Employment Law Updates

The U.S. Department of Labor (DOL) has announced a final rule clarifying the standard for classifying a worker as an independent contractor rather than employee under the Fair Labor Standards Act. The effective date of the final rule is March 8, 2021.

Most employers have been aware of the paid leave requirements of the Families First Coronavirus Response Act (FFCRA). The FFCRA has required employers with fewer than 500 employees to pay certain amounts of sick and family leave related to coronavirus. The requirements of that law, however, expire on December 31, 2020.

As an addendum to our earlier blog post about mandatory vaccination policies, we should note that the Pfizer vaccine has received only emergency use authorization (EUA) from the FDA, and it is anticipated that the Moderna vaccine will be in the same category. We have learned that the federal statute providing for the emergency use allows the FDA to establish conditions on administering the vaccine. One condition is to inform a person receiving the vaccine of “the option to accept or refuse administration of the product”.

We have received several inquiries from employers about whether they can require employees to receive the new Covid vaccines. The EEOC has issued new guidance on this subject. See section K of that link which deals with vaccinations.

The National Labor Relations Board (NLRB) in recent years has issued a series of decisions protecting employee statements that included profane, sexist or racist comments, if those statements were made while employees were participating in protected activity under the National Labor Relations Act (NLRA). Among other things, the NLRA protects employees' rights to discuss the terms and conditions of their employment. For example, the NLRB ruled that racist remarks made while picketing and a profane social media tirade were protected. Disciplinary action for an employee’s exercise of protected activity is prohibited.

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