Levy Employment Law Blog

28

November, 2021

NYC’s Condemnation of Employment At-Will Chases a Bogeyman to Correct for Bad Management

By Tracey I. Levy

Crain’s New York Business reported in its November 22, 2021 issue that six of the seven New York City Council speaker candidates support modifying or ending the concept of employment at-will, in favor of a “just cause” standard.   If the just cause requirement that New York City put into effect this past year for fast food franchises is to be the model for all employers going forward, New York City employers have much to worry about.  Such a plan would essentially take a hatchet to solve a problem that is fundamentally one of bad management, with little regard to the myriad repercussions for employers.

The concerns that the City Council speaker candidates reportedly cited as grounds for scaling back or eliminating employment at-will were threefold: the unfairness of being terminated without just cause, the perception that employment at-will “primarily” impacts communities of color, and the difficulties that a sudden job loss present for employees with families.  In regard to the third concern, Councilman Francisco Moya was quoted as saying that “’[i]n certain jobs, workers can be fired for taking the day off or for bringing their kid to the doctor.’”  The council speaker candidates seem to lack a full appreciation of the protections already afforded to employees under current federal, state and local laws that collectively impose myriad incursions on the concept of employment at-will.

Communities of Color and Certain Employee Actions Are Already Legally Protected

First and foremost, to the concern of the impact on communities of color, our current employment law protections expressly prohibit any employer from taking adverse action against an employee based on more than 20 protected characteristics, including race, color, national origin or ethnicity.  Woe to the employer that terminates an employee of color without any legitimate business reason.  An employer that falls back on the shield of employment at-will in that situation leaves itself with little more than a pie plate by way of defense to a discrimination claim, as the absence of any legitimate business reason gives rise to an inference of discrimination that can be impossible to disprove.

It often is noted that many European countries have just cause requirements for termination of employment.  That is true, but European countries also operate under a rather different legal system than what was developed in the United States, with a far greater emphasis on codes and adherence to procedural protections and a considerably lesser role for protection of individual rights through court action.  Some may think that system is better.  Certainly, it is different.  But both are designed to protect against certain employer overreaching, and it would be a mistake to port over a small slice of a foreign country’s legal system without looking at the entirety of its legal structure and how that contrasts with current systems already in place here.

Councilman Moya’s comments about workers being fired for taking the day off or bringing their child to the doctor also appear to be based on a misunderstanding of current legal protections.  New York State and New York City law both provide employees with paid sick and safe leave time, and employees can use those days for a broad range of reasons, including if they personally feel unwell, or need to care for a sick child or take their child to a well-visit with the child’s doctor.  An employer that fires an employee in contravention of those state and city laws faces the full weight of the enforcement provisions, including civil penalties, orders of reinstatement, and payment of back wages and benefits.

Unfairness or Surprise Does Not Equate to Lack of a Legitimate Reason

As to the concerns of unfairness and sudden job loss, in my experience most employee terminations are not for lack of cause, but they may well be perceived as sudden or unexpected by an employee due to ineffective communications and sub-optimal performance management practices.  Giving pointed performance feedback is hard.  I have been coaching managers and HR professionals through it for decades now, and it never gets easier.  As a manager myself, one of the least favorite aspects of my job is when I need to tell an employee that the employee’s work, attitude, behavior (or all three) is not meeting my expectations.  Countless times I have worked with organizations that have “packaged someone out,” offering some amount of severance to an underperforming employee to hopefully part ways quietly because the organization can no longer tolerate making do with the employee’s subpar delivery, but the organization also recognizes that it did not effectively communicate its dissatisfactions to the employee over the preceding weeks, months, or years.

It’s not just that managers dislike having difficult conversations.  Often organizations need to balance competing demands, such as maximizing productivity, delivering on a key product or deadline, or accepting the realities of a tight job market or hiring freeze.  In each of these situations, a manager may elect to keep the employees the manager has, no matter how marginal the performance, because the time and expense of managing the employee out may be too great.  Just in this past year, I can think of repeated instances in which an organization explained to me that an employee had been told of the employee’s errors on multiple occasions, but the manager did not expressly inform the employee that such errors were viewed as performance concerns because the employee had a pivotal role in one or more key projects and the organization did not want to deliver pointed, critical feedback that might leave the employee feeling demotivated.  The organization made the choice to continue with the employee they had, until they finally reached their wits’ end or the project was at a less critical stage, such that they concluded it was now wiser to make a staffing change.  Those organizations each had just, and ample, cause for the termination decisions they made, but to the impacted employees, the decisions may have felt unfair and sudden.  Chasing the bogeyman of employment at-will therefore will not solve the problem, nor is it clear why the City Council needs to be legislating in this area.

