While many courts have so far rejected vaccine mandate challenges, yesterday’s decision out of New York reverses that trend. Judge David Hurd of the Northern District of New York in Dr. A, et al. v. Hochul, 1:21-cv-01009-DNH-ML, issued a preliminaryinjunction yesterday, enjoining the NY Department of Health from enforcing the challenged emergency regulation § 2.61(c) which required most health care workers to be vaccinated against COVID-19 without accommodating employees’ religious beliefs.
The named plaintiffs, proceeding pseudonymously, challenged the mandate on religious discrimination grounds. As stated in the Complaint, the Plaintiffs “hold the sincere religious belief that they cannot consent to be inoculated . . . with vaccines that were tested, developed or produced with fetal cell[ ] line[s] derived from procured abortions.” (internal citations omitted). The court concluded that Section 2.61 was pre-empted by Title VII’s, prohibitions of employment discrimination on the basis of religion. The holding, in relevant part, reads as follows:
“Defendants, their officers, agents, employees, attorneys and successors in office, and all other persons in active concert or participation with them, are preliminarily ENJOINED from enforcing, threatening to enforce, attempting to enforce, or otherwise requiring compliance with § 2.61 [that required most healthcare workers to be vaccinated against COVID-19 within thirty days] such that: … Section 2.61 is suspended in operation to the extent that the Department of Health is barred from enforcing any requirement that employers deny religious exemptions from COVID-19 vaccination or that they revoke any exemptions employers already granted before § 2.61 issued[.]”
NY Governor Hochul has signaled that the state intends to appeal this decision and that she “stands behind [the healthcare workers’ vaccination] mandate.” However, ultimately, the state may end up allowing for religious exemptions under this emergency order, while otherwise remaining aggressive in pursuing vaccination mandates through a variety of carrot-and-stick approaches.
On September 6, 2021, New York State Health Commissioner Howard Zucker designated COVID-19 as a highly contagious communicable disease. This designation sets into motion the operative requirements of the New York’s Health and Essential Rights Act (“HERO Act”). The Act, adopted in May of this year, required most New York employers to establish worksite exposure prevention plans and appoint supervisory employees to oversee the implementation of these plans when it becomes necessary.
What to do ASAP
At the time of the HERO Act’s adoption, COVID-19 was not designated as a highly contagious communicable disease. But now, a number of key provisions are triggered. At this time employers are required to:
Review their worksite exposure plans and update them if necessary to ensure compliance with latest guidance;
Finalize and promptly activate the exposure prevention plan;
Provide a verbal review and training in connection with the exposure prevention plan:
Such training and review must cover the infectious agent and the disease it can cause; the signs and symptoms of disease, how the disease is spread, all of the elements of the exposure safety plan, the activities and locations at the worksite that may involve exposure to the infectious agent, the use and limitations of exposure controls, as well as employee rights under Labor Law, Section 218-B.
Provide each employee a copy of the plan in English and in Spanish, to those employees who identify Spanish as their primary language, a copy of which is available here;
Post a copy of the exposure prevention plan in a conspicuous location at the worksite;
Ensure that a copy of the exposure prevention plan is easily accessible to employees during all work shifts.
Employers are required to ensure that their exposure prevention plans are actually followed at the worksite and, as a result, must designate certain supervisory employees to implement and ensure compliance with the plans.
Of particular import now are the anti-retaliation provisions of the HERO Act. Employers must not retaliate against employees who:
in good faith report potential violations of the Act or the exposure prevention plans adopted in connection therewith to any state, local or federal authority,
report an airborne infectious disease concern or seek assistance or intervention with such exposure concerns from their employer or a governmental body, or
refuse to work where they believe in good faith that such work exposes them, other employees or the public to an unreasonable exposure to an airborne infectious disease, provided an employer is given notice or reasonably should have known of such unreasonable exposure.
An employer is required to maintain records of communications between them and employees regarding potential risk of exposure for two years after the conclusion of the designation from the Commissioner of Health.
Do not hesitate to contact us to seek clarification on specific application to your particular circumstances.This area of the law is changing on a daily basis. Many more changes are sure to be seen in the days and weeks ahead.
Biometric Identifier Information Law – The Four Questions:
May commercial establishments collect biometric identifier information of customers? Yes, if they provide appropriate notice.
