Levy Employment Law Blog


January, 2022

NY Employers Must Recognize Employee Requests for Workplace Safety Committees

By Nida Jamshed and Tracey I. Levy

New York employers focusing on COVID-19 compliance may overlook additional workplace health and safety obligations imposed by the HERO Act, for which the New York State Department of Labor issued proposed regulations on December 22, 2021.

What is the NY HERO Act?

In May 2021, New York passed the HERO Act, Part 1 of which requires all private employers to adopt a health and safety plan for the protection of employees when there is an airborne infectious disease.  As we have discussed in prior blog articles, those plans should have been adopted by September 5, 2021, and have been activated since Labor Day to prevent the spread of COVID-19.

Part 2 of the NY HERO Act requires employers with 10 or more employees in New York State to allow workplace safety committees by employees – even in non-unionized workplaces.  The HERO Act does not require any employer to develop a workplace safety committee; rather the law provides that if employees choose to create one, the employer may not disallow it. The Department of Labor (DOL) issued a proposed rule on December 22, 2021, which will not take effect until after formal hearings, that lays out the scope of employer involvement in such a committee and addresses different categories of the law: establishment of committees, composition, rules, and employer obligations.


To establish a workplace safety committee, two or more non-supervisory employees who work at a single worksite will need to submit a written request to the employer.  This can be in the form of one written request signed by two non-supervisory employees, or two separate requests. Employers must respond to the request with “reasonable promptness,” but that term is not defined in the proposed regulations. If an employer already has a workplace safety committee that is otherwise consistent with the labor laws, then it just needs to inform the employees of the existing committee. If there is no committee already in place, the employer has five days to provide notice to employees of the recognition of the committee.


The NY HERO Act also sets rules regarding the composition of the committees to ensure that the voice of the employees is adequately heard. The ratio is set with at least two non-supervisory employees to one employer representative (a 2:1 ratio with majority to the employees).  The employer can appoint its own representatives in the 2:1 ratio, but non-supervisory employees should not be selected by the employer. For employees who are unionized, the union representative will select the employee representative for the committee. For non-unionized employees, the representative can be selected by any means as long as the employer does not interfere.

If the worksite has less than 10 employees, then the committee should have three members, with two non-supervisory employees and one employer representative. If there are less than 36 employees at the worksite, then the number of committee members is a maximum of one-third of the employees. If there are more than 36 employees, then the maximum amount of committee members is twelve. Lastly, committees must be co-chaired by a non-supervisory employee and an employer representative.


The committee has the authority to adopt its own rules, procedures, and bylaws consistent with the HERO Act. If none are adopted, then it can only act by a majority vote of its members. The committees need to ensure that meetings do not unreasonably conflict with the employers’ operations and that the committee responsibilities do not interfere with work responsibilities. The co-chairs must also notify the employer of any changes to the membership.

Employer Obligations:

After a workplace safety committee is established, employers have a few additional obligations.

  • A duty to respond: The employer has a duty to respond to each of the committees’ concerns and related requests for policies or reports in writing and in a reasonable time. Again, a reasonable time is not defined in the law.
  • Notice of enforcement visits: If there are any governmental safety and health enforcement visits that the employer knows are planned, then the employer must give the committee notice of that visit unless it is prohibited by law.
  • Meetings and trainings on company time: The employer must allow trainings and meetings during working hours and on company time, provided that committee trainings do not exceed four hours per calendar year and meetings, conducted at least once per quarter, do not exceed two hours. If a meeting does exceed two hours, then employees need not be paid for the additional meeting time.
  • Protecting confidentiality: The employer must make its best efforts to refrain from disclosing information to the committee or its members that is either outside of the scope of the workplace safety committee or otherwise would be prohibited by law, such as the vaccination status of employees.

Next Steps:

Employers need to be responsive to any requests they receive from employees seeking to form a workplace safety committee.  While the specific processes outlined by the DOL for forming and governing such committees have not been finalized, this portion of the HERO Act itself took effect in November 2021, and New York employers therefore are already under an obligation to recognize employee requests to form such committees.


