9

May, 2022

Consider Transparency of Outcomes from Workplace Investigations

By Tracey I. Levy

What if we were less secretive about outcomes in our workplace investigations?

Conventional wisdom, and the cautionary note I most commonly provide when conducting harassment prevention training for organizations, is that the organization will not share specifics about whether and what remedial actions are being taken following a workplace investigation of concerns of harassment, discrimination, retaliation or other inappropriate workplace behaviors.  We explain that this is out of respect for the respondent and consistent with disciplinary process.  Just as I would not tell employee A that employee B was being written up for excessive lateness, I will not tell a complainant that a respondent has been written up, denied a promotion, had their bonus cut, or all of the above based on a violation of the organization’s policies.

But does that approach still make sense?  What do we sacrifice in the process?  Post #MeToo/Black Lives Matter, this may be the time for organizations to consider doing things differently.

Demonstrating Accountability

Earlier in my career, when I was conducting investigations in-house as an employee relations specialist, my colleagues and I would periodically vent to one another about the “bad rap” that our team and the human resources function more generally had when it came to addressing employee concerns.  We often took responsive actions following workplace investigations, with a host of wide-ranging consequences for respondents. We felt we were acting appropriately to achieve the primary objective — getting the behavior to stop, and deterring that individual from doing it again.  But because we were silent about what actions were taken, complainants assumed we had done little more than pay lip service to their complaints.  We were powerless to correct employees’ misimpression, because we were adhering to the conventional wisdom of respecting the respondent’s privacy.  I used to rationalize that it only was HR’s reputation that suffered from this process. I now think the harm is broader.

Accountability is a key component of any initiative to create a more respectful workplace, one that does not tolerate harassment, discrimination or retaliation. The EEOC made that clear in its seminal 2016 report on workplace training and effective prevention of harassing behavior. On a fundamental level, organizations usually do hold employees personally accountable for their inappropriate workplace behaviors, at least following a workplace complaint and investigation. If no one is told details of the outcome, however, then the organization’s responsive actions at best serve the limited purpose of deterring that particular individual from engaging in further inappropriate conduct. There can be no broader deterrent effect absent some transparency.

Alternative Approaches

One option is for organizations periodically to provide their workforce with aggregate data on the responsive actions taken following workplace investigations.  That serves the beneficial purpose of disclosing the range of actions taken, and how frequently they occur.  The downside is that the data may not mean much without additionally disclosing how many claims were substantiated, and the types of behaviors that were found to have occurred.  Each disclosure runs the risk of raising more questions than it answers.  Particularly if the number of claims found unsubstantiated is not considered sufficiently “high” from the employees’ perspective, organizations may find the aggregate reporting is too generalized to present the desired message of a responsive leadership team.

So how about full transparency — informing the complainant in an individual investigation of the responsive action being taken by the organization, including possible disciplinary action of the respondent.  Clearly there are downsides to this approach in that it tarnishes the reputation of the respondent and may add fodder to the gossip mill, thereby making it harder for the respondent to move forward.  But there are upsides as well, in that the complainant receives specific information about how the organization has responded, and is not left to wonder or doubt the sincerity of the organization’s approach.  Also, as employees learn that responsive actions are no longer being kept confidential, the deterrent effect may be enhanced — individuals may think twice about their behavior if they know that their actions will have public consequences.

Take Time to Evaluate Options

Each alternative presents challenges and concerns, and there is no single “right” answer.  But most organizations default to keeping responsive actions confidential, without even entertaining the possibility of an alternative approach.  I invite you to consider something different, weigh the upsides and downsides of greater transparency, and do not fall into the trap of maintaining the status quo simply for the sake of being consistent with past practice.

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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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13

March, 2022

New Fed Arbitration Ban Warrants Employers Redouble Measures to Prevent Workplace Harassment

By Tracey I. Levy

In the aftermath of #MeToo, state legislatures across the country adopted a range of new employment law protections, typically focused around four objectives:

  • advising employees of their legal rights and obligations and how to raise concerns;
  • expanding the scope and remedies under existing laws;
  • lifting the cloak of secrecy around sexual harassment and sexual assault allegations; and
  • ensuring employees can pursue legal claims in a public judicial forum.