May commercial establishments or financial institutions sell, share or exchange for anything of value biometric identifier information of customers? No, except with law enforcement agencies.
Do security cameras fall under the law’s prohibitions? No, provided software or computer analysis is not used after collection to pull out biometric identifier information.
Does a commercial establishment need to provide notice to employees to collect biometric identifier information? No, under the rule it does not appear to be necessary.
Biometric Identifier Information Law – In Depth
New York City’s little-publicized Biometric Identifier Information Law (“BIIL”) takes effect on July 9, 2021. The law prohibits commercial establishments, which are defined as places of entertainment, retail stores, or food and drinks establishments from, collecting, using or retaining biometric identifier information (“BII”) without previous disclosure by clear and conspicuous signage in the form prescribed by the commissioner of consumer and worker protection by rule. BII as defined as any physiological or biological characteristic “that is used by or on behalf of a commercial establishment, singly or in combination, to identify, or assist in identifying, an individual, including, but not limited to: (i) a retina or iris scan, (ii) a fingerprint or voiceprint, (iii) a scan of hand or face geometry, or any other identifying characteristic.”
Additionally, there is a broad prohibition on the sale, trade, lease or exchange for anything of value of BII by arguably any business establishment, including financial institutions.
While the law does allow for audio and video recording as well as photography in commercial establishments, it (1) prohibits subsequent analysis of same by software to pull out BII and (2) prohibits (seemingly categorically) the sale, sharing or leasing of images or video to third parties, except law enforcement agencies.
While the employer-employee relationship is not directly affected by this law unlike New York State’s proposed biometric privacy law, employers should alert their employees to the requirement and change their collection practices in order to avoid exposure to the consumer’s private right of action provided for under the BIIL. Secondly, while not directly spelled out in the law, it seems that employers may not sell their employees’ BII although they may collect same without notice. Lastly, employers should already be aware that New York State already prohibits employers from requiring the fingerprinting of employees as a condition of obtaining employment or continuing employment under NY Labor Law § 201-a.
On May 28, 2021, the EEOC issued new guidance regarding employer vaccination policies. Updating the previously issued Q&A, the new guidance addresses mandatory vaccinations, vaccine incentives and disability accommodation concerns. Working in tandem with the new EEOC guidance, OSHA has suspended the posting requirements for COVID-19 vaccination side effects experienced by vaccinated employees as a result of employer-administered vaccinations in order to encourage employer vaccination efforts.
Employers should note, however, that the EEOC formulated this guidance prior to CDC’s updated guidance for fully vaccinated individuals. It remains uncertain how and whether the EEOC plans to incorporate the CDC’s new approach to vaccinated individuals into further guidance Here are several key takeaways for employers.
Under federal law, an employer may mandate COVID-19 vaccinations for employees physically present at the workplace, subject to reasonable accommodations under Title VII, the ADA and other EEO considerations. Under EEOC guidance, reasonable accommodations to any vaccine mandate must be offered to any employees with disabilities, sincerely held religious beliefs, and related reasons.
Under the ADA, an employer may not require compliance with a vaccine mandate for an employee with a recognized disability unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace. A “direct threat” is defined as a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation.
A direct threat assessment is an individualized assessment of the employee’s present ability to safely perform the essential functions of the job based on a number of referenced factors including duration of risk, nature and severity of potential harm, likelihood and imminence of such harm.
These factors depend on “reasonable medical judgment that relies on the most current medical knowledge about COVID-19,” including for example the level of community spread at the time of the assessment.
Even if a “direct threat” assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat.
If an employee expresses a religious objection to a COVID-19 vaccination, employers should engage in an interactive process to assess the possibility for a reasonable accommodation. Absent undue hardship (defined more narrowly than under the ADA), reasonable accommodations can include masking, social distancing, and telecommuting, and other alternatives.
Both under the ADA and the Genetic Information and Non-Discrimination Act (GINA), an employer may offer employees certain incentives for obtaining a COVID-19 vaccine whether through an employer-run program or an external healthcare provider. But, for vaccination programs administered by employers or their agents, any incentive (which includes both rewards and penalties) can not be so substantial as to be “coercive”. This incentive limitation does not apply if an employer offers an incentive to employees to voluntarily provide documentation or other confirmation for externally administered vaccination programs.
