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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5

November, 2021

Window is Short to Meet OSHA Vaccination Mandate; NY Employers Need to Consider State Law on Paying for Testing

By Tracey I. Levy

Update 1/25/22:Effective January 26, 2022, OSHA has withdrawn its ETS, which means large employers are no longer subject to the vaccination or testing mandate.  Notably, OSHA further posted that is seeking to move the standards embodied in the ETS forward as a proposed rule and finalize a permanent COVID-19 Healthcare Standard.

Update 12/21/21: The Sixth U.S. Circuit Court of Appeals dissolved the stay of OSHA’s ETS on December 17, 2021 and, 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.

Update 11/18/21: In response to pending lawsuits and the Fifth Circuit’s granting of a motion to stay OSHA’s new COVID-19 Vaccination and Testing ETS, OSHA has posted to its website that it “has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”


Private employers with 100 or more employees (this counts both part-time and full-time employees, wherever they are located) must now take appropriate steps to comply with the Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) with regard to COVID-19 vaccination and testing requirements.  The new ETS requires covered employers to ensure all employees are either fully vaccinated or submit to weekly COVID-19 testing, unless the employer is already covered under the Safer Federal Workforce Guidance for federal contractors and subcontractors or the previously issued OSHA ETS for healthcare providers.  The ETS for large employers is comprised of three key requirements:

  1. A written mandatory vaccination policy, optionally with a weekly testing alternative

Covered employers must develop, implement and enforce mandatory COVID-19 vaccination policies that apply to all employees who report to a workplace where other individuals are present, unless the employees are working full-time from home or work exclusively outdoors.  The ETS purportedly recognizes only three exceptions to the vaccination mandate:

  • If a vaccine is medically contraindicated;
  • If it is medically necessary to delay an employee’s vaccination; or
  • If an employee is legally entitled to a reasonable accommodation under federal law because of a disability or sincerely held religious belief.

However, OSHA further grants employers the option of permitting employees who are not fully vaccinated to continue coming to the workplace, provided the unvaccinated employees are tested at least weekly for COVID-19 and wear a face covering in the workplace.  With regard to all these requirements, employers must also consider employees’ requests for a reasonable accommodation based on disability or religion.

  1. Documented confirmation of every employee’s vaccination status

Covered employers are required to determine the vaccination status of each employee, supported by documentation and not the honor system, and maintain records and a roster of every employee’s vaccination status, in the same manner as other confidential medical information.  The ETS states that if an employer has already ascertained an employee’s vaccination status and retained records of that ascertainment, then it need not reconfirm vaccination status for those employees for which it has prior documentation.

  1. Support for vaccination through reasonable time off

Covered employers must provide employees with up to four hours of paid time off, separate from any other paid time off available to the employee, so that the employee can receive a primary vaccination dose.  In addition, employees need to be allowed reasonable time and use of available paid sick leave to recover from any side effects from vaccination.  This final requirement is consistent with current New York law mandates with regard to employees having separate paid time off for vaccination and being entitled to use available paid leave to recover from the side effects of such.

Employer Compliance Obligations

In developing their approach to vaccinations, employers must:

  • Require that employees promptly provide notice when they receive a positive COVID-19 test or diagnosis;
  • Remove from the workplace any employee who tests positive or is diagnosed with COVID-19, continuing until the employee meets return to work criteria (discussed below);
  • Require that any employee who is not fully vaccinated wears a face covering (or face mask or respirator) when indoors and when occupying a vehicle with another person for work purposes.  The face covering may only be removed if the employee is alone in a fully-enclosed workspace, for a limited time while eating or drinking or for security identification purposes, or if its use is not feasible or creates a greater hazard such as where the work requires use of the employee’s uncovered mouth or a face covering presents a risk of serious injury or death;
  • Distribute literature about the requirements of the ETS, the employer’s responsive policies, the benefits of being vaccinated (by providing the CDC’s Things to Know document), protections against discrimination and retaliation for reporting violations or exercising rights under the OSH Act, and the laws that provide criminal penalties for knowingly providing false statements or documentation;
  • Notify OSHA of work-related COVID-19 fatalities within eight hours of learning of them, and of work-related COVID-19 in-patient hospitalizations within 24 hours of learning of them; and
  • Within one business day of receiving a request, make available for employees and their authorized representatives to examine and copy the individual’s COVID-19 vaccine documentation and test results, and, if additionally requested, provide the aggregate number of fully vaccinated employees and total headcount at a workplace.

Covered employers have until December 6, 2021 to comply with most provisions of the ETS, and were given a 60-day window until January 4, 2022 to comply with the testing requirement.

