As you may recall, all federal contractors now have vaccination requirements because of Executive Order 14042, as discussed in our blog here.

The Order requires that all contracts between federal contractor and subcontractor contain a clause ensuring compliance. However, the specifics of that clause were unknown until September 24, 2021, when the Safer Federal Workforce Task Force (SFWTF) published guidance, which requires:

• Vaccinations of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accomodation; 
• Compliance by individuals, including covered contractor employees and visitors, with the  guidance related to masking and physical distancing while in covered contractor workplaces; and 
• Designation by covered contractors of a person(s) to coordinate COVID-19 workplace safety efforts. 

In their best written papers to date, NYC school employees argued to the Supreme Court that they need a stay of the October 1, 2021 deadline to get vaccinated. 

They argue that the vaccination order prevents them from lawfully pursuing their occupation, which is a fundamental Due Process right. They claim that their alternative options of private school teaching, adult or continuing education teaching, or private tutoring are not pursuing their occupations completely. Nonetheless, they fail to address whether taking "their certifications and seek[ing] employment in any other public school system... in the State," would be pursuing their occupations completely, as NYC had argued before the Second Circuit. 

Regardless, the issue of whether the employees can still pursue their profession is where the case is likely to be decided. In their opposition before the Second Circuit, the City had argued and emphasized that Due Process protection is only afforded if "a plaintiff is completely prohibited from engaging in his or her chosen profession." However, the school employees now argue that "a violation of one’s fundamental right to pursue an occupation exists and gives rise to a due process claim where there is less than a complete inability to practice one’s profession." Which one is it? Who is right? 

What do you think the law should be? 

The other argument advanced by the school employees is that the vaccination order should have given them an option to opt out of vaccination for weekly testing because school staff should be treated equally to firefighters and police officers who have that option. While this seems like a good argument in an initial read of the papers, the school employees' argument that firefighters and police officers present a greater risk to spread COVID because they have contact with the public as opposed to school children who have less severe COVID fails the smell test when it's considered that adults can be vaccinated and those under 12 years of age cannot. However, we will see. 

A proposed rule at 12 NYCRR 141 will increase basic hourly minimum wage for non-farm workers outside of New York City, Nassau, Suffolk and Westchester counties, from $12.50 to $13.20. 

This proposed rule is in compliance with the minimum wage requirements at Labor Law 652(6). 

Although 70 cents may not be considered impactful by many, those struggling to afford monthly expenses, especially during the ongoing COVID-19 pandemic, will certainly benefit from such an increase. 

To voice your support or opposition to this proposed rule, comments should be sent to Michael Paglialonga, NYS Dept.of Labor at regulations@labor.ny.gov by November 29, 2021. 

NYS Senator Alexis Weik Sponsored a bill that provides eligibility for unemployment insurance for "unemployment due to such employee's choice not to receive a coronavirus vaccine."

While this bill is nowhere near being enacted, do you agree with the Senator?

Is this bill perpetrating the spread of a deadly virus by empowering people to make stupid decisions that will lead to deaths or is it the right move to support liberty - my body my choice?

You decide - tell your NYS representatives if you support this bill or strongly oppose it!

 According to the Second Circuit:

This Court entered a temporary injunction in the above-captioned case on Friday, September 24, 2021 for administrative purposes pending decision by a three-judge panel. IT IS HEREBY ORDERED that the September 24 injunction is DISSOLVED. IT IS FURTHER ORDERED that the motion for an injunction pending appeal is DENIED.

That said, not getting vaccinated does not equal automatic termination. 

As the City explained in their opposition to the injunction, "even employees who object to vaccination... can elect to stay home and retain their positions while being placed on unpaid leave with healthcare until early September 2022... And even if plaintiffs decline the extended leave option, the earliest any steps would be taken to terminate their employment would occur in December 2021." 

So, "employees who fail to submit proof of having received one dose of vaccination by September 27, 2021, are to be placed on unpaid leave with health insurance the following day. [internal citation] But an employee who submits proof of vaccination before November 30, 2021, will be able to return to work within a week. [internal citation] And an employee who submits proof of vaccination thereafter, but before September 5, 2022, will be able to return to work within two weeks." 

As to accommodations, the City is granting accommodations "for a religious or medical" needs. However, an underlying arbitration on the matter set "an alternative to any statutory reasonable accommodation process... for the 2021-2022 school year" where the deadline for "any requests to be considered as part of this process... [was] no later than Monday, September 20, 2021, by 5:00 p.m." Therefore, any school employee who has not yet applied for an accommodation, CANNOT get one. 

