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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6

September, 2021

NYS Mandates Vaccines for Group Healthcare Facilities, Overrides NYC Testing-Out Option

By: Alexandra Lapes and Tracey I. Levy

All individuals affiliated with general hospitals and nursing homes who engage in activities at those facilities such that if they were infected with COVID-19, they could potentially expose other personnel, patients or residents to the disease, must receive their first dose of the COVID-19 vaccine by September 27, 2021.  Affiliated individuals at various other types of group healthcare entities must meet an October 7, 2021 for their first dose of the vaccine, with very limited exemptions.

The Emergency Regulations imposing this mandate by the New York State Department of Health (“DOH”) represent one of the latest efforts to mitigate and prevent the spread of COVID-19.  The Emergency Regulations are premised on the view that within healthcare settings, unvaccinated personnel pose an unacceptably high risk of both acquiring COVID-19 and transmitting the disease to colleagues, vulnerable patients and residents, thereby exacerbating the risk of complications and staffing shortages.

Who is Covered and Who is Not

For the purposes of the Emergency Regulations, covered entities include:

  • any facility or institution included in the definition of “hospital” in section 2801 of the Public Health Law, including but not limited to general hospitals, nursing homes, and diagnostic and treatment centers;
  • any agency established pursuant to Article 36 of the Public Health Law, including but not limited to certified home health agencies, long term home health care programs, acquired immune deficiency syndrome (AIDS) home care programs, licensed home care service agencies, and limited licensed home care service agencies;
  • hospices as defined in section 4002 of the Public Health Law; and
  • adult care facility under the Department’s regulatory authority, as set forth in Article 7 of the Social Services Law.

Notably, the vaccine mandate carries broad coverage of all persons even affiliated with covered entities, and this will include many non-employees, contractors, staffing agency employees, and other individuals who work for entities that have a relationship with the covered entity.

No Testing-Out Option

Earlier last month, New York City had announced that employees at city-run healthcare facilities would be required to submit proof of vaccination or in the alternative, have the ability to “opt out”, and submit to weekly COVID-19 testing and provide proof of a negative test. In consideration of the new state mandate and Emergency Regulations, New York City’s regulations appear to be outdated, and the “opt out” testing alternative to vaccination will no longer be allowed.

Only Medical Exemptions Allowed

Unlike other regulations and guidance published at the federal level regarding the COVID-19 vaccine, the only permissible exception to the vaccine requirement is for those requiring a medical accommodation.  Entities must only consider this exemption if an individual has been certified by a licensed physician or certified nurse practitioner as having a pre-existing condition that makes immunization with COVID-19 vaccine detrimental to the health of the covered person.  Entities must document the nature and duration of the medical exemption, and if it is subsequently found that the vaccine is no longer detrimental to the person’s health, the person must then be fully vaccinated.  The Emergency Regulations permit no exemption based on religious beliefs or practice.  Ultimately, covered entities are permitted to terminate covered personnel who are not fully vaccinated and do not have a valid medical exemption, if they are unable to ensure individuals are not engaged in patient/resident care or expose other personnel.

Other Record Keeping Obligations

Covered entities must appropriately document that covered personnel are fully vaccinated against COVID-19, and document the review and determinations made on requests for medical exemptions and any reasonable accommodations. Covered entities must also have processes in place to ensure compliance with the mandate and may be asked to make those documents available to the DOH.  In addition, the DOH may request covered entities to report the number and percentage of those vaccinated against COVID-19, and those who have been granted medical exemption or reasonable accommodations.

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19

August, 2021

The Lines Have Been Redrawn; “Build Back Better” with Respectful Workplaces in New York

By Tracey I. Levy

Perhaps one of the most troubling quotes coming out of the investigation of sexual harassment allegations raised against Governor Andrew Cuomo was his statement, “In my mind, I’ve never crossed the line with anyone, but I didn’t realize the extent to which the line has been redrawn.”  He added, “There are generational and cultural shifts that I just didn’t fully appreciate.”

Indeed, there have been “generational and cultural shifts,” which were accelerated by the #MeToo movement.  The lines have been redrawn, expectations have shifted, and many organizations began revising their policies and practices years ago to hold employees to a higher standard of acceptable workplace behavior.  The law itself shifted substantially in New York State beginning in 2019, and employees (particularly managers) who do not recognize that shift now present a liability issue for their organizations.

Formerly, harassment was defined by the courts in New York, which looked to federal law to provide a wordy definition, considering, with respect to unwelcome conduct based on a protected characteristic, whether submitting to the conduct was made explicitly or implicitly a term or condition of an individual’s employment; submitting to or rejecting the conduct was used as the basis for employment decisions affecting an individual; or the conduct had the purpose or effect of “unreasonably interfering” with an individual’s work performance or creating an “intimidating, hostile or offensive” working environment, with the final element requiring consideration of whether the behavior was so severe or pervasive as to rise to the level of actionable harassment.  The standard is a mouthful to recite, hard to memorize, and overwhelming on a powerpoint slide.

