The New York Health and Essential Rights Act (HERO Act) adds new occupational safety and health rules that set minimum safety standards for the private sector. The Act covers all workers, including independent contractors. The state Commissioner of Labor together with the State Department of Health must prepare model airborne infectious disease exposure prevention standards. As of June 4, 2021, employers may either adopt the model standards or create their own safety plan that meets or exceeds the minimum standards established by the Labor Commissioner. Employers must distribute the plan to employees in English and the employee’s primary language if other than English, post the plan in the workplace, and incorporate it into the employee handbook.

The Virginia Human Rights Act (VHRA) has been expanded to prohibit discrimination on the basis of disability. Employers must provide a reasonable accommodation to qualified employees, unless the accommodation would cause an undue hardship. To do this, employers must engage in a timely, good faith interactive process to determine if the requested accommodation is reasonable or discuss alternative accommodations. Employers also cannot retaliate against an employee who requests or uses a reasonable accommodation, deny employment opportunities because the employer is required to provide a reasonable accommodation, or require the employee take a leave of absence if another reasonable accommodation can be provided.

Before denying an accommodation request because of an undue hardship, the employer must consider the hardship on the employer’s business, size of the applicable facility, nature and costs of the accommodations needed, the possibility that the same accommodations may be used by another employee, and safety and health considerations of the person with a disability.

Employers must include language in employee handbooks to include information about employee rights to reasonable accommodation based on disability. A required poster must also be displayed in a conspicuous place in the workplace. Additionally, employers must provide notice of employee rights upon hire and within 10 days following receipt of notice that an individual has a disability.

Action Items

1. EEO-1 Reporting is Now Open!
2. Sixth Circuit: Post-Termination Retaliation Prohibited
3. Ninth Circuit: Motor Carriers Again Subject to AB 5 Rules
4. California: Eases Restrictions for Vaccinated People
5. California: Revised Wildfire Smoke Regulations Adopted
6. California: Wi-Fi Sickness May Prompt Disability Accommodation
7. Los Angeles County, CA: New Guide to Reopening Businesses
8. San Francisco, CA: New COVID-19 Worker Protection Ordinance
9. Colorado: Mask Mandate Loosened
10. Illinois: Expansion of Statewide Paid Sick Leave
11. Chicago, IL: Employers Must Provide Vaccination Time Off Leave
12. Indiana: Mandatory Device Implantations Prohibited
13. Kentucky: State OSHA Updated for Alignment with Federal OSHA
14. New York: Updated Guidance on Healthcare Workers Returning to Work After COVID-19 Exposure and Travel
15. Virginia: New Paid Sick Leave Requirements for Home Health Workers

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In Aldridge v. Mississippi Dept. of Corrections, the Fifth Circuit Court of Appeal stated that employees must pursue their claims under the Fair Labor Standards Act (FLSA) rather than state tort law (e.g., negligence) where the state does not independently provide for minimum wage or overtime compensation requirements. Specifically, FLSA requirements cannot be circumvented by state laws, because they conflict with executing the “purposes and objectives of Congress.” The FLSA was designed to give specific minimum protections to individual workers “from substandard wages and oppressive working hours.”

There, employees claimed wage and hour violations under the FLSA, and negligence causes of action under state law for the FLSA violations. Mississippi does not have its own minimum wage and overtime laws, so the state claims were actually based on alleged violations of the federal claims. Under those circumstances, the state claims do not stand on their own and the court said that the state claims were preempted by the federal claims.

The court distinguished this idea by acknowledging that the FLSA requires employers to also comply with state or local wage and hour laws where they exist. The court’s position “only means that [employees] may not sue simultaneously under both state law and the FLSA for these violations if state law does not independently provide for such a cause of action.” The court also acknowledged that some state tort claims may stand if they are independent of the federal claims. Employers must take care to ensure compliance with both federal and state laws where they apply.

Action Items

SB 1480 amends the Illinois Human Rights Act (IHRA) to impose additional requirements on employers who perform criminal history checks on employees. The new provisions require employers to follow an interactive adverse action procedure before making any employment decisions based on an individuals’ criminal history or conviction record.