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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3

June, 2021

The Courts Have Awoken: Takeaways Spring 2021

After a dearth of notable caselaw over the course of the pandemic, this past quarter brought five significant decisions across New York, New Jersey and Connecticut — addressing the parameters of employer obligations to medical marijuana users, the scope of New Jersey’s Pregnant Workers Fairness Act, business executives’ liability for harassing conduct by a supervisor, and New Jersey’s ban on arbitration of discrimination claims. Our Spring 2021 issue of Takeaways summarizes all those decisions, as well as recent employment law developments in New York and New Jersey resulting from the legalization of recreational marijuana usage, further updates on the ever-evolving maze of requirements related to COVID-19, expanded protections for discrimination related to employees’ hairstyles and head coverings, and a substantial increase in the minimum wage for federal contractors, taking effect in very short order.

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11

April, 2021

Reconciling 2021’s Expanded NYS and FFCRA COVID-Related Leave Obligations

By Tracey I. Levy

The continuation of the payroll tax credits under the Families First Coronavirus Response Act (“FFCRA”) through September 30, 2021, with an increased range of qualifying purposes, together with new guidance from the New York State Department of Labor on New York’s own COVID-19 leave requirements, can collectively leave employers in a quandary as to their legal options and obligations.  The following table overlays the requirements and eligibility criteria under the state and federal laws.  As referenced in the table:

NYS COVID-19 Leave – is leave for a period of up to two weeks based on a government-issued quarantine or isolation order. New York State mandates employers provide up to three periods of covered leave per employee, but the second and third periods 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 positive for COVID-19 (see our  NYS COVID leave blog posting).  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.

NYS Paid Family Leave benefit – provides payment to care for a child for the duration of a quarantine or isolation period, and for up to 12 weeks of leave per year at the statutory amount ($840.70/week) through the government-mandated NYS PFL program 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.

FFCRA tax credit for sick leave – provides employers who offer paid COVID-19 leave with a tax credit for a total of two weeks, up to a cap of $511 per day for sick leave due to an employee’s own medical condition and a cap of $200 per day for sick leave due to care of someone else.  Employees who previously received FFCRA COVID-19 leave in the first year of the pandemic are eligible for up to another two weeks of leave as of April 1, 2021.  Note that FFCRA paid leave offered in 2021 is on a voluntary basis and is not mandated, but should be provided consistently to all eligible employees.

FFCRA tax credit for care of a family member – provides employers who offer paid COVID-19 family care leave with a tax credit up to a cap of $200 per day for a total of 12 weeks under the Family Medical Leave Act (FMLA); employees who previously received FFCRA COVID-19 family leave in the first year of the pandemic are eligible for up to another twelve weeks of leave beginning April 1, 2021.  Note that FFCRA paid leave offered in 2021 is on a voluntary basis and is not mandated, but should be provided consistently to all eligible employees.

April 2021 COVID Leave Table

 

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17

March, 2021

ARPA Offers Financial Relief for Employers Facing NYS’s Latest COVID-19 Vaccine/Sick Leave Mandates

By Tracey I. Levy

New York State employers face yet another payroll cost challenge as the state has now mandated, as of March 12, 2021, that employees be granted up to four hours of paid leave (separate from all existing paid time off benefits) for purposes of receiving the COVID-19 vaccine.  This is in addition to the state’s mandates for employers to provide up to three two-week intervals of COVID-19 sick leave, at least a portion of which must be paid by all but the smallest employers, as we have discussed in prior blog articles.

Fortunately, among the financial benefits included in the new American Rescue Plan Act (“ARPA”) are several provisions that are particularly helpful to New York State employers struggling to comply with the state’s unfunded COVID-19-related paid leave mandates.  While not mandatory, ARPA authorizes employers to claim a dollar-for-dollar tax credit for qualifying wages paid to employees for leave taken under the Families First Coronavirus Response Act (“FFCRA”).  ARPA expands the list of FFCRA-qualifying leaves, and it extends the FFCRA leave eligibility period.

Expansion of FFCRA Leave

The FFCRA was originally designed to provide employees with up to 10 days of paid sick leave for six qualifying reasons: (i) inability to work due to a government-issued quarantine or isolation order related to COVID-19; (ii) inability to work due to quarantine or isolation on advice of a health care provider related to COVID-19; (iii) if the employee was experiencing COVID-19 symptoms and seeking a medical diagnosis; (iv) if an employee was caring for someone subject to quarantine for COVID-19; (v) to care for a child whose school or childcare center was closed for COVID-related reasons; and (vi) if an employee was experiencing substantially similar conditions as specified by the Secretary of Health and Human Services.