The costs of recruiting, hiring and training new employees further disincentivize organizations from terminating employees willy-nilly, without cause.  Nearly every client and business owner I speak with, in a broad range of industries, are finding it difficult to hire qualified, motivated employees at present.  They certainly are not firing their current people if it is remotely possible for them to avoid doing so.  Social media and websites like Glassdoor further serve as a check on employers engaging in baseless termination decisions.  Disgruntled employees make their views known on those websites, and bad reviews can hamper an organization’s recruiting efforts.

I am not so naïve as to believe there are no employers out there that engage in bad employment practices.  However, returning to my initial hatchet analogy, the remedy being proposed by so many of the candidates for council speaker overlooks a range of legal and practical checks on employer behavior that collectively offer substantial protections to many employees.  The problem with a just cause requirement is not so much in the need for employers to have reason to terminate an employee; currently, in most situations, those reasons already exist.  Rather, the problem, as discussed in my prior blog article on the fast food franchise law, is that the definition of “just cause” under such a law and the processes that accompany the enforcement of such a requirement hamstring employers in myriad other ways.  Any legislative response must consider those implications.  Notably, Montana, which was the first and has long been the only state to require “good cause” for termination, substantially scaled back its employee protections earlier this year, following its experience of years of litigation over the specifics of employer termination decisions.

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19

November, 2021

NYCCHR/EEOC Diverge on Accommodations to Vaccine Mandates

By Tracey I. Levy and Alex Lapes

Recent updates to technical assistance from the Equal Employment Opportunity Commission (EEOC) and guidance from the New York City Commission on Human Rights (Commission) reflect the continuously evolving expectations with regard to vaccine mandates and adherence to accommodation requirements under equal employment opportunity laws, and also highlight some differences in approach that New York City employers cannot overlook.  The challenge for employers is that, while they are permitted (and in some cases required) to mandate that all employees who physically enter the workplace be vaccinated against COVID-19, when enforcing that mandate, they need to provide reasonable accommodations to employees who object to a vaccination requirement due to:

  • disability;
  • pregnancy (either in its own right under New York law or for pregnancy-related conditions that constitute a disability under federal law); or
  • a sincerely held religious belief, practice, or observance.

The EEOC has updated its technical assistance Q&A’s on COVID-19 and EEO laws three separate times in the past month (October 13, 25, and 28, 2021), particularly Section K and new Section L, to address various issues that may arise when employers navigate vaccine-related accommodation requests.  Piggybacking on the EEOC’s guidance, on November 1, 2021, the Commission updated its COVID-19 resources to adopt some, but not all, of the EEOC’s stance on the subject of accommodations.

Divergence on What Triggers Consideration of a Reasonable Accommodation

EEOC guidance clarifies that an employee or a third party (i.e. employee’s healthcare provider) must notify the employer of the need for a reasonable accommodation because of a qualifying reason.  Under federal law, accommodation requests based on medical conditions (or underlying conditions) or religious beliefs or practices do not require the employer to initiate that process and, absent notice from the employee about such a request, employers have no obligation to inquire or take action, even if an employer knows an employee is at higher risk for severe illness if the employee contracts COVID-19.

Conversely, the Commission has stated that, under the New York City Human Rights Law (NYCHRL), employers are required to initiate the conversation and to engage in a “cooperative dialogue” with an employee when the employer knows or has reason to know that the employee may require a reasonable accommodation.  For example, a New York City employer who knows that an employee has a medical condition that might place the employee at “higher risk for severe illness” if the employee contracts COVID-19 is required under city law to engage with the employee in a cooperative dialogue about a potential accommodation, even without the employee requesting one.  In order to satisfy this obligation, the Commission recommends New York City employers remind all staff of the employer’s policies regarding reasonable accommodations and the process for requesting those accommodations.

Disability Considerations

The EEOC and the Commission are consistent on their guidance that simply asking for information to confirm whether an employee is vaccinated against COVID-19 is permissible and is not a disability-related inquiry.  However, employers who require employees to provide medical documentation on vaccine status must ensure that, as with all medical information, it is kept confidential and separate from other personnel files.

