20

March, 2022

COVID Mandates Have Lessened But Employers Still Have Obligations

By Alexandra Lapes and Tracey I. Levy

New York State employers may now suspend implementation of their infectious disease prevention plans (otherwise known as HERO Act plains), as the state’s order designating COVID-19 as a highly contagious communicable disease expired on March 17, 2022 and thus far has not been extended.  As COVID-related mandates have largely been lifted or expired across the tri-state, employers are once again left in a state of uncertainty – after two years of massive regulations, what is still required and where do employers have discretion to act independently in responding to the pandemic?  The short answer is that it varies, and we have endeavored to summarize the current state as of March 2022.

COVID-Related Restrictions and Current Effect

CDC Guidelines Applicable Throughout the County

The CDC continues to require individuals who are two and older to wear a face mask on public transportation and conveyances such as trains and airplane.  Outside that context, the CDC maintains its distinction between those who are and those who are not vaccinated, and recommends that unvaccinated people continue to wear a face mask at public events and gatherings around other people.

New York State and New York City

Masks are no longer mandatory in most settings

Effective as of February 10, 2022, Governor Hochul lifted the indoor mask-or-vaccine mandate for all private sector employers in New York State.  As a result, most employers now have discretion as to whether and when to require face coverings.  However, in addition to the CDC mandate for public transportation, masks are still required for certain high-density and particularly vulnerable settings, including all health care settings regulated by the Department of Health and other related state agencies, nursing homes, adult care facilities, correctional facilities, detention centers, homeless shelters, and domestic violence shelters, public transit and transportation hubs.

NYC customers need no longer prove vaccination status, but proof is still required for employees

New York City suspended the “Key to NYC” mandate as of March 7, 2022, that had required businesses to verify vaccination status as a condition of entry to indoor dining, fitness, and entertainment venues in the city.  However, through a new Mayoral Executive Order issued on March 4, 2022 and ongoing requirements by the New York City Department of Health and Mental Hygiene (DOHMH), all employees who work in-person in New York City – for every type of employer – must provide or have provided proof of vaccination against COVID-19 to their employers.  Employers must exclude from the workplace any worker who has not provided such proof, unless an exception due to a religious or medical accommodation applies, or a worker only enters the workplace for a quick and limited purpose.

In addition to the vaccination requirement, New York City employers currently must continue to:

  • Post an official DOHMH sign in a conspicuous location at the business; and
  • Keep a record of each worker’s proof of vaccination (including ensuring employees get their second dose) and any reasonable accommodations.

Employers who previously posted a notice per the Key to NYC requirements do not need to post the DOHMH attestation sign.

New Jersey and Connecticut – Reprieve from Face Coverings

For New Jersey employers, as of March 7, 2022, the statewide mask mandate has been lifted, as the Governor signed an executive order withdrawing the declaration of COVID-19 as a public health emergency.

For most employers in Connecticut, all business sector rules enacted to prevent the spread of COVID-19 were lifted as of May 19, 2021, with limited exceptions where face coverings were still required.  Those exceptions are still in effect in accordance with the latest order issued by the Connecticut Public Health Commissioner effective February 28, 2022, and face masks are therefore still required in schools, healthcare settings, and shelters.

Ongoing COVID Leave Obligations

Employers in New York State, New York City, and New Jersey must be aware of continuing COVID leave obligations, particularly concerning paid sick leaves, that remain in effect.  We have broken down the key pieces of COVID-related leave provisions effective in the tri-state area below.

For more information regarding NY and NJ on-going pandemic-related paid leave provisions see this blog article, and the series of COVID-19 leave articles on our blog.

Stay Informed

The news is swirling with reports of new COVID-19 variants developing, some of which may trigger future restrictions.  Therefore it is prudent for employers to continue to monitor for further updates.  We have provided links below for current standards issued at the federal, state and local levels impacting employers in the New York tri-state area.

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4

February, 2022

Wait, I Have to Pay Employees for Separate COVID Leave?

