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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23

June, 2021

NYS Lifts COVID Restrictions But OSHA Standards Must Still Be Met

By Alexandra Lapes and Tracey I. Levy

As of June 15, 2021 New York State has lifted its general health guidance and New York Forward industry specific guidelines – including social gathering limits, capacity restrictions, social distancing, cleaning and disinfection, screening, and contact information for tracing.  Those guidelines are now optional for most establishments including retail, food services, offices, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and personal care services.  Businesses are now free to choose whether they want to lift all or some restrictions, continue to adhere to the State’s archived guidance, or implement other health precautions for their employees and visitors, clients and customers.  The only remaining requirement under New York State law is that unvaccinated individuals wear masks and employers have masks available for those individuals.

OSHA Protections Remain in Effect

Significantly, the lifting of New York State restrictions does not relieve employers of their obligations to meet safety and health standards under the Occupational Safety and Health Act (“OSHA”), which have their own restrictions.  Where all employees are fully vaccinated, OSHA’s most recently issued guidance relieves most employers of taking specific steps to protect their workers from COVID-19 exposure in the workplace.  But many workplaces have not achieved full vaccination status, particularly when considering the presence of clients, customers or other visitors to their work premises, and employers therefore need to ensure they meet the following standards:

  • Perform routine cleaning and disinfection – if someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations and mandatory OSHA standards for hazard communication and PPE appropriate for exposure to cleaning chemicals;
  • Record and report COVID-19 infections and deaths – employers are responsible for recording work-related cases of COVID-19 illness on OSHA’s Form 300 logs if the following requirements are met: (1) the case is a confirmed case of COVID-19; (2) the case is work-related; and (3) the case involves one or more relevant recording criteria (e.g., medical treatment, days away from work). Employers should also report outbreaks to health departments as required and support their contact tracing efforts.
    • Note, OSHA prohibits reprisal or discrimination against an employee for speaking out about unsafe working conditions or reporting an infection or exposure to COVID-19 or a work-related illness.
  • Follow other applicable mandatory OSHA standards – all of OSHA’s standards that apply to protecting workers from infection remain in place.
  • Take a multi-layered approach to protect the unvaccinated and otherwise at-risk workers – OSHA advises employers to engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and to mitigate the spread of COVID including, but not limited to:
    • Granting paid time off for employees to get vaccinated;
    • Instructing any workers who are infected, unvaccinated workers who have had close contact with someone who test positive for COVID-19, and all workers with COVID-19 symptoms to stay home from work to prevent and reduce the transmission of COVID-19;
    • Implementing physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas;
    • Providing unvaccinated and otherwise at-risk workers with face coverings or surgical masks at no cost, unless their work task requires a respirator or other PPE;
    • Educating and training workers on the businesses’ COVID-19 policies and procedures using accessible formats and in language they understand;
    • Suggesting unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces such as retail establishments, if there are unvaccinated or at-risk workers in the workplace likely to interact with these patrons;
    • Maintaining ventilation systems;
    • Implementing protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards; and
    • Taking additional steps to mitigate the spread of COVID-19 for unvaccinated and otherwise at-risk workers in workplaces where there is heightened risk due to the following types of factors: close contact, duration of contact, and type of contact.

Certain industries such as health care settings and public transportation, should be mindful of OSHA’s Emergency Temporary Standards, which impose additional requirements.

CDC Mask Guidance Updated

The Centers for Disease Control and Prevention (“CDC’) has advised that fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. Fully vaccinated people also can refrain from testing following a known exposure unless they are residents or employees of a correctional or detention facility or a homeless shelter.

Key Takeaways

Employers should continue to monitor CDC and OSHA guidance and anything specific to their industry, and in particular be mindful of OSHA guidance with regard to precautions for unvaccinated individuals.  Employers can adopt their own precautions that include requiring masks and six feet of social distancing for employees and patrons within their establishments, regardless of vaccination status, provided accommodations are made as required for those who cannot be continually masked for medical reasons.  As previously discussed in our recent blog article, New York State also requires businesses to develop a written business safety plan to outline how their workplaces will prevent the spread of COVID-19 and other airborne diseases going forward, and the state’s model safety plan is expected to be released in the coming weeks.

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3

June, 2021

All NY Employers Need to Develop Safety Plans Under HERO Act

By Tracey I. Levy and Alexandra Lapes

Note Important Update below.