December, 2021

Diverging Vaccine Mandates at NYC/NYS/Fed Levels Present Pitfalls for Unwary Employers

By: Alexandra Lapes and Tracey I. Levy

Employers in New York face a panoply of overlapping and inconsistent obligations at the local, state and federal levels as the government seeks to contend with the latest threats from COVID-19.  New York issued a statewide mandate on December 10, 2021, that all businesses and venues must implement a full vaccination requirement or require masks be worn for everyone on their premises, effective as of December 13, 2021.  In tandem with New York State, on December 15, 2021, New York City updated its “Key to NYC” program to require employers implement a vaccine mandate and require employees who work in-person or interact with the public to show proof of vaccination by December 27, 2021.

Businesses that were part of the original Key to NYC program, which required only one dose of a COVID-19 vaccine, must require proof of a second dose by December 27, while all remaining businesses in the city must require employees to show proof of an initial vaccine dose by December 27, and proof of a second dose within 45 days thereafter.  New York City considers a covered workplace to be any location — including a vehicle — where an employee works in the presence of at least one other person.

Presently, the state’s mandate is effective until January 15, 2022, when it will be reevaluated and may be extended, while the city’s mandate does not have a specific sunset date.

  1. The mandate is full vaccination or full masking – no mix and matching permitted

Many employers in recent months had relaxed masking requirements for employees who are fully vaccinated, while those who are not vaccinated were required to wear a mask in the workplace, except when seated in a private office.  The state’s FAQs make clear that hybrid approach is no longer permissible.  An employer must either require everyone on premises to be fully vaccinated or require everyone — regardless of their vaccination status — to wear a face mask in the workplace.

Under state law, an employer can choose whether to implement a vaccine mandate or mask requirement, but the chosen requirement must apply in its entirety to all staff, patrons, and visitors throughout the premises.  New York City employers do not have that option – they must institute a full vaccination mandate.  If full vaccination is not applied uniformly to all, then New York State requires the employer to ensure everyone in its workplace complies with the masking requirement.

  1. Full vaccination currently means up to two doses

New York State defines “fully vaccinated” in accordance with the CDC’s definition, as 14 days past an individual’s last vaccination dose in their initial vaccine series (14 days past the second shot of a two-dose Pfizer-BioNTech or Moderna vaccine; 14 days past the one-shot Janssen/Johnson & Johnson vaccine).

  1. Face masks can be removed only for limited circumstances of limited duration

For businesses adopting a masking requirement, that requirement allows few exceptions.  In offices, masks can be removed only when necessary to eat or drink, or when an employee is alone in an enclosed room. Even in restaurants and bars, unless the business is strictly enforcing a full-vaccination requirement for everyone on premises, patrons can only remove masks when eating or drinking; restaurant staff must be wearing a face mask at all times.  For tv and film production, the talent can remove a face mask during filming, but must maintain six feet of distance from all others, such as the crew and production staff, and masks must otherwise be in place for everyone on premises. Hospital and healthcare settings must continue to ensure all employees and visitors are masked at all times, regardless of vaccination status.

  1. Granting a vaccination exception for those with accommodations means the employer does not have a “full vaccination” program under the New York State mandate

Employers who grant exemptions as an accommodation for individuals because of a medical, religious or other legally protected reason and permit those individuals entry on the premises apparently must then implement a masking requirement for everyone.  While the impact of accommodations on the full vaccination requirement is not explicitly addressed in the FAQs, one specific FAQ juxtaposes the prohibition on a hybrid approach of full vaccination or masking with a reference to the continuing responsibility of “unvaccinated individuals, including those with medical exemptions” to wear masks in accordance with CDC guidance.  The FAQs also footnote that they should be interpreted consistently with the Americans with Disabilities Act, workplace safety guidelines and applicable regulations.  It therefore appears that, when exceptions are made and a full-course vaccine requirement cannot be maintained in its entirety, all individuals in the workplace must be held to a masking requirement.