By Alexandra Lapes and Tracey I. Levy

Employers in New York State, New York City, and New Jersey must be aware of continuing COVID leave obligations, particularly concerning paid sick leave, that remain in effect despite the expiration of the federal Families First Coronavirus Response Act (FFCRA), which had provided a tax credit to offset the cost of paid time off in these circumstances.

New York State COVID-Related Leave is Ongoing

In addition to any other type of paid or unpaid time off that an employer may offer under its policies or to comply with legal requirements, New York State employers must continue to provide time off for COVID-related reasons, such as for employees who need to take leave because they are under a mandatory or precautionary order of quarantine or isolation due to COVID-19.  New York’s separate COVID-19 sick leave has no expiration date, and as employers are slowly discovering, that means these obligations are long-lasting.

As we noted previously in a series of COVID-19 leave articles on our blog, for many employers COVID-19 sick leave must be paid, depending on the size and net income of the employer.  By way of recap, employers’ obligations for COVID-19 sick leave are determined by the number of employees as of January 1, 2020, and provide for leave as follows:

  • If the employer has 10 or less employees and a net income less than $1 million – provide unpaid job-protected leave until the termination of the order of quarantine or isolation;
  • For all other employers with 99 or fewer employees – provide at least 5 days of paid job-protected leave and additional job-protected unpaid leave until the termination of the order of quarantine or isolation; and
  • If the employer has 100 or more employees – provide 14 days of paid job-protected leave during the order of quarantine or isolation.

New York State provides no reimbursement or subsidy to employers for the paid sick leave benefits required under the law.  Notably, however, employees are not eligible for paid COVID-19 sick leave if they are able to work remotely.

NY Employees Can Take Paid COVID Leave Three Times in the Same Year

Employers in New York State are required to provide COVID-19 sick leave benefits as described above for up to three periods of covered leave per employee. However, the second and third periods of leave must be for a quarantine based on the employee’s own condition and not merely as a precaution due to exposure to others who tested position for COVID-19.

NYS STD/PFL Benefits Are Also Available for COVID-Related Reasons

New York State Short-Term Disability (STD) and Paid Family Leave (PFL) benefits are available simultaneously, with no waiting period, to employees of small and medium employers for the otherwise unpaid portion of a period of leave based on being personally subject to a government-issued quarantine or isolation order.  In other words, employers that are not required to provide more than five days of paid COVID-19 sick leave should direct their employees to apply to the state’s STD/PFL programs for paid benefits for the duration of their quarantine or isolation period.

PFL also is available for an employee to care for a child for the duration of a quarantine or isolation period, and for up to 12 weeks of leave per year for care of a family member who is sick with COVID-19 where the family member’s sickness meets the PFL definition of a serious health condition.

NY Requires Additional Paid Time Off for Vaccinations

Employers in New York State are required to grant employees up to four hours of paid time off for each shot of the COVID-19 vaccine.  Leave for vaccination must be paid at an employee’s regular rate of pay and is in addition to all other paid leaves provided by the employer.  This particular mandate of paid leave for vaccination only applies to vaccinations after its March 12, 2021 effective date, and the law is set to expire by the end of 2022.

New York City added still another paid leave obligation, and it requires employers to provide paid time off for employees’ children to be vaccinated.  Employees can use up to four hours of additional paid sick time, per child, per injection, for the vaccination itself and for care due to temporary side effects.

New Jersey Employers Have Ongoing COVID-Related Leave Requirements

New Jersey requires employers to provide paid leave under the state’s expanded New Jersey Earned Sick and Safe Leave Law (NJESSL), and this obligation is ongoing.  In addition, COVID-19 leave benefits made available to employees through New Jersey’s Family Leave Act (NJFLA) and Temporary Disability Benefits Law (NJTDBL) program remain in effect indefinitely.  While expanded in specific response to COVID-19, these amendments all turn more broadly on the declaration of a state of emergency by the governor due to an epidemic or public health emergency, and directives that an employee or the employee’s family member quarantine or isolate as a result of exposure to a communicable disease.

