Labor Relations

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

September 14, 2021

By Peter A. Jones

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

NY HERO ACT “FAQs”

September 10, 2021

By Andrew D. Bobrek, Stephanie H. Fedorka, and Adam P. Mastroleo

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.”

We will be further addressing this urgent issue – on Tuesday, Sept. 14 at noon (EST) – during the next installment of our weekly “Business in 2021” webinar series. Specifically, we plan to discuss many of the unsettled questions employers currently face when “activating” their HERO Act plans, as well as other developing legal issues, including President Biden’s vaccine mandate announcement. 

To register for our “Business in 2021” weekly programming, please click here

We know that our clients and Bond friends nevertheless have many urgent questions about “activating” their HERO Act plans, so we have developed these “FAQs” for their reference. Yesterday, New York issued additional guidance on this subject. Where appropriate, we have referenced this guidance below.

  1. Is there a grace period or deadline for activation of our HERO Act plan? 

Neither the legislation nor any of the available guidance contains a grace period or deadline for employers to “activate” their HERO Act plans. But as a best practice, it is recommended that employers take this step as soon as practicable and considering the particular facts and circumstances.

  1. What steps do we need to take to activate our HERO Act plan?

According to New York regulators, employers must take the following steps to activate their HERO Act plans: 

  • Immediately review the worksite’s exposure prevention plan and update the plan, if necessary, to ensure that it incorporates current information, guidance, and mandatory requirements issued by federal, state or local governments related to the infectious agent of concern.
  • Provide a “verbal review” of the exposure prevention plan with their employees.
  • Provide each employee with a copy of the exposure prevention plan in English or in the language identified as the primary language of such employees, if the state has published a translated version in that language. 
  • Post the exposure prevention plan at the worksite and make sure it is accessible to employees during all work shifts.
  1. What if we do not currently have a HERO Act plan in place?

Covered private sector employers were required to have adopted their exposure prevention plans by Aug. 5, 2021, and to have conducted a verbal review (including distribution of a written copy) of those plans with employees by Sept. 4, 2021. 

If these steps have not already been completed, then your business or organization should immediately work to develop, adopt, disseminate and review with employees a compliant HERO Act plan. 

New York previously published an Airborne Infectious Disease Exposure Prevention Standard under the HERO Act, as well as a general and industry-specific Model Airborne Infectious Disease Exposure Prevention Plans, for reference purposes.

  1. What happens if I make changes to a “model” HERO Act plan? 

According to the relevant statute and state guidance, employers are allowed to adopt “alternative” prevention plans under the HERO Act, so long as these plans: (i) are tailored and specific to the hazards in the respective industry and worksites of the employer; and (ii) equal or exceed the minimum standards provided by the state’s Model Airborne Infectious Disease Exposure Prevention Plan. 

If adopting an “alternate” plan, non-unionized employers are required to have “meaningful participation” from employees, as part of the process. Employers with represented workers must go even further and obtain union approval. 

Notably, New York regulators have indicated that not all changes to the “model” plans will trigger the above HERO Act obligations. For example, modifications to the “Controls” or “Advanced Controls” sections of New York’s model plans will not necessarily result in creation of an “alternate” plan. It also stands to reason that other non-material revisions to the model plans, such as removing state logos and adding information to open fields, likewise will not trigger the HERO Act’s employee “participation” or union “approval” requirements.

  1. What does “verbal review” mean when it comes to our employee communications about the activated HERO Act plan?

In light of DOH’s designation, employers are now required to conduct a “verbal review” of their HERO Act plans with employees. Unfortunately, the underlying legislation does not define this term. The word “verbal” is generally defined simply as “using words.” In turn, there is a question of whether or not the HERO Act review needs to be conducted through some type of oral communication to workers. And an argument can be made that written communications about an employer’s HERO Act plan will suffice. 

In recent guidance, New York regulators did not squarely address this issue and instead advised that employers “should conduct the verbal review in a manner most suitable for the prevention of an airborne infectious disease.” New York further advised that this process could include a review “via audio or video conference technology,” and state regulators did not expressly rule-out that other communication methods could be compliant. 

  1. Do we have to train employees on our activated HERO Act plan?

Employers are required to conduct a “verbal review” of their HERO Act plan, upon activation. Please see the answer to FAQ 5, above, for more information on how this review may be conducted. 

In general, this verbal review is akin to regular employee training, and, among other things, should convey the applicable workplace requirements (screening, masking, social distancing, etc.), as well as the resources and protections available to employees.

We additionally note that the model plans contain references to employee “training” and include certain enumerated topics for discussion with employees.  Seemingly, New York regulators are using the term “training” here interchangeably with the “verbal review” required under the HERO Act and thereby delineating what this review should entail.  Employers who have adopted these model plans should proceed accordingly.