However, GINA’s Title II prohibitsemployers from offering any incentives to an employee in exchange for a family member’s receipt of a vaccination from an employer or its agent. GINA does not prohibit employers from offering employees’ family members an opportunity to get vaccinated without incentives.
Under Title VII, employees who are seeking an exemption from an employer’s vaccination requirement for pregnancy-related reasons may be entitled to job modifications, including telecommuting, changes to work schedules, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work.
Even fully vaccinated employees may request accommodations due to COVID-19 concerns. When that occurs, an employer should engage in an interactive process to determine if there is a disability-related need for reasonable accommodation, e.g., in cases of immunocompromised employees.
What to Expect Next and Outstanding Issues
Both Pfizer and Modern recently applied for full approval of their vaccines by the FDA. The EEOC specifically disclaims any jurisdiction to discuss the legal implications of the vaccines being under the Emergency Use Authorizations (EUA) by the Food and Drug Administration (FDA). As the EUA status changes to full FDA approval or current medical knowledge develops, the EEOC may choose to issue subsequent guidance.
As things stand now with the vaccines still being administered under the EUA, we have already seen lawsuits challenging the employers’ ability to mandate vaccines in the workplace, though so far unsuccessfully. For example, a lawsuit filed by employees of Houston Methodist Hospital, Jennifer Bridges et al. v The Methodist Hospital, was summarily dismissed by a federal judge in the Southern District of Texas, in a decision that relied in part on the EEOC guidance concerning vaccinations. That challenge, however, is not likely to be the last.
Employers should expect growing pains with any policies going forward under the current back-to-work environment. As worksites are opening up to more and more employees, employers should expect more interpersonal conflicts between employees and more resistance to any policy, however reasonable, as employees adjust to business as usual. As we go into fall when many offices and worksites are expected to be fully operational and schools are hopefully fully open to in-person instruction, employees and employers are indisputably going to be seeing additional (or different) stresses of navigating office dynamics that were not present over the past year and a half. If COVID-19 cases start popping up in the classrooms again in the new academic year, we may see additional or extended regulations and guidance at the state, federal and local levels relating to leave policies.
On May 5, 2021, NY Governor Andrew Cuomo signed into law the New York Health and Essential Rights Act, commonly known as the HERO Act. The new law (1) requires the New York Department of Labor (“NYDOL”) to develop enforceable industry-specific minimum standards for the private employment sector in order to protect employees from defined airborne infectious diseases, (2) prohibits retaliation against employees who exercise their rights under the Act, and (3) requires some employers to facilitate the creation of workplace safety committees.
Section 1 of the Act becomes effective on June 4, 2021 on which date the DOL is required to issue its safety standards, and the anti-retaliation requirements go into effect. Section 2 with its safety committee requirements and anti-retaliation provisions becomes effective on November 1, 2021.
In his signing statement, Governor Cuomo promised various amendments to the statutory text to correct perceived deficiencies of the Act, including delaying the effective date of Section 1 of the Act by 30 additional days and clarifying the language to provide for an additional 30 days for an employer to adopt model plan after DOL’s model plans are issued. But, for now, with the issuance of new minimum standards less two weeks away, employers should familiarize themselves with the language of the HERO Act and assess how they are going to comply with its provisions. Employers should also review their existing COVID-19 safety plans and any proposed revisions they plan to enact consistent with the industry-specific guidance issued by the DOH.
Model Safety Plans
Section 1 of the HERO Act covers employees in the private sector, including part-time workers, domestic workers, independent contractors, seasonal workers, employees of staffing agencies and others. Employers of all sizes are covered by the Act. State and governmental agency employers and employees are excluded from coverage under the Act.
This section of the Act creates a new section 218-b to the New York Labor Law. It calls on the NYDOL Commissioner to create, in both English and Spanish, model safety standards with minimum requirements for preventing exposure to airborne infectious diseases for all work sites differentiated by industry. Such disease is defined in the Act as “[a]ny infections viral, bacterial or fungal disease that is transmissible through the air in the form of aerosol particles or droplets and is designated a highly contagious communicable disease by the commissioner of health that presents a serious risk of harm to the public health” (emphasis added). Their will be different standards between different levels of airborne infectious disease exposure and circumstances where a state of emergency has or has not been declared.