Notably, New Jersey expanded only the reasons why employees may qualify for NJESSL and the state’s leave benefit programs; it did not add any additional paid or unpaid leave entitlements.  Also, and perhaps for this reason, employees who are able to work remotely while subject to a quarantine order may still be eligible for these New Jersey COVID-related leave benefits, as the New Jersey law does not expressly preclude those employees from taking NJESSL for COVID-related reasons.

NJESSL Extends to Time Getting Vaccinated

The New Jersey Department of Labor has declared that employees are entitled to use NJESSL to get the COVID-19 vaccine, including travel time and recovery from side effects.  The Department created this memo for employees to provide to their employer regarding their additional rights to paid sick leave under NJESSL for COVID-19 vaccine leave, as vaccination is not listed as a reason for time off under the NJESSL law.

Takeaways

As the threat of COVID-19 persists for a third year and new variants emerge to infect more people and some people multiple times, employers in New York and New Jersey should note these ongoing pandemic-related paid leave provisions available to their employees.

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10

January, 2022

NY Employers Must Recognize Employee Requests for Workplace Safety Committees

By Nida Jamshed and Tracey I. Levy

New York employers focusing on COVID-19 compliance may overlook additional workplace health and safety obligations imposed by the HERO Act, for which the New York State Department of Labor issued proposed regulations on December 22, 2021.

What is the NY HERO Act?

In May 2021, New York passed the HERO Act, Part 1 of which requires all private employers to adopt a health and safety plan for the protection of employees when there is an airborne infectious disease.  As we have discussed in prior blog articles, those plans should have been adopted by September 5, 2021, and have been activated since Labor Day to prevent the spread of COVID-19.

Part 2 of the NY HERO Act requires employers with 10 or more employees in New York State to allow workplace safety committees by employees – even in non-unionized workplaces.  The HERO Act does not require any employer to develop a workplace safety committee; rather the law provides that if employees choose to create one, the employer may not disallow it. The Department of Labor (DOL) issued a proposed rule on December 22, 2021, which will not take effect until after formal hearings, that lays out the scope of employer involvement in such a committee and addresses different categories of the law: establishment of committees, composition, rules, and employer obligations.

Establishment:

To establish a workplace safety committee, two or more non-supervisory employees who work at a single worksite will need to submit a written request to the employer.  This can be in the form of one written request signed by two non-supervisory employees, or two separate requests. Employers must respond to the request with “reasonable promptness,” but that term is not defined in the proposed regulations. If an employer already has a workplace safety committee that is otherwise consistent with the labor laws, then it just needs to inform the employees of the existing committee. If there is no committee already in place, the employer has five days to provide notice to employees of the recognition of the committee.

Composition:

The NY HERO Act also sets rules regarding the composition of the committees to ensure that the voice of the employees is adequately heard. The ratio is set with at least two non-supervisory employees to one employer representative (a 2:1 ratio with majority to the employees).  The employer can appoint its own representatives in the 2:1 ratio, but non-supervisory employees should not be selected by the employer. For employees who are unionized, the union representative will select the employee representative for the committee. For non-unionized employees, the representative can be selected by any means as long as the employer does not interfere.

If the worksite has less than 10 employees, then the committee should have three members, with two non-supervisory employees and one employer representative. If there are less than 36 employees at the worksite, then the number of committee members is a maximum of one-third of the employees. If there are more than 36 employees, then the maximum amount of committee members is twelve. Lastly, committees must be co-chaired by a non-supervisory employee and an employer representative.

Rules:

The committee has the authority to adopt its own rules, procedures, and bylaws consistent with the HERO Act. If none are adopted, then it can only act by a majority vote of its members. The committees need to ensure that meetings do not unreasonably conflict with the employers’ operations and that the committee responsibilities do not interfere with work responsibilities. The co-chairs must also notify the employer of any changes to the membership.

Employer Obligations:

After a workplace safety committee is established, employers have a few additional obligations.

