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.
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.”
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.
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.”
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.
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.”
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.
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.
“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.