New York Labor and Employment Law Report

The federal District Court for the Northern District of New York issued a temporary restraining order (TRO) on Sept. 14, 2021, enjoining New York State officials from enforcing emergency regulations imposing a vaccination mandate for certain healthcare workers to the extent that the regulations do not allow for a religious exemption to the mandate. The TRO is available here. As reported here previously, the emergency regulations, which were issued on August 26 by the Public Health and Health Planning Council under the New York State Public Health Law, apply to hospitals, nursing home and home health agencies, among other entities. The emergency regulations were notable for not including provisions for a religious exemption or any test out provisions. The court’s TRO places the lack of a religious exemption provision on hold, pending the outcome of the proceeding.

Read More >> Federal Court Issues TRO Enjoining Omission of a Religious Exemption from the Emergency Public Health Vaccination Regulations

New York employers are presently “activating” their HERO Act plans, after the New York State Department of Health (DOH) officially designated COVID-19 as a “highly contagious communicable disease that poses risk to the public health.”

Read More >> NY HERO ACT “FAQs”

On Sept. 6, 2021, Gov. Kathy Hochul directed the NYS Commissioner of Health to designate COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health. The designation is official and available on the NYS Department of Health (NYSDOH) website.

Read More >> Employers Activate Your HERO Act Plans! NY Commissioner of Health Issues NY HERO Act Designation for COVID-19

Effective Aug. 26, 2021, New York State now requires all employers of health care workers working within the state to ensure that their personnel have received a full COVID-19 vaccination. The definition of “personnel” contained in the new regulation is expansive, including employees, students, volunteers and any other affiliates of the organization who “engage in such activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients or residents to the disease.” 

Read More >> Mandatory Vaccination for Health Care Workers 

On July 29, 2021, the Internal Revenue Service (IRS) updated its Tax Credits for Paid Leave Under the American Rescue Plan Act (ARPA) of 2021 Guidance (the Guidance). As a reminder, private sector employers with fewer than 500 employees could voluntarily elect to extend ARPA benefits to their employees through Sept. 30, 2021, and in exchange, receive a federal tax credit. 

Read More >> IRS Updates American Rescue Plan Act Guidance

The following article ran in the August 2021 edition of WestView News and is reprinted here with permission. 

Effective as of July 5, 2021, New York City fast food employers may only discharge employees for just-cause. This new law effectively chips away at the American tradition of at-will employment. 

Read More >> New York City Fast-Food Employers Beware: Just-Cause Needed for Firing

The Fair Chance Act (FCA), which was added to the New York City Human Rights Law (NYCHRL) on Oct. 27, 2015, provides “fair chance” protections to workers with criminal convictions and limits when and to what extent employers can consider an individual’s criminal history in making employment decisions. On July 15, 2021, the New York City Commission on Human Rights (NYCCHR) issued new guidance¹ interpreting key amendments to the FCA that go into effect on July 29, 2021. 

Read More >> NYC Amends Fair Chance Act

The following article ran as a guest opinion in the July 29, 2021 edition of the Rochester Beacon and it is reprinted here with permission. 

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Since the first COVID-19 vaccines were granted emergency use authorization by the Food and Drug Administration in December, many businesses have wrestled with whether to impose vaccine mandates for their employees. This is a difficult question, with many considerations, including whether such a requirement is necessary or practical. Perhaps the most significant consideration, with which businesses and lawyers have struggled, is whether such a requirement is “legal.”

Read More >> Department of Justice Issues Opinion on the Legality of COVID-19 Vaccination Mandates

On Friday, July 9, 2021, President Biden signed an Executive Order on “Promoting Competition in the American Economy” (the Order) aimed at limiting certain anti-competitive practices across multiple sectors, including agriculture, telecommunications, technology and pharmaceuticals. The Order highlights a multitude of anti-competitive practices in these sectors, including the increasing pervasiveness of non-competition and related agreements throughout the American economy. While the Order itself does not prohibit non-competition agreements — and is not expected to have any immediate effect on their enforceability — employers should view the Order as a possible precursor to further actions over the coming months and years.

Read More >> Executive Order has Little Immediate Impact on Employee Non-Competition and Related Restrictive Covenants

On the evening of July 6, 2021, the NYS Department of Labor (DOL) published the long awaited “Airborne Infectious Disease Exposure Prevention Standard” (Standard), a general “Model Airborne Infectious Disease Exposure Prevention Plan,” and several industry specific model prevention plans as well. These are now available on the DOL’s website. The model plans are currently available in English, but the website states that they will also be available in Spanish soon, as required by statute. 

Read More >> NY HERO Act – NYSDOL Publishes Airborne Infectious Disease Exposure Prevention Standards and Model Plans For Various Industries

In a decision of interest to New York State employers subject to federal safety regulations, the Second Circuit Court of Appeals recently answered that question in the negative. In Bey v. City of New York¹, the Court concluded that where a federal safety regulation expressly prohibits a requested medical accommodation, that regulation trumps the requirements imposed by the Americans with Disabilities Act (the ADA) and Title VII and shields the employer from liability under those statutes. 

Read More >> Must an Employer Offer a Reasonable Accommodation if a Federal Safety Regulation Prohibits Such Accommodation? 

“How is my hair? Does it look OK?” With employees returning to onsite work, questions regarding employers’ grooming and dress code policies are bound to crop up. When responding, employers should be cognizant of the fact that their dress code and grooming policies must comply with expanding legal protections against discrimination based on race-based hairstyles. 

Read More >> How is My Hair? A Brief Review Of Hairstyle Discrimination In The Workplace