  • A duty to respond: The employer has a duty to respond to each of the committees’ concerns and related requests for policies or reports in writing and in a reasonable time. Again, a reasonable time is not defined in the law.
  • Notice of enforcement visits: If there are any governmental safety and health enforcement visits that the employer knows are planned, then the employer must give the committee notice of that visit unless it is prohibited by law.
  • Meetings and trainings on company time: The employer must allow trainings and meetings during working hours and on company time, provided that committee trainings do not exceed four hours per calendar year and meetings, conducted at least once per quarter, do not exceed two hours. If a meeting does exceed two hours, then employees need not be paid for the additional meeting time.
  • Protecting confidentiality: The employer must make its best efforts to refrain from disclosing information to the committee or its members that is either outside of the scope of the workplace safety committee or otherwise would be prohibited by law, such as the vaccination status of employees.

Next Steps:

Employers need to be responsive to any requests they receive from employees seeking to form a workplace safety committee.  While the specific processes outlined by the DOL for forming and governing such committees have not been finalized, this portion of the HERO Act itself took effect in November 2021, and New York employers therefore are already under an obligation to recognize employee requests to form such committees.

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21

December, 2021

Diverging Vaccine Mandates at NYC/NYS/Fed Levels Present Pitfalls for Unwary Employers

By: Alexandra Lapes and Tracey I. Levy

Employers in New York face a panoply of overlapping and inconsistent obligations at the local, state and federal levels as the government seeks to contend with the latest threats from COVID-19.  New York issued a statewide mandate on December 10, 2021, that all businesses and venues must implement a full vaccination requirement or require masks be worn for everyone on their premises, effective as of December 13, 2021.  In tandem with New York State, on December 15, 2021, New York City updated its “Key to NYC” program to require employers implement a vaccine mandate and require employees who work in-person or interact with the public to show proof of vaccination by December 27, 2021.

Businesses that were part of the original Key to NYC program, which required only one dose of a COVID-19 vaccine, must require proof of a second dose by December 27, while all remaining businesses in the city must require employees to show proof of an initial vaccine dose by December 27, and proof of a second dose within 45 days thereafter.  New York City considers a covered workplace to be any location — including a vehicle — where an employee works in the presence of at least one other person.

Presently, the state’s mandate is effective until January 15, 2022, when it will be reevaluated and may be extended, while the city’s mandate does not have a specific sunset date.

  1. The mandate is full vaccination or full masking – no mix and matching permitted

Many employers in recent months had relaxed masking requirements for employees who are fully vaccinated, while those who are not vaccinated were required to wear a mask in the workplace, except when seated in a private office.  The state’s FAQs make clear that hybrid approach is no longer permissible.  An employer must either require everyone on premises to be fully vaccinated or require everyone — regardless of their vaccination status — to wear a face mask in the workplace.

Under state law, an employer can choose whether to implement a vaccine mandate or mask requirement, but the chosen requirement must apply in its entirety to all staff, patrons, and visitors throughout the premises.  New York City employers do not have that option – they must institute a full vaccination mandate.  If full vaccination is not applied uniformly to all, then New York State requires the employer to ensure everyone in its workplace complies with the masking requirement.

  1. Full vaccination currently means up to two doses

New York State defines “fully vaccinated” in accordance with the CDC’s definition, as 14 days past an individual’s last vaccination dose in their initial vaccine series (14 days past the second shot of a two-dose Pfizer-BioNTech or Moderna vaccine; 14 days past the one-shot Janssen/Johnson & Johnson vaccine).

  1. Face masks can be removed only for limited circumstances of limited duration

For businesses adopting a masking requirement, that requirement allows few exceptions.  In offices, masks can be removed only when necessary to eat or drink, or when an employee is alone in an enclosed room. Even in restaurants and bars, unless the business is strictly enforcing a full-vaccination requirement for everyone on premises, patrons can only remove masks when eating or drinking; restaurant staff must be wearing a face mask at all times.  For tv and film production, the talent can remove a face mask during filming, but must maintain six feet of distance from all others, such as the crew and production staff, and masks must otherwise be in place for everyone on premises. Hospital and healthcare settings must continue to ensure all employees and visitors are masked at all times, regardless of vaccination status.

