13

October, 2021

Shifting Rules Stymie Return to Office

By Tracey I. Levy

Perpetually changing requirements with regard to face coverings, vaccinations, and testing following close contact with someone who tested positive for COVID-19 present thorny challenges for employers looking to bring their workforces back into offices.  While many scuttled their post-Labor Day return-to-office plans due to the proliferation of the COVID-19 Delta variant, employers are once again revisiting and even moving forward with bringing employees back in physical proximity with one another, at least through hybrid work schedules.  For employers in New York, any such initiatives require revisiting (and continually monitoring) the most current federal, state and local guidance with regard to protecting workers against the spread of COVID-19.

OSHA’s Safe Work Guidance and the New York State HERO Act

Updated Safe Work Guidance issued by the Occupational Safety and Health Administration (OSHA) on August 13, 2021 draws distinctions in face covering, testing and quarantine requirements based on employees’ vaccination status.  The OSHA guidance references the latest guidelines from the Centers for Disease Control and Prevention (CDC), and applies to employees outside the healthcare industry, who are separately covered by the OSHA Emergency Temporary Standards for Healthcare.

Distinctions Based on Vaccination Status

The Safe Work Guidance currently advises that fully vaccinated people should:

  • wear a mask in public indoor settings in areas of substantial or high transmission, and may choose to wear a mask in areas with lesser levels of transmission;
  • get tested three to five days following a known exposure to someone with suspected or confirmed COVID-19; and
  • wear a mask in public indoor settings for 14 days after exposure to COVID-19 or until a negative test result.

In contrast, the guidance advises that those workers who are not fully vaccinated should:

  • wear a mask in public indoor settings at all times;
  • maintain social distancing whenever possible;
  • get tested immediately following a known exposure to someone with suspected or confirmed COVID-19 and,
  • if the first test following exposure is negative, get tested again in five to seven days after last exposure or immediately if symptoms develop during quarantine.

Federal vs. NYS Face Mask Standards

OSHA’s guidance with respect to face covering defines “areas of substantial or high transmission” not just by geography, but by industry as well.  Regardless of community transmission rates, OSHA recommends mask-wearing for all employees in manufacturing, meat, seafood and poultry processing facilities, high-volume retailers and grocers, and agriculture processors.

New York State also has once again updated its guidance with regard to face covering.  The general expectation under the standard Model Airborne Infectious Disease Exposure Prevention Plan (HERO Act Plan) issued by New York is that employees will wear appropriate face masks in accordance with applicable guidance from the State Department of Health or the CDC.  Presently, the New York State Department of Health has not issued any such requirements applicable to general office settings (outside select industries like healthcare), which therefore should leave employers to follow the CDC’s guidelines and the OSHA Safe Work Guidance.

However, a mid-September 2021 revision to the HERO Act Plan provides that if all individuals on premises in the workplace (not just the employees) are fully vaccinated, then appropriate face coverings are recommended, but not required.  Past guidance from the CDC with regard to masking had been predicated on whether everyone in the location was vaccinated, but that is not the most current CDC standard.  As New York State is currently designated by the CDC as a high transmission state, the new exception in the HERO Act Plan is arguably more lenient than the OSHA/CDC position on face masks for areas of substantial or high transmission.  This leaves New York employers in something of a quandary as to whether to excuse face masks when the individuals in their workplace are all fully vaccinated.

Encouraging Vaccinations

The OSHA guidance additionally encourages employers to make it easier for workers to get vaccinated by offering paid time off for the vaccine and any recovery from its effects, and it further suggests that employers consider mandating vaccination or regular COVID-19 testing for employees.  New York State employers do not have much optionality on this, as the state has already separately mandated that employers provide paid leave for employees to get vaccinated, and the state has further designated recovery from the effects of a vaccine to be a permitted use under the state’s general paid sick leave law.