Responding to the perceived lack of sufficient worker protections issued by OSHA and frustration with the lack of federal leadership in the prior presidential administration with regard to COVID-19 safety measures, New York State adopted the Health and Essential Rights (“HERO”) Act, which mandates a plethora of new safety standards for all employers.  The HERO Act officially takes effect June 4, 2021, but the Act itself only enumerates the 11 elements of an employer safety plan and leaves it to the New York State Department of Labor (DOL), in consultation with the Department of Health (DOH), to actually develop a model airborne infectious disease exposure prevention plan, with industry-specific standards, that will set the minimum standard for each of the 11 elements of the safety plan.  To this point the DOL/DOH have not issued the model plan or any guidance on the new safety standards.

For employers with more than 10 employees, effective November 1, 2021 the HERO Act will additionally borrow a concept that may be familiar to unionized workplaces, and permit employees to establish and administer a joint labor-management workplace safety committee.  If requested, the members of such a committee must be at least two-thirds non-supervisory employees, and the committee must be co-chaired by a representative of the employer and a non-supervisory employee.  The purpose of the safety committee is to adopt workplace safety standards, develop ways for reporting concerns, review applicable policies, participate in site visits by government health and safety officials, and review any reports filed by the employer related to health and safety.  The committee is expected to meet at least quarterly, during work hours.  Employers cannot interfere with the selection of committee members and must pay committee members for time spent attending training on safety standards.

As with so many new employment law obligations, the HERO Act prohibits employers from discriminating or retaliating against employees who seek to enforce the rights provided under the law.

What NY Employers Need to Do Now

The model safety plan will cover the following eleven topics:

1. employee health screenings,

2. face coverings,

3. personal protective equipment provided at the employer’s expense,

4. hand washing and breaks for hand washing,

5. cleaning shared equipment and other frequently touched surfaces,

6. social distancing,

7. quarantine orders,

8. engineering controls such as air flow and ventilation,

9. designated supervisor(s) to enforce safety standards,

10.compliance with notice requirements to employees and government officials, and

11.verbal review of safety standards, employer policies, and employee rights.

Most, if not all, of these are already significant considerations that employers have been working through over the course of the pandemic as they have sought to maintain/reopen their workplaces and protect the safety of their employees, clients, customers and visitors.  Any New York employer that thought that widespread vaccinations might bring an end to these measures should reassess their approach and continue with workplace operational plans that consider the latest guidance from the Centers for Disease Control and New York State on all 11 of these elements, pending more definitive guidance from DOL/DOH.  Employers should compile a written document (their own “safety plan”) that memorializes their approach with regard to each of the 11 elements.

Notably, once a model safety plan has been developed by the state, employers will either need to adopt that plan, or compare it against their own written safety plan to ensure the employer’s plan meets or exceeds all elements of the state’s model safety plan.  Employers will be required to provide a copy of their written safety plan to all employees, in English and any other primary language, at multiple times/in multiple formats:

  • as of the first opportunity, be that the effective date of the Act, upon hire, or upon the employee’s return to the workplace;
  • as a workplace posting in a visible location;
  • in the employee handbook (if the employer has one); and
  • whenever requested by the employee.

One of the most publicized and challenging aspects of the HERO Act for employers is that it imposes significant enforcement provisions:

  • hefty fines and monetary penalties, and
  • empowering individual employees to sue for non-compliance and seek both a court order forcing compliance with the law, as well as liquidated damages of up to $20,000,

unless the employer can demonstrate good faith attempts to comply.

Proposed amendments to the law, which are currently wending their way through the legislature, reportedly in accordance with an agreement on which the Governor conditioned his signature of the original version of the HERO Act, are intended to lessen the enforcement provisions, extend the deadlines for compliance, and make other clarifications.  If adopted, the amendments will remove the liquidated damages clause and the requirement that the employer demonstrate good faith attempts to comply, and instead require the employee to provide 30 days’ advance notice of a perceived violation to the employer, limiting the right to sue to circumstances in which the employer “demonstrates an unwillingness to cure a violation in bad faith.”  A prevailing employee is entitled to recover reasonable attorneys’ fees and costs under the HERO Act, and the proposed amendments would enable a court to similarly award reasonable attorneys’ fees and costs to a prevailing employer in the event a claimed violation of the Act is found to have been frivolous.  The amendments would further extend the effective date of the law out to July 5, 2021, and grant employers 30 days to draft their own safety plans, beginning as of the date the DOL/DOH issues the model safety plan, plus an additional 30 days to distribute the plan to current employees.

If adopted, the amendments would thereby effectively give employers until around Labor Day to distribute their written safety plans.  While the amendments are still pending, however, employers are left in a somewhat precarious state as the HERO Act technically requires immediate development and distribution of a written safety plan, but the required elements of that plan have not yet been defined and, even once issued, it will take employers some time to review and incorporate them.

Important Update as of 6/15/21: The New York State legislature passed the amendments to the HERO Act, thereby delaying the deadline for compliance and lessening the enforcement provisions.

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