Colorado Supreme Court Resolves ‘Use-It-or-Lose-It’ Conundrum in Decision Providing Long-Awaited Clarity for Employers

On June 14, 2021, the Colorado Supreme Court issued its highly anticipated decision in Nieto v. Clark’s Market, ruling that employers must pay out an employee’s earned but unused vacation pay upon separation of employment, even where an agreement or policy authorizing forfeiture of such pay exists. The impact of the ruling is significant, as so-called use-it-or-lose-it vacation policies, which have become commonplace for Colorado employers, are now prohibited as a matter of law under Colorado’s Wage Claim Act (the Act). The ruling also marks the end of an otherwise contentious legal and administrative battle involving the courts, interested parties and the Colorado Department of Labor and Employment (CDLE) regarding the propriety of use-it-or-lose-it policies, providing much-needed clarity to employers regarding their payment obligations.

Background on Colorado Wage Claim Act

As background, Section 8-4-101(14) of the Act defines “wages” and “compensation,” which must be paid out at separation from employment, to include “vacation pay earned in accordance with the terms of any agreement.” The Act further provides that if “an employer provides paid vacation for an employee, the employer shall pay upon separation from employment all vacation pay earned and determinable in accordance with the terms of any agreement between the employer and the employee.” Continue Reading

Will the Supreme Court’s Decision Overturning California Union Access Regulation Be a Bonanza for Nonagricultural Employers?

In a significant victory for California agricultural employers, the Supreme Court recently held that California’s regulation requiring agricultural companies to permit union organizers on their property was an unconstitutional taking of private property without just compensation. Cedar Point Nursery v. Hassid, Case No. 20-107. The regulation permitted union organizers to remain on company property for up to three hours per day, 120 days per year.

The district and appellate courts had concluded that the regulation did not amount to a taking of property because it did not allow the general public to access the property on a permanent and/or continuous basis. The Supreme Court, however, held that the regulation amounted to the taking of an easement over the employers’ property on behalf of labor union organizers. Though acknowledging that the easement did not allow permanent occupation, the Court found that the intermittent and temporary nature of the easement was only relevant to the amount of compensation that would be owed as a result of the taking. Continue Reading

The Devil Is In the Details: Department of Labor Publishes Tipped Employee Proposed Final Rule

The U.S. Department of Labor (DOL) published its Notice of Proposed Rule Making (NPRM) regarding tipped employees. Rejecting the Trump administration’s proposed rules governing tip-credit employees performing non-tipped duties, the DOL proposes to adopt what is known as the 80/20 rule. The devil is in the details, and the DOL now limits the 20 percent of allowable non-tipped duties to only those duties that “directly support[] the tip-producing work.” This change is significant for employers because the DOL has narrowly defined what duties directly support tip-producing work. Additionally, if the tipped employee performs such work continuously for 30 minutes or more, full minimum wage must be paid for that time. Continue Reading

Texas Court Affirms Employers’ Freedom to Require COVID-19 Vaccine for Employees

COVID-19 has presented no shortage of legal questions for employers, from shutdowns and layoffs to when and how to reopen. And with COVID-19 vaccines now broadly available in the United States, some companies (especially those in high-risk environments like hospitals and nursing homes) face a new question: whether they can require COVID-19 vaccination as a condition of employment. On June 12, 2021, Judge Lynn Hughes in the United States District Court for the Southern District of Texas found that such a requirement was legally permissible in Jennifer Bridges v. Houston Methodist Hospital (Case No. 4:21-cv-01774).

In April 2021, Houston Methodist Hospital announced a policy requiring its employees to receive a COVID-19 vaccine and stated that it would terminate the employment of employees who did not timely receive a COVID-19 vaccine (subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs). Jennifer Bridges and 116 other employees sued to block this requirement of continued employment with Houston Methodist, arguing that it (1) constituted wrongful termination and (2) violated federal law. Continue Reading

OSHA Announces COVID-19 Emergency Temporary Standards for the Healthcare Industry

The Occupational Safety and Health Administration (OSHA) released Emergency Temporary Standards (ETS) for the health care industry on June 10, 2021. The ETS will apply to healthcare and healthcare support service workers with the goal of better protecting them from occupational exposure to COVID-19. This will include, among others, employees working in hospitals, nursing homes, assisted living facilities, and ambulatory care facilities. It will also include employees working as emergency responders (with private employers) and home healthcare workers.

What Is Required?
The ETS will require a health care industry employer with covered employees to conduct a hazard assessment and to prepare a written action plan for COVID-19 mitigation. The employers must also provide and ensure the use of requisite PPE (e.g., masks) and require proper social distancing (i.e., six feet) between workers (and erecting barriers if that is not possible). The ETS also requires covered employers to provide employees with paid time off in order to get vaccinated and to recover from any side effects. The ETS does, however, exempt fully vaccinated workers from the PPE and social distancing requirements in circumstances where there is no reasonable expectation that they will come in contact with anyone suspected or confirmed to have COVID-19.

When Must You Comply?
The ETS will take effect immediately upon its publication in the Federal Register. Employers will then have only 14 days within which to come into compliance with the majority of the requirements. OSHA has stated, however, that for the time being it will take into consideration an employer’s good faith efforts to comply with the ETS when determining whether to issue a citation for any violation.

How Long Will It Be In Effect?
The ETS would likely stay in effect until or unless it is superseded by a permanent standard (which can take approximately six months). Until that time, OSHA has stated that it will update the ETS, when necessary, to align with the Center for Disease Control and Prevention guidelines and to respond to changes in the COVID-19 pandemic.