  1. Do we have to screen employees now that our HERO Act plan is activated? What about visitors?

The HERO Act requires that employers screen employees, in accordance with applicable DOH or CDC guidance. However, there is no such guidance currently in place. 

In the absence of such authority, one potential compliance approach for employers to consider entails following the same screening procedures that were in place under the prior “NY Forward” requirements, e.g., by issuing and reviewing daily employee queries about whether they have experienced any COVID-19 symptoms or been exposed to any infected individuals.

The screening of visitors is not required under the HERO Act. But employers may wish to undertake such precautions depending on the particular facts and circumstances, and if necessary to comport with any other local, state or federal requirement.

  1. What about employee masking under our activated HERO Act plan?

The HERO Act requires that employers establish requirements for the use of face coverings, once again, in accordance with applicable DOH or CDC guidance. 

Currently, New York has adopted the CDC’s masking recommendations. Accordingly, New York employers are advised to have all non-vaccinated employees wear appropriate masks while indoors. Additionally, the CDC advises that even vaccinated persons should wear masks if they work in areas with substantial or high COVID-19 transmission rates. Presently, the CDC has designated all of New York state as a substantial or high transmission area.

  1. Is social distancing required under our activated HERO Act plan, even for those who are vaccinated?

The HERO Act specifies that employers must maintain “effective social distancing” requirements. And the state’s model standard further specifies that employers should maintain, when possible, at least six feet of physical distancing between workers or as otherwise specified by the state or CDC.

  1. Are we required to publish the entire HERO Act plan in our employee handbook?

A plain reading of the HERO Act seemingly requires the entire plan to be published in your employee handbook. State guidance likewise indicates this is the case. This requirement makes more sense now, seeing as the plans must be finalized and activated due to DOH’s designation. 

  1. Are we required to provide employees with a copy of the HERO Act plan?

The HERO Act standard requires employers to provide each employee with a copy of the exposure plan in English or, if the state has published a translated model plan, in the language identified as the primary language of the employee. 

Currently, the state has only published a Spanish translation of its general model plan. So if an employee’s primary non-English language is something other than Spanish, it will be compliant for employers to provide an English version of plan, for the time being. It is possible that New York will publish additional translations in the future. 

Employers should also keep in mind that copies of such plans must additionally be provided to independent contractors and other contingent workers at their sites who are covered under the HERO Act.

  1. What are we supposed to do with employees who are working remotely?

The HERO Act’s definition of a “worksite” does not include locations where employees are telecommuting or teleworking unless the employers has the ability to exercise control over the area. Presumably, these exempt locations include personal residences and other private locations where employees are performing remote work. However, state officials have advised that employer-owned vehicles and employer-provided housing would constitute a “worksite” under the HERO Act (although the posting requirement would not apply to employer-owned vehicles). 

  1. Does the HERO Act only apply to employees?

No, the HERO Act applies to employees, as well as to non-employee contingent workers, such as independent contractors, domestic workers, home care and personal care workers, day laborers, farm workers and other temporary and seasonal workers. 

Even so, differing requirements may apply to these contingent workers under the HERO Act. For example, according to the state, employers are not required to conduct a “verbal review” of their HERO Act plans with contingent workers from staffing agencies, with contractors and subcontractors or with individuals delivering goods or transporting people to and from the worksite.

  1. What if employees at my worksite are already covered by OSHA’s Healthcare Emergency Temporary Standard (ETS)? 

New York has advised that its Airborne Infectious Disease Exposure Standard and the corresponding infection control requirements do not apply to any employee who is already covered under a temporary or permanent OSHA standard regarding COVID-19 or other airborne infectious agents and diseases. 

Accordingly, this exemption covers workers who are covered by OSHA’s COVID-19 Healthcare ETS. But employers in the healthcare industry should keep in mind that, if OSHA’s ETS expires or is rescinded, or otherwise does not apply to their particular operations or to specific employees, then the HERO Act requirements will apply.

  1. What does activation under the HERO Act require, if I have multiple work locations?

If employers have different worksites, industries and environments, it may be prudent or necessary to include differing infection control measures, or even separate plans for multiple work sites. On this point, New York regulators have advised: 

“Employers should select the most appropriate template and customize the controls section to add appropriate controls for the industry or work site(s) by assessing specific employee or contractor functions and unique circumstances and conditions of particular work sites to determine the appropriate template to utilize.”

Employers may be required to take additional compliance steps, e.g., by making separate postings at each worksite.

  1. What are the penalties for non-compliance with the HERO Act?

New York regulators have advised that non-compliant employers may be subject to daily penalties of $50 and violations ranging up to $10,000 for failing to abide by the requirements of the HERO Act. There are increased penalties for subsequent violations that occur within a six year period. The HERO Act also permits employees bring a private cause action under certain circumstances.

  1. Does the HERO Act apply to school districts, local government, or public authorities?

No, in drafting the HERO Act, New York expressly exempted the state government, as well as any political subdivision of the state (e.g., local government), public authorities and “any other governmental agency or instrumentality of the state.”