ARPA expands that list to permit FFCRA paid sick leave for three additional reasons:

  • to take time off to get a vaccine;
  • to recover from illness or injury related to the vaccine; or
  • while awaiting the results of a COVID-19 test or diagnosis because the employer requested that the employee be tested or because the employee was exposed to someone who had tested positive for COVID-19.

The FFCRA originally offered an additional benefit of 12 weeks of Emergency FMLA leave (under the Emergency Family Medical Leave Expansion Act), which comprised two weeks of unpaid, and 10 weeks of paid, leave at two-thirds of the employee’s salary, up to $200 per day.  EFMLA leave was available, however, solely for reason “v” as listed above – to care for a child whose school or childcare center was closed for COVID-related reasons.  ARPA now expands eligibility for EFMLA leave to all nine of the qualifying reasons specified above.   ARPA also increases the paid component so that an employee can receive partial salary for all 12 weeks of the leave period.

Extension of FFCRA Leave

In addition to expanding the qualifying reasons for FFCRA leave, ARPA extends the period in which an employee can qualify for the leave through September 30, 2021.  ARPA also resets the clock on the 10-day cap on eligible COVID-related sick leave as of April 1, 2021, so that employees who have already taken FFCRA qualifying paid sick leave since the start of the pandemic can take up to 10 additional days of leave for a qualifying reason subsequent to April 1, 2021.Facebooktwitterredditpinterestlinkedinmail

26

January, 2021

NYS Employers Required to Provide Multiple Rounds of COVID-19 Paid Sick Leave

By Tracey I. Levy

Employers in New York State may have to pay employees at full salary for more than six weeks of COVID-19 leave (in addition to all other paid leave benefits offered by the employer or mandated by law) under new guidance issued by the New York State Department of Labor (“NYS DOL”) on January 20, 2021.  This is precisely the position that we flagged as a troubling open issue in our prior blog posting, Extension of FFCRA Credit Helps NYS Employers.

The NYS DOL guidance provides that if an employee who returns to work following a period of quarantine or isolation subsequently tests positive for COVID-19, the employee must submit proof of the positive test result and is not allowed to come to work.  Rather, the employee is deemed to be subject to a new mandatory order of isolation and is entitled to New York State’s paid COVID-19 leave law, irrespective of whether the employee already received a full two weeks of paid COVID-19 leave for the prior quarantine.  Similarly, if an employee has been out on COVID-19 leave due to a quarantine or isolation order and continues to test positive for COVID-19 after the end of the quarantine or isolation period, the employee cannot come to work.  Instead, upon proof of the positive test result, the employee is entitled to an additional period of COVID-19 paid leave.

In addition, if an employer mandates that an employee who is not otherwise subject to a quarantine or isolation order remain out of work due to actual or potential exposure to COVID-19 (from any source), then the employer has to continue to pay the employee’s regular salary for so long as the employer requires the employee to stay away from work or until such time as the employee actually becomes subject to a mandatory or precautionary order of quarantine or isolation.  If and when the employee is subject to a quarantine/isolation order, the clock will then begin running on the mandatory New York COVID-19 sick leave period, but the period of paid leave preceding issuance of the order will not count as part of the two-week COVID-19-leave period.

The one concession to employers offered by the new guidance is that they need not endure more than three rounds of paying COVID-19 sick leave for a quarantined employee.  Also, while the first COVID-19 paid sick leave period may arise based on the employee being subject to a COVID-19-related quarantine or isolation order for any reason, the second and third rounds must be predicated on the employee personally testing positive for COVID-19.

Employers have limited options under this new guidance.  Some attorneys have suggested that the guidance (which does not have the same force as a regulation) is subject to challenge on the grounds that it exceeds the scope of the law.  Short of commencing litigation, employers can bear the cost of the more expansively-interpreted law and look to the FFCRA tax credit to offset the costs of each employee’s first round of New York State COVID-19 paid leave.  While the tax credit is set to expire March 31, 2021, it may be extended as part of the latest federal COVID-19 relief legislation.  Notably, New York State’s COVID-19 leave is not available if an employee is able to work remotely, so employers should maximize that opportunity whenever an employee is quarantined but either has not tested positive or is experiencing few symptoms and feels well enough to work.

One other option for employers that are really struggling financially at this time may be to suspend or temporarily reduce vacation or other paid time off benefits for the duration of the pandemic so as to offset the employers’ salary continuation obligations under the COVID-19 leave law.  In most non-union situations, New York State employers are able to modify their paid time off policies at any time, provided employees continue to receive the leave time to which they are entitled by law.  Vacation and extended PTO days fall outside those statutory requirements, and employers generally have flexibility to modify those policies.  It is advisable, though, to consider the  resulting impact to employee morale, and to consult legal counsel before making any such modifications in this context.Facebooktwitterredditpinterestlinkedinmail

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