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.
At long last, the Occupational Safety and Health Administration (OSHA) has finally released a COVID-19 standard that it has stated was coming since January. Healthcare employers will be required to abide by the new emergency temporary standard (ETS) published by OSHA (the last time OSHA issued an emergency standard was in 1983 to address asbestos exposure). The emergency workplace safety rule was published on OSHA’s website on June 10, 2021 and is effective immediately upon publication in the Federal Register. Voluntary guidance for other industries will follow.
Our previous information memo discussed several issues that employers should be aware of when considering whether to provide an incentive to employees to encourage them to receive the COVID-19 vaccine. On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued updated guidance to employers on workplace COVID-19 vaccination policies, including guidance on employer-offered COVID-19 vaccine incentives.
On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued revised guidance regarding COVID-19. The updated guidance, consisting of 21 FAQs, includes information on mandatory vaccination policies, disability and religious accommodations, accommodations for vaccinated employees, and employer-provided vaccination incentives.
At his press briefing on Thursday, May 27, Governor Andrew Cuomo announced that employers will be required to provide paid sick leave to any employee who experiences side effects from the COVID-19 vaccination. Today, the New York State Department of Labor (DOL) issued guidance concerning such leave.
The New York legislature has introduced two pieces of legislation that will greatly impact how healthcare facilities in the state are staffed. The first bill, A108/S1168, pertains to hospitals, and the second bill, S.6346/A.7119, pertains to nursing homes. Both proposed laws have passed the Senate and Assembly and await the governor’s signature.
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.
On May 6, the U.S. Department of Labor (USDOL) withdrew its final regulations that would have revised the standard for determining whether a worker is an employee covered under the Fair Labor Standards Act (FLSA) or an independent contractor who is not subject to the FLSA’s minimum wage and overtime requirements. According to the USDOL, the independent contractor rule that was withdrawn “is inconsistent with the FLSA’s text and purpose, and would have a confusing and disruptive effect on workers and businesses alike due to its departure from longstanding judicial precedent.”
On March 3, 2021, New York City Mayor Bill de Blasio signed Executive Order No. 64 that requires outside entities that contract with New York City agencies for “human services” to report information related to sexual harassment complaints.
“Human services” is defined as services provided to third parties, including social services such as day care, foster care, home care, homeless assistance, housing and shelter assistance, preventive services, youth services, and senior centers; health or medical services; legal services; employment assistance services, vocational and educational programs; and recreation programs. N.Y.C. Admin. Code § 6-129(c)(21).
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.
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.
Under the American Rescue Plan (ARP), certain private-sector and governmental employers may claim refundable tax credits which provide reimbursement for the cost of providing Families First Coronavirus Response Act (FFCRA) style paid sick and family leave to employees, including leave for COVID-19 vaccination related reasons. The ARP does not require employers to provide paid leave; however, it provides tax credits for employers that voluntarily opt to do so. The tax credits are available to eligible employers who provide leave from April 1, 2021 through Sept. 30, 2021.