  1. Does the HERO Act apply to private, nonprofit institutions.

Yes, the HERO Act applies to all private-sector employers, including nonprofit organizations in New York.

We appreciate that our clients and Bond friends likely have more questions. We will do our best to address these issues on this Tuesday’s webinar and through our continuing community outreach. 

We must reiterate that nothing in this memorandum constitutes legal advice, and New York employers should contact their Bond attorney or other legal counsel when addressing compliance issues under the HERO Act.

Finally, if you have any questions or need Bond’s help, please contact Andy Bobrek, Adam Mastroleo or Stephanie Fedorka or the Bond attorney with whom you are regularly in contact, for assistance.

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

September 7, 2021

By Stephanie H. Fedorka

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

NYC Amends Fair Chance Act

July 29, 2021

By Mallory A. Campbell

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

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

July 29, 2021

By Adam P. Mastroleo

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. 

***

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

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

July 14, 2021

By Bradley A. Hoppe and Samuel P. Wiles

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

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

June 22, 2021

By Nihla F. Sikkander and Krystal Macharie

“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

Technical Amendments to NY HERO Act Passed – What’s Next For Employers

June 14, 2021

By Stephanie H. Fedorka

As previously reported, the New York Health and Essential Rights Act (HERO Act) was signed into law by Gov. Andrew Cuomo on May 5, 2021. The governor announced that his approval was based on his having secured an “agreement” with the NYS Legislature to make certain “technical changes” to the bill. On May 26 the amendments passed in the NYS Senate, and on June 7, they passed in the NYS Assembly. On Friday, June 11, the bill was delivered to and signed by Governor Cuomo. 

Read More >> Technical Amendments to NY HERO Act Passed – What’s Next For Employers

Governor Cuomo Signs HERO Act Into Law

May 6, 2021

By Stephanie H. Fedorka

On May 5, 2021, Governor Cuomo officially signed the New York Health and Essential Rights Act (HERO Act) into law. The HERO Act effectively imposes significant obligations on covered employers to provide and maintain a safe workplace in the face of the ongoing COVID-19 pandemic, and for future airborne infectious disease outbreaks. As previously reported, the HERO Act amended the New York Labor Law by adding two new sections: (1) Section 218-b, which governs development and adoption of an airborne infectious disease prevention policy; and (2) Section 27-D, that requires employers to permit the creation of workplace safety committees. Both sections only apply to private sector employers. However, Section 27-D specifically only applies to private employers with at least 10 employees. 

Read More >> Governor Cuomo Signs HERO Act Into Law

Dismissing Non-Willful Claims Under the FLSA – the Second Circuit Rules on an Issue of First Impression

May 3, 2021

By Michael D. Billok

Everybody knows that the statute of limitations for claims under the Fair Labor Standards Act (FLSA) is two years, unless the claim is for a willful FLSA violation, in which case the statute of limitations is three years. Okay, maybe everybody doesn’t know that—but attorneys who regularly bring or defend wage-and-hour claims certainly do (and if you’re reading this blog, you probably do as well). So an FLSA claim filed in 2021 based on allegations from 2017 can be easily dismissed at the outset of litigation, because such a claim is clearly beyond the longest possible statute of limitations of three years. Now, consider this: what if a plaintiff files a claim in May 2021, alleging an FLSA violation from June 2018? In that case, the only way the plaintiff can bring a valid FLSA claim is if the claim is willful, because then the plaintiff could utilize the three-year statute of limitations.

Read More >> Dismissing Non-Willful Claims Under the FLSA – the Second Circuit Rules on an Issue of First Impression

New York State Legislature Passes HERO Act – Significant Workplace Health and Safety Obligations for Employers are on the Horizon

April 30, 2021

By Stephanie H. Fedorka

On April 20, 2021, the New York Legislature passed the “New York Health and Essential Rights Act” or “HERO Act.” To date, the bill has not been signed by the Governor, but we expect it to be executed in the near future. The bill, as written, would impose significant obligations on employers, regardless of size, in an effort to prevent exposure to airborne infectious diseases. 

Read More >> New York State Legislature Passes HERO Act – Significant Workplace Health and Safety Obligations for Employers are on the Horizon

New York Officially Lifts Travel Quarantine Requirement for Domestic Travelers

April 1, 2021

By Adam P. Mastroleo

On April 1, 2021 the New York State Department of Health (NYSDOH) officially updated its Interim Guidance for Quarantine Restrictions on Travelers Arriving in New York State to remove the quarantine requirement for domestic travelers arriving in New York State from other U.S. States or territories. This updated guidance document has been anticipated since Governor Cuomo announced on March 11, 2021, that the domestic traveler quarantine requirement would be lifted on April 1. 

Read More >> New York Officially Lifts Travel Quarantine Requirement for Domestic Travelers