  1. Employers cannot automatically ban from the workplace all employees requesting a vaccination exemption as a reasonable accommodation

New Guidance for Employers on Equitable Implementation of COVID-19 Vaccine Requirements, published by the New York City Commission on Human Rights (NYCCHR), reminds New York City employers of their obligation to engage in a “cooperative dialogue” with any employee who requests to be exempted from complying with a vaccination requirement as a reasonable accommodation – whether based on disability, pregnancy, childbirth, lactation, religious beliefs  or observances, or status as a victim of domestic violence, stalking, or sex offenses.  The guidance recognizes that remote work or unpaid leave – actions that keep the unvaccinated individual out of the workplace – may be a reasonable accommodation, but indicates that placing an unvaccinated employee on leave should only be considered if no reasonable accommodation is possible that would enable the employee to continue performing the employee’s job duties in the workplace without posing a direct threat or an undue hardship.

Employees are supposed to submit requests for a reasonable accommodation under the Key to NYC program by December 27, 2021.  If an accommodation is granted, New York City employers must keep record of the basis for the accommodation and any supporting documentation.

  1. NYC requires employers verify and keep record of vaccination status

Under the Key to NYC program, employers cannot rely on an honors system or self-attestation of vaccination status.  Rather, employers must check each employee’s vaccination record (a CDC or other official immunization record, or the NYC COVID Safe App, the CLEAR Health Pass or the Excelsior Pass) and keep a record of each worker’s proof of vaccination, either by:

  • making a copy of the employee’s vaccine proof or a record of a reasonable accommodation with supporting documentation;
  • creating a paper or electronic record that includes the employee’s name, vaccine status including the date they must provide the second dose (if only submitting proof for the first dose), and record of a reasonable accommodation with supporting documentation; or
  • checking each employee’s proof of vaccination before they enter the workplace each day and keeping a record of each verification.

Independent contractors or non-employees must also provide proof of vaccination.  A New York City business can request that a contractor’s employer confirm proof of vaccination.

  1. NYC is requiring signage and certification of compliance

New York City employers have two additional obligations:

  • complete an official attestation sign created by the Department of Health and Mental Hygiene, affirming compliance with the vaccination requirement, and post it in a public space by December 27, 2021 (even if the business also has its own signage about vaccination); and
  • place the Vaccination Required Poster for Businesses in a place that is clearly visible to people before they enter the premises.

Pulling it together, with consideration of pending federal mandates

In addition to the layers of requirements issued by New York State and New York City, employers nation-wide with 100 or more employees need to anticipate that they will be subject to vaccination or weekly testing requirements under an OSHA directive, as we discussed in this prior blog article.  We have summarized the combined impact on the federal, state and local levels in the chart below.

While enforcement of the OSHA directive had been stayed by the federal appellate courts, the Sixth Circuit Court of Appeals dissolved the stay on December 17, 2021.  Pending further action by the Supreme Court, OSHA has advised employers that it will not issue citations for noncompliance before January 10, 2022, and will not issue citations related to the testing option before February 9, 2022, provided the employer is making good faith efforts to come into compliance.

Employers that are imposing a full vaccination requirement, either under the Key to NYC program or to meet the New York State mandate, may need to update their policies, but should otherwise have minimal additional obligations under the OSHA directive.  New York State employers with at least 100 employees that are instead adhering to a full-time masking requirement, and do not already impose a weekly testing obligation for their unvaccinated employees, will have additional compliance obligations under the OSHA directive.

Keep checking for new developments

The only thing certain about these requirements is that there could be more changes in the weeks to come.  Businesses should review their policies and procedures to ensure compliance with the current mandates and continue to check dedicated COVID-19 government websites and get legal advice to ensure compliance with any new requirements.


December, 2021

3 Actions for NY Employers to Mitigate Risk Under Expansive New Whistleblower Law

By Tracey I. Levy

New York has adopted new whistleblower law protections effective January 26, 2022 that create substantial liability exposure for employers.  Employees – both current and former, as well as individuals working as independent contractors – who report or object to any perceived violation of law, rule, or regulation will be protected against retaliation for making the report.  While lofty in its objectives, enforcement of the whistleblower law will present challenges for employers because it cloaks anti-retaliation protections around employees in a myriad of new circumstances.  Fortunately, there are some concrete actions that employers can take to help mitigate those risks.