If an employee has been removed from the workplace due to a positive COVID-19 antigen test, the employee cannot return to the workplace until the employee either receives a negative result on a COVID-19 NAAT test, meets the return-to-work criteria in the CDC’s Isolation Guidance, or is cleared to return to work by a licensed healthcare provider.  OSHA noted that the ETS does not require employers to provide paid time off to employees who are removed from the workplace due to a positive COVID-19 test or diagnosis.  Under New York law, however, as discussed in our previous blog articles, employers are required to provide special paid leave in these circumstances for up to three instances of removal from the workplace.

In FAQs issued to accompany the ETS, OSHA outlined its expectation that an employer’s written vaccination policy will include: the effective date and who is covered; the requirements for COVID-19 vaccination, deadlines and applicable exclusions; information on determining an employee’s vaccination status and how the information will be collected; available leave for vaccination purposes; notification of positive COVID-19 tests and the requirement of removal from the workplace; all the information about requirements and protections specified as literature to be distributed; disciplinary action for employees who do not abide by the policy; and procedures for compliance and enforcement.

Payment for Testing Time and Expenses

One open issue under the ETS pertains to payment for the time employees spend getting tested weekly, and the costs of the tests themselves.  OSHA stated that employers are not required, under the ETS, to pay for any costs associated with testing but other laws, regulations or collective bargaining requirements may impose such an obligation.

Exempt employees are, by definition, required to be paid their salary regardless of the number of hours worked in a particular day and, therefore, should not experience any reduction in pay for time spent testing for COVID-19, nor should they be entitled to any additional compensation for time spent outside their normal work hours undergoing weekly testing.  For non-exempt employees, regulations issued by the U.S. Department of Labor (DOL) provide that “time spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee’s normal working hours on days when he is working constitutes hours worked.” In its FAQs on COVID-19 and the Fair Labor Standards Act, the DOL states that time spent undergoing testing during the workday must be paid.

If the testing is being conducted before or after the non-exempt employee’s workday or on non-workdays, then the same FAQs from the DOL note that an employee is to be compensated if it is for time spent to perform tasks required by the employer that are necessary for the work the employee is paid to do.  The obligation to compensate employees under the DOL’s test thus turns on the necessity of the screening or testing to enable the employees to perform their jobs safely and effectively.  The DOL provides two examples, one involving a grocery store cashier and one a nurse, as instances in which testing or screening was “integral and indispensable” to the employees’ work and thereby compensable time even outside of regular work hours.  Under the new OSHA ETS, vaccination or weekly testing arguably has been declared “integral and indispensable” to the jobs of all covered employees.  Many employers have chosen to administer testing on premises during work hours, so as to obviate further deliberation over this issue.  Absent further guidance from the DOL, employers that are considering an alternative approach that does not involve testing at work would be advised to consult with legal counsel on whether and when employees’ time needs to be compensated.

The federal wage and hour laws do not address paying for the cost of the test itself.  Section 201-b of the New York Labor Law states that an employer cannot require an employee as a condition of continued employment to pay the cost of any medical examination or the cost of furnishing any health certificate where:

  • the employee is not covered by any health insurance or the employee’s health insurance does not cover the exam/certificate or the employer does not provide qualified medical personnel to conduct the exam without cost to the employee, and
  • the exam or certificate is not required by a state, local, or federal law.

A COVID-19 test likely falls into the category of a medical examination or health certificate.  To the extent, however, that employees are covered by health insurance and their policy covers the cost of testing, the employer has no payment obligation.  Where health insurance coverage does not apply, an employer might be able to assert that the federal legal requirement is vaccination or testing, and thus weekly testing is an option elected by the employee, not a legal requirement, and need not be paid for by the employer.  This too is a position that employers should review with legal counsel.

The analysis is likely the same for testing that an employee obtains as clearance to return to work following a positive COVID-19 test or diagnosis, since in that context an employee also has an alternative option of waiting until the end of the recommended isolation period, in lieu of additional testing.  New York City employers, however, additionally need to consider the Earned Sick and Safe Time Act.  If the employer requires testing or clearance from a healthcare provider as a condition of returning to work, then the city law requires employers to reimburse employees for fees charged by healthcare providers for sick leave documentation that the employer requested.

What’s Next

Covered employers that have not already imposed a vaccination mandate have a very limited window in which to put their procedures in place.  Those employers that already have protocols with regard to vaccinations and testing still have work to do, to confirm that their vaccination and testing records are in order and they have a compliant written policy, and to distribute the required literature to employees.  Employers may also need to obtain legal advice with regard to compensating for the time and costs of employee COVID-19 testing.

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25

October, 2021

Table of Vaccine Mandates and Latest Legal Updates: Takeaways Fall 2021

Our Fall 2021 issue of Takeaways covers the state of COVID-19 workplace requirements and guidelines (this time focusing on vaccinations), new age discrimination protections in New Jersey and Connecticut, changes in wage and hour requirements, the newest New York City guidance on background checks, and the Biden administration’s gradual roll back of determinations from the past four years to maximize employee protections.

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