Additional Precautions and Accommodating Disabilities

OSHA’s Safe Work Guidance retains the now relatively familiar recommendations with regard to social distancing, educating and training workers on safe work protocols, maintaining ventilation systems, and performing routine cleaning and disinfection.  All of those factors similarly comprise elements that employers need to have addressed in their HERO Act plans.

Finally, OSHA’s guidance reminds employers of their obligation to take steps to protect those who cannot be vaccinated or cannot use face coverings due to a disability.  While not expressly stated in the Safe Work Guidance, this obligation similarly extends to those who decline to be vaccinated based on sincerely held religious beliefs, and is consistent with the requirements of New York State law.

If Someone in the Office Tests Positive for COVID-19

Once employees have actually returned to the office, current guidance from the CDC on Quarantine and Isolation provides that someone who thinks or knows they have COVID-19 (that is not a severe case and who is not immunocompromised) should self-quarantine and get tested.  That individual can be around others and return to work after:

  • 10 days from when symptoms first appeared and
  • 24 hours with no fever without the use of fever-reducing medications and
  • Improvement of other symptoms of COVID-19 (i.e.: loss of taste and smell, which can linger for weeks).

If the individual who tested positive had no symptoms, then the individual can be around others and return to work after 10 days from the initial positive COVID-19 test, unless symptoms later develop.  Someone who was severely ill with COVID-19 or is immunocompromised may need up to 20 days to recover from the date symptoms first appeared and, if immunocompromised, the individual should consult with their healthcare provider about possible additional testing or precautions before returning to work.

New York State currently defers to the CDC guidance with regard to these quarantine and isolation periods.  Employers are reminded that, while the program offering federal tax credits for providing paid leave when an employee is unable to work due to quarantine for COVID-19 has now expired, New York State has a separate COVID-19 paid leave law.  As we discussed in a series of COVID-19 leave articles on our blog earlier this year, the state law may require paying employees full salary for all or a portion (depending on the size of the employer) of their quarantine or isolation period if an employee is unable to work remotely, and this payment obligation is separate from other paid leave entitlements the employee may have under the paid sick leave law or the employer’s policies.

Keep Checking for New Legal Standards

These remain challenging times in many respects, and the legal landscape continues to be turbulent ground for employers as governing bodies at the federal, state and local levels each endeavor to balance competing considerations.  Reopening plans developed over the summer or earlier are likely no longer compliant with current requirements, and employers should look to the dedicated COVID-19 government websites and get legal advice to ensure they are meeting their obligations.

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11

October, 2021

NYC Employers: Have You Bifurcated Your Background Check Process?

By Tracey I. Levy and Kaitlin Flores

New York City employers who conduct criminal history checks of employees need to take note of recent amendments to the NYC Fair Chance Act that took effect in late July 2021.  Most significantly, except in limited circumstances where employers are legally required to conduct criminal background checks as a condition of employment, the Fair Chance Act amendments now require employers to adopt a bifurcated process based on the type of prior history being reviewed.  Education and employment history, and any other legally-permissible checks that do not reference criminal history, must be completed before extending to the candidate a conditional offer of employment.  Once cleared, the employer can then offer the candidate employment that is conditioned on a criminal history check.  Only after extending a conditional offer can the employer actually conduct a review of a candidate’s criminal history.

This bifurcated process is dictated by a provision in the amendments to the Fair Chance Act that states a conditional offer of employment may only be rescinded if 1) the results of a criminal background in accordance with the FCA as amended warrant rescission, 2) the results of a legally-permissible medical examination warrant rescission, or 3) the employer discovers other information that it could not have reasonably known previously and that information would have independently warranted rescission.  Education and employment history that could have been ascertained at an earlier point may not be used as a reason for rescinding a conditional offer of employment, and hence employers are left with this new bifurcated process.