Expansive Scope

Currently, employees are protected against retaliation under state law in discrete, and limited contexts, such as in regard to complaints of harassment or discrimination under the New York State Human Rights Law, or complaints by health care employees regarding conduct presenting a significant threat to public health or safety under the whistleblower law prior to its recent amendments.  The new whistleblower law extends those protections to the following covered conduct:

  • any report that an individual “reasonably believes” to be in violation of any law, rule or regulation – involving any level or branch of government, and regardless whether the reported violation pertains to a matter within the employee’s purview, and
  • any activity, policy or practice the employee “reasonably believes” presents a “substantial and specific danger” to public health or safety.

Employees are encouraged to report covered conduct to any public body – again at any level or branch of government – including law enforcement at any level and any member or employee of a legislative or judicial body.

Prerequisite to Public Reporting

Before disclosing a legal violation to a public body, the employee must have made a “good faith” effort to notify a supervisor of the violation and allowed the organization a reasonable opportunity to correct it.  However, the new law recognizes many exceptions to this internal notice requirement including when there is:

  • imminent and serious danger to public health or safety;
  • risk to endangering the welfare of a minor;
  • reasonable belief that reporting to the supervisor would result in destruction or concealment of evidence;
  • reasonable belief that reporting internally will lead to physical harm to the employee or to other individuals; or
  • reasonable belief that the supervisor already knows of the covered conduct and will not correct the issue.

Protected Actions

whistleblower protections will apply if the employee experiences any retaliatory adverse action taken to discharge, threaten, penalize or in any other manner discriminate against the employee – including in regard to terms and conditions of employment, current or future employment, or reporting suspected citizenship or immigration status of an employee or family or household member – because the employee either:

  • disclosed or threatened to disclose covered conduct;
  • participated in an investigation of such conduct; or
  • objected or refused to participate in any such conduct.

Abundant Remedies

Employees are afforded a private civil right of action, with a right to a jury trial, for claimed violations of the whistleblower law, and can be awarded the full panoply of legal remedies, including injunctive relief, reinstatement or front pay, back pay, and their legal costs and attorneys’ fees.  Punitive damages are also available if the employee establishes the employer’s violation of the whistleblower law was “willful, malicious or wanton.”   In addition, employers face a civil penalty of up to $10,000.  An employee faces liability to the employer for legal fees and costs if a court finds that the whistleblower action is frivolous.

Why Employers Should Be Concerned

The Equal Employment Opportunity Commission’s charge filing statistics reflect that retaliation claims, which hovered in the 25 to 30 percent range for nearly a decade, began increasing steadily starting in 2007, the year after the U.S. Supreme Court in Burlington Northern Santa Fe Railroad Co. v. White adopted a broad definition of retaliatory behavior under Title VII.  Last year, nearly 56 percent of all charges filed with the EEOC included a retaliation claim.  New York employers should similarly anticipate that, with the grounds for invoking whistleblower protections vastly expanded, and the state law definition of what comprises retaliatory conduct newly broadened, they too will face a significant risk of having to defend a whistleblower claim.

Three Employer Actions


Employers are required to post a notice that informs employees of their protections, rights and obligations under the new whistleblower law, but the Department of Labor has not yet issued that form notice.


While the law does not require employers to adopt a whistleblower policy, it would be prudent for those employers that do not already have such a policy in place to add it to their employee handbooks.


Further, because this law centers around the actions of supervisors – in receiving employee concerns of covered conduct, and in how they treat an employee after a report is made – employers may want to educate (or reinforce existing training for) their supervisors with regard to:

  • the employer’s expectations on compliance with legal obligations and maintaining a safe workplace;
  • the appropriate reporting channels to escalate questions or concerns regarding possible legal violations or unsafe conditions;
  • the conduct covered by the whistleblower law;
  • how to respond to employee concerns related to covered conduct;
  • the prohibition against retaliation, with examples of prohibited actions; and
  • how to engage with an employee after that employee has reported a concern related to covered conduct.

Consistent guidance and regular training are employers’ best options to prepare supervisors to respond appropriately when employees raise concerns that might bring them within the protections of the whistleblower law, and thereby reduce their risk of liability.


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.


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.”


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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