  1. Granting a vaccination exception for those with accommodations means the employer does not have a “full vaccination” program under the New York State mandate

Employers who grant exemptions as an accommodation for individuals because of a medical, religious or other legally protected reason and permit those individuals entry on the premises apparently must then implement a masking requirement for everyone.  While the impact of accommodations on the full vaccination requirement is not explicitly addressed in the FAQs, one specific FAQ juxtaposes the prohibition on a hybrid approach of full vaccination or masking with a reference to the continuing responsibility of “unvaccinated individuals, including those with medical exemptions” to wear masks in accordance with CDC guidance.  The FAQs also footnote that they should be interpreted consistently with the Americans with Disabilities Act, workplace safety guidelines and applicable regulations.  It therefore appears that, when exceptions are made and a full-course vaccine requirement cannot be maintained in its entirety, all individuals in the workplace must be held to a masking requirement.

  1. Employers cannot automatically ban from the workplace all employees requesting a vaccination exemption as a reasonable accommodation

New Guidance for Employers on Equitable Implementation of COVID-19 Vaccine Requirements, published by the New York City Commission on Human Rights (NYCCHR), reminds New York City employers of their obligation to engage in a “cooperative dialogue” with any employee who requests to be exempted from complying with a vaccination requirement as a reasonable accommodation – whether based on disability, pregnancy, childbirth, lactation, religious beliefs  or observances, or status as a victim of domestic violence, stalking, or sex offenses.  The guidance recognizes that remote work or unpaid leave – actions that keep the unvaccinated individual out of the workplace – may be a reasonable accommodation, but indicates that placing an unvaccinated employee on leave should only be considered if no reasonable accommodation is possible that would enable the employee to continue performing the employee’s job duties in the workplace without posing a direct threat or an undue hardship.

Employees are supposed to submit requests for a reasonable accommodation under the Key to NYC program by December 27, 2021.  If an accommodation is granted, New York City employers must keep record of the basis for the accommodation and any supporting documentation.

  1. NYC requires employers verify and keep record of vaccination status

Under the Key to NYC program, employers cannot rely on an honors system or self-attestation of vaccination status.  Rather, employers must check each employee’s vaccination record (a CDC or other official immunization record, or the NYC COVID Safe App, the CLEAR Health Pass or the Excelsior Pass) and keep a record of each worker’s proof of vaccination, either by:

  • making a copy of the employee’s vaccine proof or a record of a reasonable accommodation with supporting documentation;
  • creating a paper or electronic record that includes the employee’s name, vaccine status including the date they must provide the second dose (if only submitting proof for the first dose), and record of a reasonable accommodation with supporting documentation; or
  • checking each employee’s proof of vaccination before they enter the workplace each day and keeping a record of each verification.

Independent contractors or non-employees must also provide proof of vaccination.  A New York City business can request that a contractor’s employer confirm proof of vaccination.

  1. NYC is requiring signage and certification of compliance

New York City employers have two additional obligations:

  • complete an official attestation sign created by the Department of Health and Mental Hygiene, affirming compliance with the vaccination requirement, and post it in a public space by December 27, 2021 (even if the business also has its own signage about vaccination); and
  • place the Vaccination Required Poster for Businesses in a place that is clearly visible to people before they enter the premises.

Pulling it together, with consideration of pending federal mandates

In addition to the layers of requirements issued by New York State and New York City, employers nation-wide with 100 or more employees need to anticipate that they will be subject to vaccination or weekly testing requirements under an OSHA directive, as we discussed in this prior blog article.  We have summarized the combined impact on the federal, state and local levels in the chart below.

While enforcement of the OSHA directive had been stayed by the federal appellate courts, the Sixth Circuit Court of Appeals dissolved the stay on December 17, 2021.  Pending further action by the Supreme Court, OSHA has advised employers that it will not issue citations for noncompliance before January 10, 2022, and will not issue citations related to the testing option before February 9, 2022, provided the employer is making good faith efforts to come into compliance.

