Levy Employment Law Blog

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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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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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29

April, 2021

Cannabis Protections – NY and NJ Take Different Approaches on Employer Obligations

By Alexandra Lapes, Esq.

On March 31, 2021, New York State joined the rising number of states to fully legalize cannabis for adult users by passing the Marijuana Regulation and Taxation Act (“MRTA”).  Enacted just a month after New Jersey’s cannabis law passed, see our previous blog article here, the MRTA clarifies and establishes workplace standards related to cannabis including the rights and protections of both employers and employees, effective immediately.  The MRTA also amends New York Labor Law to protect an employee from discrimination based on the employee’s legal use of cannabis in accordance with state law, including an employee’s use of cannabis prior to the beginning or after the employee’s work hours, off the employer’s premises, and without the use of the employer’s equipment or property.

Notably, the MRTA explicitly carves out protections for medical cannabis users and expands the state’s medical cannabis program to allow clinicians to recommend medical cannabis for any condition (previously only a limited number of diseases qualified patients for medical cannabis use).  As such, under New York’s Compassionate Care Act, employees who are “Certified Patients,” and prescribed medical cannabis are deemed to have a disability under the New York State Human Rights Law and are entitled to reasonable accommodations based on their disability. In addition, the MRTA requires medical cannabis users be provided the same rights, procedures, and protections available and applicable to injured workers under the worker’s compensation law, when such injured workers are prescribed medications that may prohibit, restrict, or require the modification of the performance of their job duties.

Nevertheless, employers are not required to allow an employee to use cannabis while at work for any reason including if prescribed by a doctor, and employers may take action against any employee related to the use of cannabis if:

  1. the employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;
  2. the employee is impaired by the use of cannabis while working; or
  3. the employer’s actions would cause the employer to be in violation of federal law, or would results in the loss of a federal contract or federal funding.

“Impaired by the use of cannabis” means the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s job performance or such specific articulable symptoms interfere with an employer’s obligation to provide a healthy and safe workplace, as required by state and federal law.  The MRTA does not define “specific articulable symptoms”.

Consensus on Prohibiting Work While Impaired; Divergence in the Details of Drug Testing

The New York and New Jersey cannabis laws both permit employers to enact and enforce policies pertaining to cannabis in the workplace, and employers may prohibit the use, possession, or being under the influence of cannabis while in the workplace or during work hours.  Employees’ off-duty use of cannabis in accordance with each state law creates a protected class for employees against adverse action based on lawful consumption.  Furthermore, employers in both states are permitted to take adverse action against an employee who is determined to be impaired while engaged in work responsibilities or during work hours. However, employers may not make any hiring decisions based solely upon a positive drug test result.

Under New Jersey’s cannabis law, employers who conduct drug tests per the law’s permissible reasons may then use the results of that drug test when determining the appropriate employment action concerning the employee, provided the drug test satisfies two prescribed requirements: it is conducted with scientifically reliable objective testing methods and procedures (i.e. testing blood, urine, or saliva); and a physical evaluation is conducted by a “Workplace Impairment Recognition Expert” (WIRE).

New York’s cannabis law has no similar provision or requirements and is ostensibly silent on drug testing requirements or procedures in the workplace.  While New York City employers have been explicitly banned from conducting pre-employment drug tests for cannabis since May 2020, it is unclear for employers in other parts of New York State, under what circumstances an employer may use pre-employment drug tests (unless mandated by federal law), since a positive test result cannot serve as the basis for any hiring decision.

Key Takeaways

Employers should review and update their policies and procedures to ensure compliance with their respective state cannabis law and stay alert for further guidance on interpreting and applying these laws in the workplace.  Multi-state employers should be mindful of the key jurisdictional differences that impose greater requirements on New Jersey employers when conducting drug tests for cannabis.

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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

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