The City's opposition summed this entire situation up nicely where it stated, "Put bluntly, plaintiffs do not have a substantive due process right to teach children without being vaccinated against a dangerous infectious disease."

On September 25, 2021, Gov. Hochul released a comprehensive plan to address possible shortages within hospital and health care facilities in preparation for today's vaccination deadline. 

The plan includes the following: 

• Signing an executive order (if necessary) to declare a state of emergency that would increase workforce supply in the hospital and health care facilities and allow qualified health care professionals in other states or countries, recent graduates, and retired health care professionals to practice in New York;
• Exploration of ways to expedite visa requests for medical professionals; 
• Possible deployment of medically-trained National Guard members; &
• Partnering with the Federal Govt. to deploy Disaster Medical Assistance Teams ("DMATs") to assist local health and medical systems. 

The Tax Cuts and Jobs Act ("TCJA") caused the gift, estate, and gift-skipping transfer ("GST") tax exemptions to be $11.7 million per person in 2021. However, it is scheduled to decrease to $5 million, adjusted for inflation on January 1, 2026. Have you been planning for that cliff? 

Even scarier for estate tax planning is the Build Back Better Act, which is a projected $3.5 trillion COVID-19 plan proposed by President Biden to create jobs, cut taxes, and lower costs for working families, which includes lowering taxes, prescription drug, childcare, health care, and education costs. This law proposes to accelerate the estate tax exemption decrease by four (4) years, to January 1, 2022. 

Yet, the Build Back Better Act is not yet enacted into law. It is currently being marked up by the House Ways and Means Committee. 

Have you spoken to your congressperson about your feelings about speeding up the estate tax exemption cliff? 

Do you think it should be included in the Build Back Better Act? 

Stay tuned for updates concerning the Build Back Better Act in the upcoming weeks to follow... 

If you want to avoid a workplace vaccine mandate, be very careful what you post on social media about politics and vaccines.

According to the U.S. Equal Employment Opportunity Commission's Questions and Answers: Religious Discrimination in the Workplace, "[s]ocial, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII." This is cited in the EEOC Compliance Manual § 12–I(A)(1).

Instead, per the EEOC, a religious belief concerns “ultimate ideas” about “life, purpose, and death."

To qualify for a vaccine exemption, you need a religious or medical reason, not a political one. 

In fact, employers are already combing the internet to confirm whether your claimed religious belief is insincere and merely a manifestation of your politics. Taking this a step further, if you sue your employer for failing-to-accommodate your religious beliefs, be warned that your social media posts are fair game and are a gold mine for a good trial lawyer who will tear you apart on the stand. 

As background, the underpinnings of the EEOC's position stems from the United States Supreme Court, which first set the test for a sincerely held religious belief in U.S. v. Seeger, when conscientious-objectors sought accommodations from service in the armed forces (a/k/a, draft exemptions). Per the Supreme Court, the test is "whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption." This test was adopted to the employment discrimination context by the Third Circuit Court of Appeals in Protos v. Volkswagen of America, Inc. 

Back to you. An employer can and should challenge whether you sincerely hold your espoused religious belief before granting you an accommodation from its rules and policies, like a vaccine mandate. 

As an illustration of what you are looking at in such a challenge, see the case of Sidelinger v. Harbor Creek School Distr., where an employee sought a religious exemption from his employer's "requirement of wearing an identification badge" because of his claims that wearing a badge evoked the "sins of pride and hypocrisy contrary to his religious belief... [as] an old-fashioned, very conservative Roman Catholic." In the case, the District Court made clear that while it would not question the truth of the belief, it would certainly question whether the employee truly held that belief. Further, the Court emphasized that it is an employee's burden "to show that he holds a sincere religious belief in conflict with his employer's requirements." Finally, the Court explained that an employee's sincerity and credibility are the basis for a factbinder's assessment, which includes internet posts. By the way, the Court found that the employee did NOT qualify for a religious accommodation. 

Are your claimed religious objections to the COVID vaccine sincere or BS political crap? 

Sharing Attorney Andrew Lieb's interview on Newsy - He addressed hearsay about vaccine mandates in the workplace such as: Do you get unemployment if you get fired for refusing vaccination?

Click HERE to watch the Interview