicted with the FAA and, thus, are not enforceable. The Act seeks to cure that conflict between the FAA and state laws.

The Act adds a section to the FAA that states, “[A]t the election of the person alleging conduct constituting a sexual harassment dispute or a sexual assault dispute …. no pre-dispute arbitration agreement or pre-dispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”

The Act defines “sexual assault dispute” as “a dispute involving a nonconsensual sexual act or sexual contact” and “sexual harassment dispute” as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” The term “joint-action” waiver includes class and collective action waivers.

The Act further provides that the validity or enforceability of an agreement will be determined by a court rather than an arbitrator, despite the existence of a contractual term to the contrary. Finally, the Act states that it shall apply with respect to any dispute or claim that arises or accrues on or after the date of the Act’s enactment.

Takeaways for Employers
As enacted, the Act seems to apply only to claims that relate to sexual harassment or assault claims, meaning that other types of claims (e.g., wage and hour) could continue to be arbitrated, and that class action waivers of those claims would continue to be valid. Employers should not abandon arbitration agreements with class action waivers as a result of the Act’s anticipated passage.

Employers with arbitration agreements should anticipate more sexual assault and sexual harassment claims being filed in court, rather than arbitration. Employees will likely choose to pursue their sexual harassment claims in a public forum like the courts, in order to exert pressure on the employer to settle early on. While arbitration is not entirely confidential, it is inherently more confidential than litigation in court because of the absence of a public record. However, the new law makes clear that, with respect to
sexual assault and sexual harassment claims, it is up to the employee, not the employer, to decide whether the case is tried in court or in arbitration, regardless of what an arbitration agreement says.

As always, employers should implement risk mitigation efforts aimed at reducing their exposure to harassment claims, including sexual harassment claims. The likely passage of this Act will only raise the stakes for employers who are sued for alleged harassment.

The State Department of Health (DOH) has published on its website self-attesting quarantine and isolation forms that employees may use to demonstrate eligibility for the State’s COVID-19 COVID sick leave pay.

As we have discussed in prior articles, the New York State COVID Sick Leave Law requires employers to provide paid leave for employees who are subject to a mandatory or precautionary order of quarantine or isolation, as well as for employees caring for a minor or dependent child who is required to quarantine. The law requires employees to be subject to “an order” of quarantine or isolation issued by the State of New York, a state or local health department, or any other governmental entity. In issuing the self-attestation forms, the DOH intends for employers to recognize the attestation as if a governmental entity has issued it for purposes of the COVID sick leave pay. Indeed, the Isolation form, for example, specifically states that “This form may be used for Isolation Release or for New York Paid Family Leave COVID-19 claims as if it was an individual Order for Isolation issued by the New York State Department of Health or relevant County’s Commissioner of Health or designee.”

However, the COVID sick leave law itself never contemplated a self-attesting form, even one that is on a government template. The law, as originally enacted, intended for a government entity to certify to an employee’s need for isolation or quarantine. As we have seen over the course of the pandemic, local departments of health (e.g., Nassau County, Onondaga County) and other governmental entities (e.g., NYC) have turned to self-attestation forms in view of practical challenges in issuing individualized quarantine or isolation orders to thousands of individuals per day. The State DOH’s own form now follows those local efforts.

Employers who have been inundated with requests for paid COVID sick leave should carefully consider whether to recognize self-attesting forms for purposes of paid COVID sick leave. While infected or exposed employees should be provided with the necessary time off from work, the question of who pays for that time off is a separate issue. As we have discussed in the past, COVID sick leave is an independent standalone sick leave benefit that must be paid out to an isolating or quarantining employee, and the employer cannot utilize the employee’s vacation or other PTO accruals for COVID sick leave.

If you have any questions about paid time off requirements related to employees who have been exposed or who are infected with COVID, please let us know.

The U.S. Supreme Court has just ruled that OSHA’s ETS regulation, which would have required companies with 100 or more employees to vaccinate or test their employees weekly, is stayed from enforcement (see the decision here). However, the Supreme Court upheld, narrowly, the CMS Regulation that applies to certain Medicare certified healthcare providers and requires them to vaccinate their staff.

