The groundbreaking Supreme Court of the United States case, NCAA v. Alston, opened the door for student-athletes to obtain compensation for use of his or her “name, image, or likeness” (“NILs”) in marketing or promotion materials at a local, state, regional, and national level.[1]  In Alston, the Supreme Court agreed with the challenging group of student-athletes that the NCAA rules limiting compensation compared to that offered in a free market violated federal antitrust regulations.[2] Until Congress passes uniform federal legislation, there is no guidance and states are left to create their own legislation.  Right now, 15 states have legislation pending and 26 have NILs legislation passed, which includes New Jersey. This author believes the NJ legislation is problematic and needs to be fixed.

Written by: Susan L. Swatski

On September 9, 2021, President Biden announced a six part “Path Out of the Pandemic” plan which requires private-sector businesses with at least 100 employees to mandate that employees get vaccinated against the Coronavirus or submit to weekly testing. The Occupational Safety and Health Administration (“OSHA”) will soon issue emergency temporary standards (“ETS”) to address how the mandate will be enforced and what exemptions may apply.

Written by: Susan L. Swatski, Esq.

Under prior guidance, the CDC defined a close contact as someone who spent at least 15 consecutive minutes within six feet of an infected person, thus putting the individual at higher risk of contracting the virus.  The CDC updated its guidance to define a close contact as:

“Someone who was within six feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from two days before illness onset (or, for asymptomatic patients, two days prior to test specimen collection) until the time the patient is isolated.”

In sum, the standard is now cumulative rather than consecutive minutes which greatly broadens who may need to be notified in the event of a positive case.  For example, a person who was exposed three times in a 24-hour period—for five minutes during each encounter—would meet the definition.  Please check your policies for contact tracing and be sure to note this important change. 

Written by: Susan L. Swatski, Esq.

Sixteen states, including New York, require employers to provide COVID-19 workplace safety training to employees. Even in states where training is not explicitly required, such as New Jersey and Pennsylvania, employers should consider providing COVID-19 workplace safety training. The Occupational Safety and Health Act and related state laws require employers to provide a workplace free from “known hazards” that are “likely to cause death or serious physical harm.”

Written by: Susan L. Swatski, Esq.

Health plans are not required under Federal law to cover COVID testing if the reason for the test is not an individualized treatment or diagnosis. For example, return-to-work screenings do not have to be paid by an employee’s health plan. If an employee is not covered by an insurance plan, then the employer should look to the Americans with Disabilities Act (ADA), which contains pre-pandemic guidance that employers may be obligated to pay the costs of administering mandated tests.

Written by: Susan L. Swatski, Esq.

U.S. Immigration and Customs Enforcement (ICE) recently announced that employers with entirely remote workforces as a result of COVID-19 have another 60 days until November 19, 2020 to utilize remote Form I-9 inspection requirements when onboarding new employees. The extension does not apply to businesses where some employees still physically report to a work location. If any employees are physically present at the worksite, in-person physical inspection of Form I-9 documentation must occur.

If you require assistance with your Form I-9 verifications and audits, please contact Susan L. Swatski, Esq. at sswatski@hillwallack.com.

Written by: Susan L. Swatski, Esq.

As employers re-open their offices and employees return to work in person, we have been receiving a number of questions, so we thought it would be helpful to provide you with a summary of the most commonly asked questions and our responses. Please keep in mind that these answers are intended to provide general information; employment laws are heavily nuanced and fact specific.