Another significant change to the FCA was the extension of the FCA’s protections beyond criminal history of job applicants to also include 1) an applicant’s open, pending criminal arrests and charges and 2) the criminal record of current employees.  In both contexts, employers must now analyze the relevance, severity, and implications of the criminal history utilizing a series of “Fair Chance Act Factors” that are similar to the factors required to be analyzed in regard to the conviction history of job applicants under N.Y. Correction Law Article 23-A.  As a reminder, even before the recent amendments, the FCA has required employers to explain to the applicant in writing the information obtained in the background check process and the Fair Chance Act Factors on which the employer relied.  Applicants must then be provided an opportunity to respond before any employment decision can be made, and the FCA amendments extend to five days (formerly three days) the applicant’s window to respond.

Another FCA amendment was a clarification that certain types of criminal history should be considered “non-convictions” and therefore cannot be considered at all as part of the background check process.  The category of non-convictions includes convictions that result solely in a “violation,” records that are sealed, juvenile convictions, and dismissed, vacated, or acquitted charges.

Legal Enforcement Guidance on the Fair Chance Act, issued by the NYC Commission on Human Rights, further advises employers that they cannot include even neutral statements like “background checks required” or “applicants’ criminal history will be considered consistent with the requirements of the New York City Fair Chance Act” in their job ads or at any point before making a conditional offer.  Rather, the guidance states that an employer can advise an applicant that its process will include a criminal background check only in response to a specific inquiry by the applicant.  To comply with disclosure obligations under the federal Fair Credit Reporting Act, the NYC guidance encourages employers to use terms like “consumer report” or “investigative consumer report” rather than “background check” in its authorization notice.

The amendments to the FCA and the enforcement guidance from the New York City Commission on Human Rights are very much intended to discourage employers from using criminal history as a basis for employment decisions.  Most background check vendors have shifted their processes to comply with the new bifurcated process mandated by the FCA.  Those New York City employers that continue to conduct background checks that include consideration of criminal history should consult with legal counsel whether they fall within an exception to the FCA amendments and, to the extent they do not, confirm that they are adhering to the new New York City requirements.

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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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8

July, 2021

Clock Is Now Ticking for NYS Employers to Adopt Workplace Safety Plans Under HERO Act

By Tracey I. Levy

The New York State Department of Labor yesterday posted on its website an Airborne Infectious Disease Exposure Prevention Standard, a model Airborne Infectious Disease Exposure Prevention Plan, and industry specific templates (which can be accessed on a dedicated webpage) to implement the HERO Act.  The industry-specific templates cover agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail.

As we discussed in our prior blog article, the HERO Act requires all New York State employers to adopt airborne infectious disease exposure prevention plans that meet or exceed the state’s published standards.  Employers now have 29 more days in which to draft their own safety plans, and an additional 30 days to distribute their plans to current employees.  All plans thus need to be drafted and distributed by Labor Day 2021.

The model plan includes minimum controls with which we have all become very familiar over the past 15 months, including stay at home policies for those exhibiting symptoms, health screenings, face coverings, physical distancing, hand hygiene, cleaning and disinfection, “respiratory etiquette,” and special accommodations for those at greater risk.  Additional controls may be required in situations that present higher risk of exposure.  Significantly, while the planning must be done and documented now, these controls need only be put into place in the event that the state Commissioner of Health designates an airborne infectious disease as highly contagious presenting a serious risk of harm to the public health. Presently there is no such designation in effect in New York (even for COVID-19).

The model plan further includes provisions on:

  • training and information dissemination during a designated outbreak;
  • plan evaluations;
  • acknowledgment that all controls to be implemented have been obtained, properly stored and maintained; and
  • a complaint reporting process and reassurances against retaliation for reporting concerns.

Employers that choose to adopt the state’s model plan should note that the plan requires customized information to be specified in certain sections – you cannot simply download the document and distribute it as is.  Alternatively, employers may want to use the return-to-work plans that they previously developed under the New York Forward program following the COVID-19 shutdown as a starting point in developing their HERO Act plans, but this can only be a starting point and employers should confirm that their plans cover all the elements incorporated in the model HERO Act plan.

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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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