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On December 14, 2020, the country’s wait for a COVID-19 vaccination came to an end as the first vaccines began to be administered to America’s health care workers. Like many measures taken to combat the virus, the vaccine is not without controversy. According to one recent survey, nearly one quarter of Americans are hesitant about taking the vaccine. With such a prevalence, employers and employees may be wondering about whether employers can require workers be vaccinated and whether workers can refuse a vaccine mandate. Today’s Long Island employment law blog discusses these issues.

On December 15, 2020, the federal Equal Employment Opportunity Commission issued guidance to employers about how the COVID-19 vaccine may implicate employment law concerns. The issues discussed in this blog rely on that guidance.

The first employment law which may relate to vaccinating workers is the Americans with Disabilities Act (ADA). The ADA generally prohibits employers from discriminating against employees based on an employee’s medical condition or disability. More specifically, the ADA regulates medical examinations of employees. For vaccines, the preliminary question is whether a vaccination is a medical exam.

Followers of our civil rights blog will know that since the early days of the pandemic, our interpretation of existing law led us to conclude that most COVID-19 regulations, include lock downs, social distancing, and mask wearing, would be upheld by courts as constitutional. This conclusion was reached in large part by a 1905 Supreme Court decision which suggested that the Supreme Court believes the Constitution gives extreme deference to states’ policy decisions to fight disease.

Indeed, in the ensuing months of the pandemic, court after court, including the Supreme Court, continued to extend deference to the states’, when challengers sought a determination that regulation was unconstitutional. On November 25, 2020, however, SCOTUS, reconstituted as a strong conservative court, pushed back on New York’s regulations effecting houses of worship. Today’s Long Island civil rights blog discusses the case.

In Roman Catholic Diocese of Brooklyn v. Cuomo, several religious groups sued New York’s governor Cuomo, alleging recent regulations creating color coded zones based on a region’s COVID-19 outbreak, were unconstitutional. We blogged about the case when it was before New York’s federal appellate court. In brief, regions with higher outbreaks were required to comply with different regulations than regions with less significant outbreaks. The harsher regulations included which businesses could open and which must close. Further, under certain outbreak conditions, religious gatherings were limited (but not prohibited altogether). New York’s Second Circuit upheld the restrictions on religious gatherings as constitutional.

UPDATE: SCOTUS HAS REVERSED THIS DECISION. SEE OUR MOST RECENT BLOG ABOUT THIS CASE.

Throughout the COVID-19 pandemic, the civil rights lawyers at Famighetti & Weinick PLLC have been closely following the lawfulness of government restrictions implemented to control the spread of the virus. From the earliest days, our video blog series, “Lockdown Video Series,” predicted that most coronavirus regulations would be declared constitutional by courts.

As the months of the pandemic lumbered along, we continued to follow developments in the law. Our June 2020 blog discussed failing legal challenges to COVID-19 regulations, and partner, Matt Weinick, published a legal article discussing the constitutionality of face mask requirements and temperature checks at work. Again, our analysis concluded that, because of the Supreme Court’s strong deference to a government’s right to control the spread of disease, most constitutional challenges would fail.

The First Amendment protects, among other freedoms, the freedom of speech. The First Amendment applies only to prohibit government conduct, not private conduct. Governments take many forms, including towns, counties, and public school districts. So, the First Amendment applies to public schools and universities.

But, in certain contexts, such as schools, the First Amendment does not apply as broadly as it does to general citizen First Amendment speech. In some areas, such as public workplaces and public schools, the First Amendment recognizes that the government has a strong and important interest in regulating speech. So while students and government workers do not completely shed their First Amendment rights in schools and workplaces, different rules apply to determine whether the First Amendment applies.

Today’s Long Island civil rights blog discusses a First Amendment claim in the context of a public college.

What conduct constitutes a hostile work environment? How can a municipality be held responsible for a hostile work environment created by its employees? New York’s federal appellate court recently addressed these questions in the case Legg v. Ulster County. Today’s Long Island employment law blog discusses these issues, and how the Court of Appeals decided the case.

At Famighetti & Weinick PLLC, one of the leading inquiries we see as Long Island employment lawyers is “I’m working in a hostile work environment.” A hostile work environment is a legal term of art. While many employees subjectively consider themselves as facing a hostile work environment, the law does not recognize all hostile environments as being actionable in court. In other words, the law does not allow all employees to sue their employers for a hostile work environment.