We are reading the decisions now and will provide more information about the Court’s rationale shortly. In the meantime, here is the upshot on these decisions as they affect home care providers in New York State:

The OSHA regulation – had it gone into effect – would have applied to fiscal intermediaries and personal assistants that are jointly employed by the consumer and the intermediary would have been covered by OSHA’s regulation. The OSHA regulation would not have superseded the stricter requirements of the Department of Health, however, which already apply to LHCSAs, CHHAs, and other covered healthcare personnel in New York (excluding personal assistants). Thus, for the time being, New York fiscal intermediaries do not have to be concerned about vaccination or weekly testing requirements for their personal assistants in accordance with the OSHA rule. As a reminder, however, absent any exceptions, New York City fiscal intermediaries remain subject to the New York City vaccination mandate. It will
be interesting to see whether, with this Supreme Court ruling on the OSHA ETS, a challenge will be successfully filed to invalidated the New York City vaccination rule.

The CMS regulation that has been upheld by the Supreme Court technically applies to New York CHHAs only (not FIs, and not LHCSAs). The regulation allows covered providers to grant reasonable accommodations to staff who cannot vaccinate due to religious or medical reasons. However, due to the State’s Department of Health vaccination mandate, covered personnel of CHHAs will be required to comply with the stricter, more protective, mandates of the Department.

If you have any questions about these developments, please let us know.

The highest court in the nation is scheduled to hear oral arguments today at 10 am as to
whether the OSHA and CMS regulations are lawful. The oral arguments can be heard live at
https://www.supremecourt.gov/oral_arguments/live.aspx Although no decision is issued from
the bench (i.e., no decision today!), a written decision is expected shortly after the oral
arguments and the arguments themselves could provide a strong showing of how the high
court is likely to rule on this important issue for healthcare providers and employers with 100
or more employees. Based on some strongly worded dissents in other cases, we are almost
certain as to how some of the conservative Justices will vote, but nothing is final until the
written decision comes out.

Our office has learned of several instances where providers were erroneously told that the
New York State COVID-19 paid leave has expired and, as a consequence, their employees have not been paid the unique COVID sick pay.

To be clear, the federal FFCRA regulations, which had required businesses with less than 500 employees to provide paid COVID sick leave, expired at the end of September 2021. The FFCRA allowed businesses that provided paid COVID sick leave to receive a payroll tax credit, with certain limits, for
provision of such time off. However, the New York State paid COVID leave – which has been in effect since March 2020 – has not expired.

Thus, New York employees who have an order to isolate or quarantine are eligible for pay for their leave. Large New York employers (defined to include companies with more than 100 employees) must provide such paid leave without accessing the employee’s regular PTO or sick time accruals. And, now, due to the FFCRA’s expiration, there is no payroll tax credit to offset the employer’s payment and provision of such paid COVID sick leave to its employees.

Separately, as a reminder, employees who need to take time off to care for a minor dependent child with COVID or that is in quarantine, or for another qualifying family member, may be eligible for NY Paid Family Leave benefits.

The New York City Council passed a bill amending its Earned Safe and Sick Time Act to require all private-sector employers to provide employees with 4 hours of paid COVID-19 child vaccination leave for each of their children, per vaccine injection. The law took effect on December 24, but it applies retroactively to November 2, 2021, which is the date the CDC authorized the COVID-19 vaccine for children ages 5-11. Here are the key points from this law (the “NYC Child Vaccination Leave”):

1. Leave must be granted for parents who (a) accompany their children to COVID-19 vaccine injections and/or (b) care for such a child who is experiencing temporary side effects from a COVID-19 vaccine injection.
2. The child must be under the age of 18 or the child must otherwise be incapable of self-care by reason of mental or physical disability.
3. A parent is entitled to four hours of paid leave per injection, per child. The NYC Child Vaccination Leave does not reduce the parent’s own paid vaccination leave rights.
4. An employer cannot require the employee to work additional hours to make up for the original hours the employee was unavailable, or find a replacement employee to cover their missed working hours, because the employee used paid COVID-19 child vaccination time.
5. Employees may be required to provide “reasonable notice” of the need for leave, not to exceed 7 days, of the foreseeable need to take time off under this law.
6. An employer may require that the parent provide proof of the child’s receipt of the vaccine injection within 7 days.
7. The NYC Child Vaccination Leave rights cannot be waived by a union for employees covered by the union’s and employer’s CBA.
8. The NYC Child Vaccination Leave expires on December 31, 2022.

If you have any questions about how to comply with these requirements, please do not hesitate to contact us.