McDermott Will & Emery
New York NY
McDermott Will & Emery's New York office opened in 1988 through a local acquisition. The Firm now has more than 100 lawyers practicing from the New York office.Show more
Employment & Immigration
This article answers employers' questions on the COVID-19 vaccine, including with regard to mandatory and voluntary vaccination policies, requests for remote working, the individualised enquiry framework, anti-vaccination advocacy, Health Insurance Portability and Accountability Act privacy, religious exemption requests and workers' compensation claims.
Environmental, social and corporate governance (ESG) efforts are important but create unique risks for multinationals with US operations due to the risk of reverse discrimination litigation under US law. This is because US employment discrimination laws swing both ways. For example, the prohibition against sex discrimination protects men as well as women. This means that ESG efforts involving employment must be pursued more thoughtfully.
Employers that implement a mandatory vaccination programme should pay close attention to their responsibilities under Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Genetic Information Non-discrimination Act, Occupational Safety and Health Administration guidelines and the Employee Retirement Income Security Act, as many of the traditional applications of those laws apply to this type of programme.
New York Governor Andrew Cuomo recently signed into law the New York Health and Essential Rights (HERO) Act, which imposes stringent new workplace safety requirements on all employers in New York. The HERO Act requires the New York commissioners of labour and health to create a model airborne infectious disease exposure prevention standard for all employers across the state, differentiated by industry. This article provides guidance for employers on how to prepare for the act's implementation.
With the COVID-19 vaccination process underway, employers are navigating unprecedented issues within their workforce. This article explores the most pressing questions that employers are asking – including whether employers can (and should) mandate vaccination – as well as other novel workplace challenges stemming from the roll-out of a COVID-19 vaccine.
With the COVID-19 vaccination process underway, employers are navigating unprecedented issues within their workforce. This article explores employers' obligations when implementing mandatory vaccination programmes, issues concerning employee data that is provided as proof of vaccination or pre-vaccination screening and defining 'reasonable accommodation' and potential Americans with Disabilities Act concerns.
Employers can implement a mandatory COVID-19 vaccination policy, subject to some conditions and exceptions. There are a number of factors that employers should consider when determining whether to make a COVID-19 vaccine mandatory or voluntary, including the administrative burden, legal exposure and public relations issues. This article answers employers' key questions on the matter.
California's Division of Occupational Safety and Health (Cal/OSHA) recently adopted emergency temporary standards on COVID-19 prevention in the workforce. These temporary standards will require most Californian employers to implement a written COVID-19 prevention programme meeting certain criteria. While many employers have already followed Cal/OSHA guidance to minimise employees' exposure to COVID-19, the new requirements warrant an immediate review of current policies to ensure compliance.
President Donald Trump recently issued an executive order which prohibits federal contractors and federal grant recipients from conducting any workplace training that implies, among other things, reverse discrimination. This requirement applies to all contracts and grants entered into after the order's effective date and takes effect 60 days after the order's effective date, potentially affecting many organisations that currently receive federal assistance through contracts, grants or other programmes.
As students begin a new school year, employers face a new challenge – employee leave and accommodation requests. With widespread remote learning and evolving legal obligations to provide paid leave to working parents, employers must navigate unique staffing challenges while complying with the Families First Coronavirus Response Act and other state and local leave laws.
California Governor Gavin Newsom has signed Assembly Bill 685 into law, which will come into effect on 1 January 2021. The law creates an enforceable state-wide standard for how employers should handle potential exposure to COVID-19 and outbreaks in the workplace and expands the power of California's Division of Occupational Safety and Health to enforce this standard and take action to protect employees, including shutting down worksites deemed to be an 'imminent hazard' due to COVID-19 risk.
Employers with more than 500 employees nationally, and employers of healthcare providers and emergency responders previously exempted from the Families First Coronavirus Response Act requirements, must provide Californian employees with two weeks' supplemental paid sick leave for specified COVID-19 reasons. In addition to providing paid leave, the law requires employers to comply with urgent notice and posting requirements that are administratively burdensome.
The US Department of Labour recently issued an information letter indicating that, in limited circumstances, it will allow defined contribution retirement plans (eg, 401(k) plans) to indirectly invest in private equity funds. Specifically, the information letter allows plans to offer their participants a professionally managed asset allocation fund with a private equity component as an investment option.
Many employers that reopened recently are now facing a new challenge – employee off-duty conduct. At stake are both workplace and customer safety, as well as the company's reputation. This article highlights different scenarios that employers are likely to face and provides tips on how they can practically navigate and mitigate any potential risks when responding to off-duty conduct issues.
The US District Court for the Southern District of New York recently struck down four parts of the US Department of Labour's final rule implementing the Families First Coronavirus Response Act (FFCRA). The FFCRA provides COVID-19-related sick leave and family leave to employees of businesses which have fewer than 500 employees. This article examines what this decision means for employers.
The Employee Retirement Income Security Act (ERISA) requires plan fiduciaries to act prudently and loyally when making decisions about a plan. In a recent case, a federal district court held that the plaintiff's allegations about expensive record-keeping costs and imprudent investment options failed to give rise to an inference that the defendants had violated their ERISA obligations.