A new federal law, which took effect March 3, 2002, addresses the fourth objective by prohibiting forced arbitration of sexual harassment and sexual assault claims.  The new federal law raises the stakes for employers and warrants revisiting existing measures to prevent incidents of offensive sexual conduct in the workplace.

Advising Employees of Their Legal Rights

New York woke up after #MeToo and has since been at the forefront of the effort to educate employees on the prevention of sexual harassment.  The state mandated both that employers adopt sexual harassment prevention policies that include an array of specific provisions, including a written complaint form, and that they conduct annual sexual harassment prevention training for all employees.  Other states, like California and Connecticut, which had existing harassment prevention training mandates for supervisors, imposed new training requirements applicable to all employees.  And some states imposed requirements only for particular industries.  For example, Illinois targeted restaurants and bars with a requirement to have a written sexual harassment prevention policy with specific provisions, while Washington state mandates sexual harassment prevention training for businesses that employ janitors, security guards, hotel housekeepers, or room service attendants.

Expanding Legal Remedies

New York also was one of the first states to respond by expanding the application of its law against sexual harassment – to every employer in the state, and by including independent contractors within its definition of “employees.”  The initially laws myopically applied only to claims of sexual harassment but were subsequently expanded to include all other protected characteristics.  New York also legislatively defined harassment more broadly than most – to cover any situation in which an employee is subject to “inferior terms, conditions or privileges of employment” based on a protected characteristic, without need to prove that the behavior was severe or pervasive.  Other states have made similar changes, including California, Connecticut, Delaware, Illinois, Maryland, and Vermont.

Lifting the Cloak of Secrecy

California, New Jersey, New York and Tennessee were among the states to adopt measures restricting employers from imposing nondisclosure or confidentiality requirements in the context of settlements of sexual harassment or sexual assault claims.  Illinois, Maryland and Vermont have gone a step further, by additionally mandating that employers periodically report certain data on sexual harassment complaints to a state government agency.  Congress similarly sought to limit nondisclosure agreements by amending the tax code in December 2017 to prohibit employers from claiming a deduction for any settlement payment or attorney’s fees related to sexual harassment or abuse if the settlement was subject to a nondisclosure agreement.

Preserving the Ability to Sue in Court

Most of the same states that invalidated nondisclosure or confidentiality requirements also declared invalid any pre-dispute arbitration clause applicable to a sexual harassment claim.  Those efforts have been stymied, however, because employers generally have been successful in arguing that the state laws are preempted by the Federal Arbitration Act.

Where the New Federal Law Fits In

The new federal law on arbitration of sexual harassment and sexual assault claims avoids the problem the states have faced because it falls outside the scope of the Federal Arbitration Act.  The law also is notably different in scope and import because it:

  • applies to all existing and future pre-dispute arbitration agreements throughout the country;
  • applies to all existing and future class action waiver clauses throughout the country; and
  • grants the party asserting a claim for sexual harassment or sexual assault (whether under federal, state or tribal law) the sole discretion to elect whether to proceed through arbitration or in court, and whether to pursue the claim as a class or collective action.

Senator Lindsey Graham, one of the bill’s sponsors, has been quoted as remarking that the new law will force corporate America to “up their game” and adopt new practices.

Employer Actions in a Higher Stakes Environment

Employers looking to decipher what that could mean should start with a two-fold assessment.  First, ensure that you are complying, in all your workplace locations, with the most recent state and local laws regarding harassment prevention.  In particular, confirm that your policies are current, your agreements are compliant, and that you are timely meeting all training requirements.

Second, consider the four objectives that have driven the state legislative responses.  What initiatives might you want to adopt in your workplace to enhance a culture of respect and ensure employees feel comfortable raising concerns?  Are you conducting harassment prevention training at periodic intervals?  Is your harassment prevention training program merely a check-the-compliance-box exercise, or has it been structured, scheduled and promoted to invite heightened awareness and genuine reflection?  Where still legally permissible, what are the upsides and downsides of maintaining confidentiality and nondisclosure agreements, and are they the best approach for your organization at this time of greater transparency?

No employer is immune from complaints of unlawful harassment.  But our experience has been that actions taken by employers to create and sustain a respectful workplace culture can substantially mitigate that risk and create a more productive workplace environment.

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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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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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