Employers that are imposing a full vaccination requirement, either under the Key to NYC program or to meet the New York State mandate, may need to update their policies, but should otherwise have minimal additional obligations under the OSHA directive.  New York State employers with at least 100 employees that are instead adhering to a full-time masking requirement, and do not already impose a weekly testing obligation for their unvaccinated employees, will have additional compliance obligations under the OSHA directive.

Keep checking for new developments

The only thing certain about these requirements is that there could be more changes in the weeks to come.  Businesses should review their policies and procedures to ensure compliance with the current mandates and continue to check dedicated COVID-19 government websites and get legal advice to ensure compliance with any new requirements.

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19

November, 2021

NYCCHR/EEOC Diverge on Accommodations to Vaccine Mandates

By Tracey I. Levy and Alex Lapes

Recent updates to technical assistance from the Equal Employment Opportunity Commission (EEOC) and guidance from the New York City Commission on Human Rights (Commission) reflect the continuously evolving expectations with regard to vaccine mandates and adherence to accommodation requirements under equal employment opportunity laws, and also highlight some differences in approach that New York City employers cannot overlook.  The challenge for employers is that, while they are permitted (and in some cases required) to mandate that all employees who physically enter the workplace be vaccinated against COVID-19, when enforcing that mandate, they need to provide reasonable accommodations to employees who object to a vaccination requirement due to:

  • disability;
  • pregnancy (either in its own right under New York law or for pregnancy-related conditions that constitute a disability under federal law); or
  • a sincerely held religious belief, practice, or observance.

The EEOC has updated its technical assistance Q&A’s on COVID-19 and EEO laws three separate times in the past month (October 13, 25, and 28, 2021), particularly Section K and new Section L, to address various issues that may arise when employers navigate vaccine-related accommodation requests.  Piggybacking on the EEOC’s guidance, on November 1, 2021, the Commission updated its COVID-19 resources to adopt some, but not all, of the EEOC’s stance on the subject of accommodations.

Divergence on What Triggers Consideration of a Reasonable Accommodation

EEOC guidance clarifies that an employee or a third party (i.e. employee’s healthcare provider) must notify the employer of the need for a reasonable accommodation because of a qualifying reason.  Under federal law, accommodation requests based on medical conditions (or underlying conditions) or religious beliefs or practices do not require the employer to initiate that process and, absent notice from the employee about such a request, employers have no obligation to inquire or take action, even if an employer knows an employee is at higher risk for severe illness if the employee contracts COVID-19.

Conversely, the Commission has stated that, under the New York City Human Rights Law (NYCHRL), employers are required to initiate the conversation and to engage in a “cooperative dialogue” with an employee when the employer knows or has reason to know that the employee may require a reasonable accommodation.  For example, a New York City employer who knows that an employee has a medical condition that might place the employee at “higher risk for severe illness” if the employee contracts COVID-19 is required under city law to engage with the employee in a cooperative dialogue about a potential accommodation, even without the employee requesting one.  In order to satisfy this obligation, the Commission recommends New York City employers remind all staff of the employer’s policies regarding reasonable accommodations and the process for requesting those accommodations.

Disability Considerations

The EEOC and the Commission are consistent on their guidance that simply asking for information to confirm whether an employee is vaccinated against COVID-19 is permissible and is not a disability-related inquiry.  However, employers who require employees to provide medical documentation on vaccine status must ensure that, as with all medical information, it is kept confidential and separate from other personnel files.

Pregnancy Considerations

Under federal law, unless an employee has a pregnancy-related condition that qualifies as a disability, the EEOC has explained that employers are encouraged but not required to explore reasonable accommodations for a pregnant employee.  The EEOC further noted that employers must ensure pregnant employees receive the same job modifications (including changes to work schedules, telework, or changes to work schedules or assignments) in response to their pregnancy-related accommodation requests as would other employees who are similar in their ability or inability to work.