In 2019, as part of Governor Cuomo’s “Women’s Justice Agenda,” the governor signed into law sweeping changes with regard to the legal standard and enforcement provisions for claims of sexual harassment.  Significantly, the law adopted a new, far simpler definition of sexual harassment (which was subsequently broadened to harassment based on other protected characteristics), as subjecting an individual “to inferior terms, conditions or privileges of employment based on” a protected characteristic.  Not only is the new standard pithy, but the law then expressly goes on to state that an individual need not show that the behavior is severe or pervasive.  Rather, it is for the employer to demonstrate that the conduct was nothing more than a “petty slight” or “trivial inconvenience.”  The legal bar for asserting unlawful harassment dropped precipitously with the new law, and the governor’s press release at the time expressly quoted him trumpeting that change: “By ending the absurd legal standard that sexual harassment in the workplace needs to be ‘severe or pervasive’ and making it easier for workplace sexual harassment claims to be brought forward, we are sending a strong message that time is up on sexual harassment in the workplace and setting the standard of equality for women.”

So how could the very individual who made these legal changes a centerpiece of his legislative agenda have fallen so far short in his own behavior?  Why, in 2021, are we still so fervently teaching the lessons of #MeToo, and how can we effectuate lasting change?  These are the questions that keep me up at night, and that I mull over at random hours.  How do we “build back better” when it comes to workplace culture?

I have no magic antidotes, but certain elements are important in progressing toward a more comfortable workplace.

Commitment from Senior Leadership

As with so many other organizational changes, there needs to be buy-in from the top.  If senior leadership shares the New York governor’s perspective, little if anything will change in their organizations.  Senior managers need to lead by example – both in articulating a commitment to providing a respectful workplace, and in conducting themselves publicly and privately in a manner that comports with that articulated standard.

Putting Sidewalks Around the Law

Preventing harassment based on sex and other protected characteristics is the legal standard.  But when that is our only goal, we end up quibbling about whether an individual’s behaviors do or do not exceed the level of a “petty slight” or what we mean by a “trivial inconvenience.”  Organizations should aim for something broader – offering a “respectful” workplace to employees and everyone else in the workplace.  We need to define what we mean by “respectful,” and that definition should both embody and exceed the legal standard.  Perhaps that means that an organization equally prohibits bullying behavior, which is not singling someone out based on a protected characteristic, but which most certainly can create an uncomfortable or intimidating work environment.  Or perhaps the organization wants to define expectations with regard to how employees communicate with one another – that such communications should be civil, and that employees should be able to articulate their perspective and have their views duly considered.  Alternatively or additionally, employers might address respectful behavior in terms of collaboration, and fostering a team environment where individuals feel supported.  The common and essential component of all these definitions is that they put “sidewalks” around the law by setting forth standards that embody and exceed the current legal standard.  When our goal is broader than the legal standard, the harassment takes care of itself so to speak, in the sense that it is definitionally inconsistent with and therefore should not be occurring in a truly “respectful” work environment.

It Takes a Village

Managers cannot single-handedly root out harassing behavior or impose a culture of respect, nor can any individual or series of complaints give rise to lasting organizational change.  Rather, an organization needs to encourage, empower, and perhaps even mandate that its employees go from bystanders to “upstanders.”  Here the New York City subway safety tagline is most apt – “if you see something, say something,” and that is the mantra to be inculcated throughout the organization.  But it is not sufficient to adopt a catchy refrain.  Employees need to be trained – on what the standards and expectations are for measuring appropriate behavior, about how they can intervene, and on where to submit concerns.  The New York State or New York City versions of the mandatory harassment prevention training programs are not sufficient for that purpose.  Rather, targeted messages, specific to those expectations, need to be communicated to employees and then reinforced at periodic intervals.

You May Need to Change

At times, a manager will seek to excuse questioned behavior with a comment along the lines that the manager is “no different than I was when I started working here,” however many years ago that may have been.  In a nutshell, the manager’s comment precisely illustrates the problem.  The lines have been redrawn.  We are holding employees, and everyone in the workplace, to a higher standard than was the case in 2017.  But that higher standard may not be the optimal objective from a cultural perspective.  Creating a comfortable, respectful workplace requires organizations to do more.  In doing so, an organization may also reap manifold benefits in employee morale, retention, and productivity, as well as reputation, that “build back better” and even help the organization’s bottom line.

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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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