At minimum, the standards to be established by the Commissioner should include the following topics:
employee health screenings;
industry-specific personal protective equipment (“PPE”);
workplace hand hygiene stations;
regular surface cleaning and disinfection;
social distancing of employees and customers where applicable;
mandatory or precautionary orders of isolation or quarantine;
engineering controls, such as air filtration;
the role of supervisory employees to oversee compliance with safety standards;
employee notice requirements; and
verbal review of the safety standards and employer policies.
Employers may either adopt the NYDOL model standards or otherwise create their own standards whose requirements equal to or exceed the the minimum standards established by the NYDOL. If an employer creates its own plan, it must do so with meaningful input from affected employees or in consultation with the collective bargaining unit, where applicable.
Lastly, there are posting and employee handbook provision requirements applicable to all such safety standards. Employers must provide a copy of the safety plan to the employees upon reopening, after a period of closure due to an airborne infectious disease and upon hire.
Anti-Retaliation and Discrimination Provisions
Importantly, Section 1 of the HERO Act prohibits retaliation, discrimination or any taking of an adverse action against employees who:
exercise their rights under the Act;
report violations of the Act or any applicable safety standard to relevant federal, state or local authorities;
report any concerns about or seek assistance in connection with airborne infectious disease exposure to the employer or any relevant federal, state or local authorities; or
refuse to work where employees reasonably and in good faith believe that they would be exposed to unreasonable risk of exposure to an airborne infectious disease under conditions inconsistent with the safety standards.
Workplace Safety Committees
Section 2 of the HERO Act applies to any private sector employee with at least ten employees. Codified in Section 27-d of the New York Labor Law, it mandates that covered employers must allow employees to establish and administer joint labor-management workplace safety committees. These committees are to be composed of at least two-thirds non-supervisory employees also chosen by non-supervisory employees. In case of a CBA, the collective bargaining representative chooses the members of the committee. Committees representing geographically distinct worksites may also be formed, if necessary. Employers are prohibited from interfering with the selection process of committee members. Committees are authorized to perform the following functions:
raise health and safety concerns to the employer to which the employer must respond;
review any workplace safety policy put into place under the Act and provide feedback thereto;
review the adoption of any policy in the workplace;
participate in any site visit or inspection by the relevant governmental agencies;
review any report; and
schedule regular committee meetings during work hours at least once a quarter.
Section 2 prohibits any retaliation against employees participating in workplace safety committees or any actions taken pursuant to employees’ participation therein.
Enforcement and Penalties
Under Section 1, the Act has a private right of action and allows any employee to sue for injunctive relief along with costs, attorneys fee and liquidated damages up to $20,000. It further empowers the Commissioner to investigate alleged violations and impose penalties of up to $50 per day for failure to adopt a plan and between $1,000 and $10,000 for failure to follow an adopted plan. In his signing statement, Governor Cuomo called for amendments to provide for an immediate requirement to cure violations and to eliminate the private right of action to instances where employers are acting in bad faith and failing to cure deficiencies. The timing of these amendments is presently unclear.
At this point, all of us are awaiting the DOL industry-specific minimum standards to be issued in fewer than two weeks. While the substance of the standards may be similar to what we have encountered throughout the pandemic over the past year and a half, their remain many unanswered questions about the law’s application and impact. At this time, employers should review their existing protocols and also speak with their unions in preparation for the roll-out in early June. Now would also be the time to review your handbooks and prepare to amend the anti-retaliation provisions therein to conform with the language of the Act.
While Section 2 does not go into effect until later this year, employers who have 10 or more employees (and it is unclear whether it is only in-state employees) should start preparing for the establishment of workplace safety committees. To that end, time-keeping issues need to be looked at since such committee meetings cannot be treated as off-the-clock time. Lastly, as mentioned above, some amendments to the Act were promised by Governor Cuomo at the time of the Act’s signing. Those relating to employer liability and penalties as well as implementation timelines are of particular interest.
As predicted, on May 5, 2021 the Department of Labor announced the withdrawal of the Independent Contractor Rule which was made final on January 6, 2021 (“January 6 Rule”). The withdrawal became effective today (May 6, 2021) with its publication in the Federal Register.
The January 6 Rule codified the approach of giving significant weight to several factors of the “economic realities” test for determining worker classification, while giving other factors less weight. That rule was welcome news for businesses in helping to clarify independent contractor status.