Texas Passes Bill Prohibiting Businesses From Requiring Vaccine Passports for Customers, But Not Employees

On June 7, 2021, Texas Gov. Greg Abbott continued to emphasize that Texas is open for business by signing into law S.B. 968, which prohibits Texas businesses from requiring customers to provide documentation of COVID-19 vaccination — including through the use of “vaccine passports” — to gain access to or receive service from the business. The law went into effect immediately and specifically prohibits Texas businesses from requiring that customers “provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the business.” The penalty for failure to comply with the law may be significant, as Texas businesses that fail to comply are not eligible to receive state grants or enter into contracts with the state.

Texas businesses may be wondering what effect S.B. 968 may have on their ability to require employees to be vaccinated or to utilize “vaccine passports” for return of employees to work. As noted above, the language of the bill limits its applicability to customers and does not address the employee-employer relationship. Moreover, the bill expressly provides that it may not be construed as “restrict[ing] a business from implementing COVID-19 screening and infection control protocols in accordance with state and federal law to protect public health.”

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance on the COVID-19 vaccine and explained that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations.” The updated EEOC guidance also confirmed that the laws do not prohibit employers from requiring employees to bring in documentation or other confirmation of vaccination status, so long as the information is kept confidential in accordance with the ADA. Thus, while Texas businesses may not require proof of vaccination from customers, Texas employers may still require employees to get vaccinated and provide proof of vaccination before returning to work, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations.

Colorado Joins Coalition of States Expanding Antidiscrimination Laws to Include Protections for Gender Identity and Gender Expression

On May 20, 2021, Colorado Gov. Jared Polis signed into law HB21-1108, known as the Gender Identity Expression Anti-Discrimination Act (the Act). In relevant part, the Act updates Colorado’s nondiscrimination provisions applicable to individuals seeking protection on the basis of “sexual orientation,” including by adding the terms “gender expression” and “gender identity” to 48 areas of state law (e.g., employment, housing, public accommodation) that prohibit discrimination against members of a protected class.

Following on the heels of the Supreme Court’s June 2020 decision in Bostock v. Clayton County, wherein the Court determined that discrimination on the basis of sexual orientation or gender identity is necessarily discrimination “because of sex,” Colorado joins a growing coalition of states that have broadened their prohibitions against discrimination, including by extending their antidiscrimination statutes to include prohibitions against gender identity and gender expression discrimination. Continue Reading

Back to Work: Montana Enacts Pro-Employer Changes to Wrongful Discharge Law While Becoming the First State to Protect Employees Based on Vaccination Status

In a flurry of activity this spring, the state of Montana implemented several changes to how employers may do business in Montana. To start, several amendments to Montana’s Wrongful Discharge from Employment Act (WDEA) provide increased flexibility to Montana employers. In addition, amendments to Montana’s Human Rights Act add new COVID-19-related protections for employees based on vaccination status.

On March 31, 2021, in particular, Montana’s governor signed HB 254, which, for the first time in over 30  years, revised the WDEA. Many changes beneficial to employers resulted from these amendments and, as further explained below, employers should review and revise internal policies, practices and protocols to take advantage of the changes. On May 7, 2021, moreover, Montana’s governor signed an important bill adding vaccination status as a protected category under Montana’s Human Rights Act. Montana is the first state to prohibit discrimination based on vaccination status and the amendments create numerous questions for employers operating in the state, including whether such protection will extend to other jurisdictions. Continue Reading

California Senate Bill 93: Employers, We Have You Covered

On April 16, 2021, California Gov. Gavin Newsom signed into law Senate Bill (SB) 93, which requires certain employers to rehire eligible employees who were previously laid off due to the COVID-19 pandemic. To be eligible for recall, laid-off employees had to have been employed by the covered employer for six or more months in the 12 months preceding Jan. 1, 2020. The new law applies to an owner or operator of a hotel, a private club, an event center, an airport hospitality operation or an airport service provider, or an enterprise that provides building services, defined as janitorial, building maintenance or security, to office, retail or other commercial buildings. Covered employers must follow SB 93’s recall procedures, timeline and preference system, which gives priority to employees based on date of hire. In addition to the statewide right of recall, local right-of-recall ordinances persist in Los Angeles, Oakland, San Diego, San Jose and Pasadena, each of which has its own coverage and requirements. For more information, please review our analysis of California’s Right To Recall Statute and Local Ordinances.

Deciphering The NY Hero Act: A New NY COVID-19 Worker Protection Law

While New York announced significant easing of COVID-19 restrictions in recent days and weeks, and while the Centers for Disease Control and Prevention appears to be loosening its COVID-19-related guidelines, the state continues its efforts to protect its employees with regard to COVID-19 safety with legislation signed by Gov. Andrew Cuomo late Wednesday night. The New York Health and Essential Rights Act, or NY HERO Act (S.1034B/A.2681B), has four sections, which all New York employers should be aware of:

Section 1 amends the labor law by adding a new section, 218-b, requiring the Commissioner of Labor, in consultation with the Department of Health, to create an airborne infectious disease standard covering all private employers. Once in place, the required safety standard (a model of which will be created by the state and differentiated by industry) will include requirements for procedures and methods for (a) employee health screenings; (b) face coverings; (c) required personal protective equipment; (d) workplace hand hygiene stations and maintaining healthy hand hygiene; (e) cleaning and disinfecting of shared equipment and frequently touched surfaces; (f) effective social distancing; (g) compliance with orders of isolation or quarantine; (h) compliance with applicable engineering controls; (i) designation of supervisory employee(s) to enforce compliance with the plan and related applicable laws; (j) compliance with applicable notification laws, rules, regulations, standards and guidance; and (k) verbal review of infectious disease standards, employer policies and employee rights. The plan must be posted and included in an employee handbook (to the extent the employer provides an employee handbook) and must be made available to all employees and independent contractors, employee representatives, collective bargaining representatives and the state upon request. Continue Reading