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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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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21

July, 2021

Employers Throughout the NY Tri-State Area Face New Obligations: Takeaways Summer 2021

Summer 2021 has brought changes for employers throughout the New York tri-state area, as New York is mandating employers plan for the next pandemic; New Jersey is cracking down on wage law violations; and Connecticut passed four significant new employment mandates on cannabis use, nursing mothers, pay equity and voting. Employer obligations in response to COVID, on the other hand, are now dictated largely at the federal level. Our Summer 2021 issue of Takeaways covers all these legal developments, as well as the most recent federal employment law changes and relevant court decisions.

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25

June, 2021

Protecting the Unvaccinated Presents an Employee Relations Quandary for Employers

By Tracey I. Levy

Under the Biden administration, the CDC has taken a strong position in support of vaccinating as many individuals in the United States as possible. The latest, very well-publicized carrot to incentivize that effort has come in the form of a lifting of COVID-19-related precautionary safety measures for those who are vaccinated. Masking, social distancing, workplace signage about effective hand washing – are all a relic of the past for those who have reached the point of “fully vaccinated.” But as discussed in our prior blog post, the guidance from OSHA is that masking and other COVID-19 precautions should remain in place for employees who are not vaccinated.

Very few workplaces have achieved the point of 100 percent vaccination, and therefore the practical effect of the government’s duality in approach is to bring the full weight of peer pressure down on those who are not vaccinated. The guidance from the EEOC stresses that accommodations must be made for those who are not vaccinated for medical or religious reasons, but employers who endeavor to do so are running into a significant employee relations problem. How do you provide vaccinated employees with the flexibility to resume the panoply of normal activities, while the unvaccinated subset of the workplace is immediately recognizable by their masks and social distancing measures? How do you resume pre-COVID activities like business travel, especially internationally, when a subset of your workforce may be unable to participate due to COVID restrictions? For workplaces that have been working largely remotely since March 2020 and are eagerly anticipating bringing employees back to the office in-person (at least several days per week), how do you rebuild team culture and fully integrate your newest hires who perhaps only know their colleagues by screen shots when any indoor group gathering will necessarily require sufficient spacing of a subset of the team and face masks will quickly brand those who opted out of vaccination?

There is no federal government guidance on this, currently, and a subset of states are contemplating laws similar to that which already took effect in Montana, which prohibit private employers from treating individuals differently based on vaccination status. Options employers may want to consider include:

• Maintain masking protocols in common areas, like pantries, break rooms and rest rooms;

o Those who are vaccinated may balk at being asked to continue masking, but the imposition is relatively modest, especially as the past year has gotten many individuals accustomed to having a mask on their person whenever they are out with others.

• Permit vaccinated employees to remove masks at their workspaces, and adjust seating arrangements where possible to provide social distancing between those who are not vaccinated;

• Explore options for having meetings, particularly larger gatherings, at outdoor venues;

• Schedule team meetings in conference rooms that allow sufficient spacing for six feet of social distancing, at least to accommodate the subset of employees who are unvaccinated;

o A conference room built for 20 can be reduced to only accommodating seven if everyone is socially-distanced, but a hybrid approach, in which social distancing might only be necessary for two or three individuals, could potentially allow that same conference room to seat a team of 15.

• Alternatively, continue to conduct team meetings by videoconference;

o One of the great benefits of meetings in which the entire team is participating by videoconference is that the participants all are equally-spaced and sized, and can more closely approximate speaking at the same audio level. That is a great equalizer when compared to in-person meetings in which some attendees can physically dominate the room and the conversation, and continuing videoconference meetings in the current environment similarly places the vaccinated and the unvaccinated on an equal plane.

• Reserve one or more smaller conference rooms or similar workspaces, perhaps outfitted with a portable HEPA filter for better air circulation, for use by unvaccinated employees when they are having one-to-one meetings with others;

o Some unvaccinated employees, especially those who are not vaccinated due to underlying medical conditions, may find their own mask to be insufficient protection when meeting with others who may not be masked, including clients or visitors whose vaccination status may not be known. Offering those employees an alternative, larger work space in which to conduct their meetings with social distancing and additional air filtration can reduce that concern, without “outing” the unvaccinated employee as someone with an underlying medical condition.

• Explore team-building activities that leverage the outdoors;

o As employers look to rebuild a cohesive culture, planning activities or events outside notably reduces the risks of COVID-19 exposure and enables unvaccinated employees to participate more freely.

• Advise managers, and all employees, to be sensitive to the range of reasons why employees may choose not to be vaccinated;

o To the same extent that we ask managers to address or report instances in which employees are engaging in harassment, retaliation or other inappropriate behaviors under respectful workplace policies, we want them to similarly address or report instances in which employees are being harassed or retaliated against based on their vaccination status.

• Regularly thank employees for adhering to protocols and being sensitive to their colleagues.

o None of this is easy, the stress of the past year has been overwhelming for many, and those who are vaccinated may have limited patience for continued COVID-19 precautions. Employers that acknowledge the strain and continue to express appreciation can help mitigate the negative impact on employee morale.

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