Among other things, to sue an employer for a hostile work environment, the hostility must be based on a protected characteristic of the employee (such as sex, gender, age), the conduct must be sufficiently “severe or pervasive,” and, at least under federal law, there must be a basis for holding the employer responsible for the actions of its employees. These “elements” of a hostile work environment claim are not black and white issues, so employers and employees often hotly dispute these points in court.

Long Island employment lawyers, Peter Famighetti and Matthew Weinick, partners of the employment law firm Famighetti & Weinick PLLC, have been selected to the 2020 New York Metro Super Lawyers list. No more than 5% of the lawyers in New York State are selected by the Super Lawyer’s research team to receive this honor.

Super Lawyers evaluates lawyers in the state who they find have reached a “high degree of peer recognition and professional achievement.” The rating service then selects lawyers using a patented process, including surveying lawyers within the state, and independently researching evaluation of candidates and peer reviews.

2020 marks the fifth consecutive year that Famighetti has been selected for the Super Lawyers list. On his selection, Famighetti commented that, “I am so appreciative to be included on the Super Lawyers list, alongside some of the most respected lawyers in the state.” Famighetti further noted that, “I believe that both partners’ selection shows the Firm’s commitment to excellence in the practice of law.”

On April 10, 2019, the South Huntington Water District sent a letter to Juliet Irving. The Water District had been providing health insurance benefits to Irving as the surviving enrollee on a deceased employee’s insurance policy. The letter indicated the District would be revoking Irving’s health insurance coverage. Then, Irving hired Long Island employment lawyers Famighetti & Weinick PLLC who took the District to court and won a decision prohibiting the District from revoking the insurance. Today’s Long Island employment law blog discusses the case.

The foregoing is taken from the Court’s decision.

Irving had been a domestic partner of a District employee. Though they were not married, they considered themselves life partners. The employee received health insurance benefits from the District. The employee added Irving to his plan based on his understanding that the District participated in the New York State Health Insurance Program’s domestic partner coverage.

On April 3, 2020, Governor Cuomo signed into law New York’s Paid Sick Leave law. The law provides guaranteed paid sick leave to many of New York’s workers. Today’s Long Island employment law blog discusses the provisions of this new law.

The law provides that employees can accrue sick leave time based on hours worked. How many hours employees can accrue and whether the time is paid or unpaid varies on several factors, but regardless of these factors, employees earn one hour of sick leave for every 30 hours worked. Accrual begins on the effective date of the law (10/1/20), or upon employment, whichever is later. Accruals and requirements to pay for the sick time are broken down as follows:

  • Employers with 4 or less employees (in a calendar year) with net income of one million dollars or less, must provide up to 40 hours of unpaid sick leave each calendar year;

Federal and New York State laws require that employees be paid minimum wage and overtime. During “normal” times, employers far too frequently violate these laws. Sometimes, employers intentionally skirt wage laws to avoid paying the high costs associated with employee wages. Other times, however, employers try to comply with the law, but they fall into legal pitfalls by misclassifying employees or making other mistakes.

With Covid-19, employees are working from home or being subject to new workplace requirements, such as health screenings, before starting work. These new workplace realities, employers may stumble into new pitfalls concerning properly paying employees. Today’s Long Island employment law blog discusses situations where employers may be improperly paying employees and what employees should do if are they are not being paid correctly.

Non-exempt hourly employees must be paid for all time spent working. Generally, this is not a complicated issue. Most employees come into work and clock in or “punch in.” This records the time the employee reported in for work. After clocking in, the employee starts work.

As states across the country, including New York, make the medical use of marijuana legal, new issues are arising in the context of employment. For example, how will employers which require drug testing, respond to the changes in the law and how they will handle employees who are lawfully taking medical marijuana? Few courts have addressed these issues.

Recently, Long Island employment lawyers Famighetti & Weinick PLLC were able to “test the waters” to challenge the interplay of employment discrimination laws and medical marijuana laws. Today’s Long Island employment law blog discusses a decision from the New York State Division of Human Rights concerning employment drug testing and medical marijuana laws.

The following facts were taken from the Division’s decision. F&W’s client applied for a job with a national consumer electronics retail company. The applicant interviewed for the position at his local Long Island retail location. Soon after, the store issued the client a conditional offer of employment, subject to a background test and drug test.

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