Hunton Employment & Labor Perspectives

On June 10, 2021, fifteen months into the COVID-19 pandemic, the United States Labor Department’s Occupational Safety and Health Administration (“OSHA”) has issued its first ‘emergency temporary standard’ (“ETS”) governing the impact of COVID-19 on health care workers.

The ETS broadly requires healthcare employers to conduct an internal safety assessment and develop a safety plan, which must be in writing for all employers with more than 10 employees. The ETS further delineates requirements relating to patient screening and management, health precautions, masks and PPE,  aerosol-generating procedures, physical distancing, physical barriers, cleaning and disinfection, ventilation, health screening, vaccination, employee training, anti-retaliation, record-keeping, reporting occurrences of COVID-19 transmission, and paying employees for periods of quarantine. Consistent with recent CDC guidance, the ETS also contains carve outs on employee mask-wearing requirements where employees are all vaccinated or where employees are given reasonable accommodations exempting them from mask-wearing and/or vaccination requirements.

The legal landscape for defining “employers,” “employees,” and “independent contractors” can be quite dynamic, as this past year has illustrated. In January 2021, the Department of Labor issued an employer-friendly independent contractor rule that would have departed from the agency’s typical balancing test, but it formally withdrew this rule in early May with the change in administration. The DOL’s independent contractor rule is intended to provide guidance to employers when determining whether a worker is an employee or an independent contractor. For employers, this is an important distinction because the FLSA’s overtime and minimum wage protections apply only to employees, not independent contractors. Because courts and employers sometimes struggle to find this line using the economic realities test and its iterations, the Trump-era independent contractor rule aimed to provide a clearer definition of “employee,” as opposed to “contractor.” The DOL has not yet proposed a new independent contractor test, but employers should be mindful that the Biden administration may potentially announce a new rule on this topic.

HuntonAK labor and employment partner, Amber Rogers has been named to Law360’s Employment Rising Stars for 2021.

Amber was selected out of 1,400 applicants, practice area winners were selected based on their career accomplishments in their respective disciplines. Law360’s Rising Stars is an annual compilation of lawyers under the age of 40 whose legal accomplishments transcend their age.

Since the beginning of the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) has frequently released guidance on the many employment law compliance issues that have arisen as a result of the pandemic. The latest guidance issued by the EEOC concerns whether employers may implement vaccine incentive programs to encourage employees to get vaccinated without running afoul of the Americans with Disabilities Act (ADA) or the Genetic Information Discrimination Act (GINA). In its May 28, 2021 Guidance, the EEOC advised employees that vaccine incentive programs are lawful under the ADA and GINA in certain circumstances.

HuntonAK’s Labor and Employment practice has been recognized as leaders by Chambers USA 2021 rankings. Chambers USA ranks leading firms and lawyers in an extensive range of practice areas throughout America. The research is in-depth, and client-focused and the guide is read by industry-leading companies and organizations throughout the US and worldwide.

In an April 28, 2021 decision, the Ninth Circuit determined that the application of California’s ABC test (also known as AB-5) to motor carriers is not preempted by the Federal Aviation Administration Authorization Act of 1994 (“F4A”). The ABC test is a judicially-created independent contractor test that was ultimately codified via AB-5. For a more in-depth discussion of AB 5, visit our previous blog post here.

In the first four months of 2021, Virginia, New Mexico, New York and New Jersey passed laws legalizing or decriminalizing, in some form, recreational marijuana.  Exactly how these laws will affect employers in these states is still an open question, but for now, employers should understand the nuances of the laws so they can prepare for the emerging reality that is legal marijuana.

Most employers know the Fair Labor Standards Act (“FLSA”) requires employees to be paid time-and-one-half for all hours worked over 40 in a workweek unless an exemption applies.  But what some employers don’t realize is, for the most-commonly-used overtime exemptions to apply, employees must not only satisfy various “duties” tests, but they must also be paid on a “salary basis” at not less than $684 per week.  Payment on a salary basis means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis.

On March 25, 2021, Virginia Governor Ralph Northam signed into law new protections for employees related to the medicinal use of cannabis oil.  Effective July 1, 2021, the newly enacted § 40.1-27.4 will prohibit employers from disciplining, discharging, or discriminating against an employee for his or her lawful use of cannabis oil so long as the use is pursuant to a valid written certification issued by a health care practitioner for the treatment of the employee’s diagnosed condition or disease.

HuntonAK Labor and Employment associate Reilly Moore was recognized as a Rising Star for Employment & Labor by The Washington Post Magazine and Virginia & West Virginia Super Lawyers Magazine, 2021.

Super Lawyers acknowledges outstanding practice group lawyers “who have attained a high-degree of peer recognition and professional achievement.”

Reilly is an Executive Committee Member for the Richmond Bar Association, Young Lawyers Section and serves as a Law School Council Liaison for the Virginia Bar Association.  During the past year, Reilly has served as a key member of the ...