Pregnancy Considerations

Under federal law, unless an employee has a pregnancy-related condition that qualifies as a disability, the EEOC has explained that employers are encouraged but not required to explore reasonable accommodations for a pregnant employee.  The EEOC further noted that employers must ensure pregnant employees receive the same job modifications (including changes to work schedules, telework, or changes to work schedules or assignments) in response to their pregnancy-related accommodation requests as would other employees who are similar in their ability or inability to work.

The Commission goes one step beyond the EEOC, and affirmatively requires employers to engage in a cooperative dialogue and explore possible accommodations for a pregnant employee who requests an exemption from a vaccination mandate.

Religious Objection to Vaccination

Most of the new EEOC guidance pertains to religious objections to an employer’s vaccine mandate, and in that context the NYC Commission has explicitly adopted the following provisions from the EEOC’s guidance:

  • Employees and applicants must inform their employer if they seek exemption from a vaccine mandate based on a sincerely held religious belief, practice, or observance. While there are no “magic words”, the employee or applicant has an obligation to notify the employer if there is a conflict between their religious beliefs and the employer’s vaccine mandate.
  • Employers are permitted to ask the employee to explain how the employee’s religious beliefs conflict with the employer’s vaccine mandate. Employers have no obligation to accommodate employees who seek exceptions to a COVID-19 vaccination requirement based on social, political, or economic views, or personal preferences.  Therefore, the EEOC has stated, and the Commission has agreed, employers are permitted to make a limited factual inquiry and seek additional information from the employee, if they have an objective basis to question the sincerity of a particular belief.  Factors to be considered in evaluating the credibility of an employee’s sincerity as to a religious belief include prior inconsistent conduct (with the caveat that employees need not be scrupulous in their religious observance), whether the accommodation benefit would likely be sought for nonreligious reasons, whether the timing of the request makes it suspect, and whether the employer has other reason to believe the accommodation is not for religious reasons.
  • Significantly, though, when weighing these factors, employers also need to be mindful that the definition of religion is broad and protects both the major organized religions and “religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.”   The EEOC’s own religious accommodation request form, which it offers as an example of an appropriate scope of inquiry, is very limited in its probing of an individual’s religious beliefs.
  • Employers do not need to grant the requests of all employees who seek an accommodation based on religion. Employers are permitted to take into account the cumulative cost or burden of granting accommodations to other employees and should evaluate religious objections on a case-by-case basis depending on the specific factual circumstances of the employer’s business. As with all accommodations, if more than one accommodation would effectively eliminate the religious conflict, then the employer may choose which accommodation to offer.  An employer may also discontinue a previously granted accommodation based on changed circumstances, although the EEOC suggests as a best practice that employers discuss and evaluate alternative accommodations with the employee before discontinuing a religious accommodation.

The Commission has further expressed its agreement with the EEOC’s guidance that employers need not accommodate an employee’s belief if the employer demonstrates “undue hardship” on its operations.  In practice, however, the EEOC and the Commission define undue hardship in this context quite differently.  A minimal cost to accommodate an employee’s religious belief is an undue hardship under Title VII and employers may consider direct monetary costs as well as the burden on the employer to prevent the risk of the spread of COVID-19 to other employees or the public.  The EEOC’s guidance notes an employer may consider whether the employee works alone or with others, their contact with the public, and especially their contact with vulnerable individuals.

In contrast, the NYCHRL defines undue hardship as “an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or violation of a bona fide seniority system).” New York City employers should consider such factors as the identifiable cost of the accommodation, how many individuals will need the accommodation based on religion, and for employers with multiple facilities, the degree to which geographic separateness or administrative or fiscal relationship will make the accommodation more or less difficult.  Notably, under the NYCHRL, a religious accommodation will only be deemed an undue hardship “if it will result in the inability of an employee who is seeking a religious accommodation to perform the essential functions of the position.”

Takeaways

Employers in New York need to be ever mindful that compliance with federal requirements and guidance from the EEOC, OSHA, the CDC and other federal government agencies merely sets the floor in terms of legal standards.  New York State and New York City can and have been imposing additional obligations on employers and granting greater protections for employees in the context of addressing COVID-19.  New York City employers who mandate vaccinations need to ensure their policies and procedures allow employees to request an exemption from that requirement as a reasonable accommodation and entertain that request in a manner that does not discriminate or treat differently any employees based on protected characteristics.

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5

November, 2021

Window is Short to Meet Latest Vaccination Mandate; NY Employers Need to Consider State Law on Paying for Testing

By Tracey I. Levy

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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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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