States have imposed their own obligations on employers as part of their reopening plans. Employer requirements and best practices depend on the employer's locations of operation and type of business but, at a high level, there are general trends with respect to state-imposed employer obligations, including maintaining safe working conditions and monitoring employee health, undertaking sanitisation efforts, requiring the use of personal protective equipment and promoting telework.
COVID-19 safety plans are a way for employers to demonstrate to their employees, the public (for public-facing businesses) and, in certain cases, state governments that they have considered the risks associated with COVID-19 in their respective workplaces and have developed a response to these concerns. This article answers FAQs for employers regarding COVID-19 safety plans, including whether state-specific guidance exists and when such plans should be updated.
The employment and business decisions made by employers under the spectre of the unprecedented COVID-19 pandemic are now being tested by opportunistic plaintiffs' lawyers. Employers of all sizes should expect a flood of employment litigation alongside ever-changing conditions, constantly updated guidance and, at times, conflicting state and local guidance. Litigation avoidance will require a team effort and proactive communication – both internally and externally.
The COVID-19 pandemic has put unprecedented strain on organisations of all sizes across all industries. The uncertainty of the new normal is leading some employers to consider extreme, and often unnecessary, new policies in anticipation of the eventual return to work. This article focuses on strategies for employers to anticipate and address future workplace problems which may arise once employees return to work.
The COVID-19 pandemic has put unprecedented strain on organisations of all sizes across all industries. The uncertainty of the new normal is leading some employers to consider extreme, and often unnecessary, new policies in anticipation of the eventual return to work. This article focuses on preparedness for the opening-day obstacles that employers are likely to face as they bring their employees back to work.
The COVID-19 pandemic has put unprecedented strain on organisations of all sizes across all industries. The uncertainty of the new normal is leading some employers to consider extreme, and often unnecessary, new policies in anticipation of the eventual return to work. To properly navigate the complexities of these novel COVID-19 employment issues, employers need innovative but practical solutions.
With the restrictions imposed to combat the COVID-19 pandemic slowly loosening, businesses are thinking about returning to work and what this will look like in practice. While it will not be business as usual, this article highlights how employers can prepare their workplaces and navigate safety mandates and recommendations, including with regard to prioritising the safety of employees and customers, the use of face coverings in the workplace and the screening of employees.
With the restrictions imposed to combat the COVID-19 pandemic slowly loosening, businesses are thinking about returning to work and what this will look like in practice. While it will not be business as usual, this article highlights how employers can smoothly transition back to work, including through the use of transition teams and plans and by focusing on safety, staffing and a reopening timeline.
With the COVID-19 pandemic continuing to affect every facet of life, businesses have much to consider. This article covers the provisions available to employers in the United States and the key questions that they are asking, including topics such as the Families First Coronavirus Response Act, furlough, access to the workplace, reductions in hours and employers' obligations concerning employees who are experiencing symptoms.
In recognition of the difficulties faced by retirement plan sponsors, participants and beneficiaries due to the COVID-19 pandemic, the Department of Labour, in conjunction with the Internal Revenue Service and the Department of the Treasury, recently issued guidance extending a number of retirement plan deadlines, including deadlines for many participant notices and benefit plan claims.
With rapid developments in local, state and federal guidance and law, the appropriate approach for each employer in relation to COVID-19 will vary depending on the nature of their work, the industries served and their location and size, among other considerations. This article outlines the practical considerations linked to working from home and privacy that employers need to know.
With rapid developments in local, state and federal guidance and law, the appropriate approach for each employer in relation to COVID-19 will vary depending on the nature of their work, the industries served and their location and size, among other considerations. This article outlines what employers need to know about furlough and the financial help that is available for employers.
With rapid developments in local, state and federal guidance and law, the appropriate approach for each employer in relation to COVID-19 will vary depending on the nature of their work, the industries served and their location and size, among other considerations. This article outlines what employers need to know about employees experiencing symptoms and employee absences.
Most states have issued some form of 'shelter in place' or 'stay at home' order to flatten the curve of COVID-19. As a result, many business operations have been temporarily suspended, unless the business is engaged in essential or critical infrastructure functions or supports businesses engaged in such functions. For businesses that are considered 'essential' and have employees still reporting to work, what steps can employers take to keep their workplace healthy and safe?
Older federal employees just got a boost from the Supreme Court's recent interpretation of the causation standard under the federal sector provision of the Age Discrimination in Employment Act. To determine the prevailing standard, the court wrestled with the phrase "free from any discrimination based on age", which provides that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age… shall be made free from any discrimination based on age".
For 2020, legislation enacted in December 2019 dramatically increased penalties imposed by the Internal Revenue Code for late filing of certain employee benefit plan notices and reports. In addition, a final rule published by the Department of Labour made inflation adjustments to a wide range of penalties. This article compiles the penalty amounts that apply from 2020.
New, more employer-friendly regulations recently came into effect, determining how overtime pay is calculated under the Fair Labour Standards Act. The US Department of Labour (DOL) promulgated the regulations to "provide clarity and to better reflect the 21st-century workplace". The DOL's 2020 regulatory updates address whether certain forms of compensation can be excluded from an employee's regular rate of pay.
In today's global economy, COVID-19 raises serious concerns for healthcare providers and employers in all industries. For workers who are on the frontline caring for patients and developing diagnostics and vaccines, travelling for business or in close contact with individuals who travel or may have been affected, preparedness and prevention are crucial. This article answers FAQs regarding COVID-19.