The Commission goes one step beyond the EEOC, and affirmatively requires employers to engage in a cooperative dialogue and explore possible accommodations for a pregnant employee who requests an exemption from a vaccination mandate.

Religious Objection to Vaccination

Most of the new EEOC guidance pertains to religious objections to an employer’s vaccine mandate, and in that context the NYC Commission has explicitly adopted the following provisions from the EEOC’s guidance:

  • Employees and applicants must inform their employer if they seek exemption from a vaccine mandate based on a sincerely held religious belief, practice, or observance. While there are no “magic words”, the employee or applicant has an obligation to notify the employer if there is a conflict between their religious beliefs and the employer’s vaccine mandate.
  • Employers are permitted to ask the employee to explain how the employee’s religious beliefs conflict with the employer’s vaccine mandate. Employers have no obligation to accommodate employees who seek exceptions to a COVID-19 vaccination requirement based on social, political, or economic views, or personal preferences.  Therefore, the EEOC has stated, and the Commission has agreed, employers are permitted to make a limited factual inquiry and seek additional information from the employee, if they have an objective basis to question the sincerity of a particular belief.  Factors to be considered in evaluating the credibility of an employee’s sincerity as to a religious belief include prior inconsistent conduct (with the caveat that employees need not be scrupulous in their religious observance), whether the accommodation benefit would likely be sought for nonreligious reasons, whether the timing of the request makes it suspect, and whether the employer has other reason to believe the accommodation is not for religious reasons.
  • Significantly, though, when weighing these factors, employers also need to be mindful that the definition of religion is broad and protects both the major organized religions and “religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.”   The EEOC’s own religious accommodation request form, which it offers as an example of an appropriate scope of inquiry, is very limited in its probing of an individual’s religious beliefs.
  • Employers do not need to grant the requests of all employees who seek an accommodation based on religion. Employers are permitted to take into account the cumulative cost or burden of granting accommodations to other employees and should evaluate religious objections on a case-by-case basis depending on the specific factual circumstances of the employer’s business. As with all accommodations, if more than one accommodation would effectively eliminate the religious conflict, then the employer may choose which accommodation to offer.  An employer may also discontinue a previously granted accommodation based on changed circumstances, although the EEOC suggests as a best practice that employers discuss and evaluate alternative accommodations with the employee before discontinuing a religious accommodation.

The Commission has further expressed its agreement with the EEOC’s guidance that employers need not accommodate an employee’s belief if the employer demonstrates “undue hardship” on its operations.  In practice, however, the EEOC and the Commission define undue hardship in this context quite differently.  A minimal cost to accommodate an employee’s religious belief is an undue hardship under Title VII and employers may consider direct monetary costs as well as the burden on the employer to prevent the risk of the spread of COVID-19 to other employees or the public.  The EEOC’s guidance notes an employer may consider whether the employee works alone or with others, their contact with the public, and especially their contact with vulnerable individuals.

In contrast, the NYCHRL defines undue hardship as “an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or violation of a bona fide seniority system).” New York City employers should consider such factors as the identifiable cost of the accommodation, how many individuals will need the accommodation based on religion, and for employers with multiple facilities, the degree to which geographic separateness or administrative or fiscal relationship will make the accommodation more or less difficult.  Notably, under the NYCHRL, a religious accommodation will only be deemed an undue hardship “if it will result in the inability of an employee who is seeking a religious accommodation to perform the essential functions of the position.”

Takeaways

Employers in New York need to be ever mindful that compliance with federal requirements and guidance from the EEOC, OSHA, the CDC and other federal government agencies merely sets the floor in terms of legal standards.  New York State and New York City can and have been imposing additional obligations on employers and granting greater protections for employees in the context of addressing COVID-19.  New York City employers who mandate vaccinations need to ensure their policies and procedures allow employees to request an exemption from that requirement as a reasonable accommodation and entertain that request in a manner that does not discriminate or treat differently any employees based on protected characteristics.

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