The DOL bases the withdrawal on the following:
The January 6 Rule was not supported by FLSA’s text or purpose and has not been otherwise used by the courts.
The January 6 Rule did not provide the clarity it intended.
The January 6 Rule would not have benefited workers “as a whole”.
The withdrawal of the January 6 Rule is not disruptive as it had yet to take effect and has not been applied by the courts.
The DOL’s decision withdrawing the January 6 Rule gives the judges more discretion to weigh the factors of the economic realities test, and ultimately paves the way for a more aggressive rule – perhaps a federal ABC standard – which will contribute to a growing classification of more workers as “employees”.
On March 31, 2021, Governor Cuomo signed the “Marihuana Regulation and Taxation Act” (“MRTA”). Among other things, this law legalizes adult recreational use of marijuana; it amends New York’s “off duty conduct” law to protect employees from discrimination based on marijuana use in some circumstances; and it immediately or potentially expunges some marijuana-related convictions.
Here are three ways we predict this law will change HR practices in New York:
Pre-employment Drug Testing. Some New York employers may consider limiting pre-employment drug testing except when required by law or contract. With the changes enacted by MRTA, a positive cannabis test alone may no longer suffice to support a no-hire decision. As a consequence, some employers may choose to simply forgo it as a condition of employment.
Drug Policies / Discipline. Prudent employers will pause before taking any adverse action (e.g., firing, disciplining, refusing to promote, etc.) against an employee based on that employee’s known marijuana use. This is particularly true if the use is outside of work, off duty, and without using the employer’s equipment.
Under the MRTA, employers may still have and enforce lawful drug and alcohol policies to maintain drug-free workplaces. They may also fire employees for marijuana use where the law would require it, or when failing to do so would jeopardize a federal contract or funding.
However, the new law may make it more difficult for some employers to discipline employees for suspected drug use. Unlike in the case of alcohol, where a breathalyzer can instantaneously reveal alcohol use, no test exists for cannabis use. Thus, drug testing has limited value in helping employers determine the presence of on-the-job cannabis use. Rather, the employer will need to point to “articulable symptoms” of “impairment” while working that “decrease or lessen the employee’s performance of the duties or tasks” or evidence that such specific “articulable symptoms” interfere with an employer’s obligation to provide a safe and healthy workplace.
Employers also should keep in mind that employee use of medical marijuana may require reasonable accommodation under laws that protect against disability discrimination.
Criminal Conviction Records. Some employers may consider amending their arrest and conviction policies and practices.
Employers in New York already must be careful about making employment decisions based on arrests and conviction records so as not to fall afoul of criminal conviction discrimination laws, e.g., New York Correction Law Article 23-A; the New York City Fair Chance Act and its recent amendments. And, the fact that certain marijuana-related criminal convictions will now be expunged “automatically”, and others only on “request,” could create an even greater potential for missteps in this area.
Consider the following scenarios:
An applicant whose prior marijuana-related criminal conviction was automatically expunged, does not disclose this conviction. The background check report incorrectly reveals the conviction.
An applicant mistakenly believes a prior marijuana-related criminal conviction was automatically expunged, and incorrectly fails to disclose the conviction. The background check report reveals the conviction.
An applicant mistakenly believes a prior marijuana-related conviction has not been expunged and discloses it. The background check comes back clean.
What do you think your HR staff would recommend in each circumstance? Could HR revoke any of these job offers without risk?
Employers should consider revisiting their hiring and employment processes. This includes those related to pre-employment questions about drug use, drug screening, drug-free workplace policies, and criminal convictions, to ensure such policies and practices are consistent with their legal obligations.
They should educate staff involved in hiring decisions about their obligations and new policies, including how to handle scenarios like those discussed above.
Finally, they should educate managers on the signs of “articulable symptoms” to identify on-the-job drug use or impairment and ensure appropriate discipline documentation and handling of such matters.
Experienced employment counsel can help you audit your practices, educate your staff, and help you navigate these and other tricky issues in your workforce.
Listen to our own Jennie Woltz discuss leave rights, paid leave, mental health + perinatal medical diagnoses from the legal lens, breastfeeding rights, and bereavement rights with Tara Campbell Lussier, CEO & Co-Founder of Arrow, a full-service parenting support consultancy for families, employers and healthcare organizations. We are extremely grateful to be invited by Arrow to talk about these important topics.