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.

1. 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.

2. 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.

3. 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.

4. 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 prohibits employers 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.

5. 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.

6. 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;
• face coverings;
• 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.

Next Steps

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.

In recent weeks, a bi-partisan group of NY legislators have been hammering the beleaguered Governor Andrew Cuomo’s failure to truthfully report the number of NY nursing home COVID-related deaths. On February 17, 2021, to assert legislative oversight over New York’s pandemic response, a proposed bill No. S04888 was introduced in the NY State Senate which seeks to revoke the extension of emergency powers granted to Cuomo related to the outbreak of COVID-19 early last year.

In general, the proposal reverses the temporary amendments to Executive Law 29-a passed previously by the state legislature at the start of the pandemic, removing Governor Cuomo’s authority to “issue any directive during a [declared] state disaster emergency” which may be necessary “to assist or aid in coping with such disaster.” We will continue to monitor this recent development and how it affects the various COVID-19 executive orders, including quarantine rules, business capacity frameworks, and other employment-related pronouncements.

The new year has already brought new compliance challenges to New York employers. Another one may be looming on the horizon. On January 6, 2021 a bi-partisan group of NY state legislators introduced A.B. 27, the Biometric Privacy Act. It is a virtual copy of the Illinois’ Biometric Information Privacy Act of 2008 (“BIPA”). Over the past dozen years since BIPA’s passage, Illinois has seen a slew of consumer and employee class actions alleging improper collection of biometric information by companies and employers. New York could be the next hot spot for these kinds of class action lawsuits. 

Statutory Prohibitions

The proposed statutory language defines biometric information and biometric identifiers broadly and includes retina or iris scans, fingerprints, voiceprints and facials scans. The language specifically excludes from the definition of biometric information writing samples, written signatures, photographs as well as certain patient information collected in a medical setting, etc.

The law would prohibit private entities from collecting, capturing, purchasing or receiving a person’s or customer’s biometric identifier or biometric information (as defined in the proposed act) absent informed consent about purpose, duration and type of information collected. It would also mandate the creation of written policies which are available to the public about the collecting company’s retention schedules and destruction guidelines.

The proposed act further prohibits the sale, leasing or trading or profiting from a person’s or customers biometric identifier or biometric information. It would also prohibit disclosure or re-disclosure of same absent consent or obligation to disclose under state, federal or municipalities and a few other exceptions. Lastly, it provides for a private right of action like its Illinois predecessor. The two other states that have enacted biometric privacy laws, Texas and Washington, provide for enforcement only by the respective states’ attorneys general.

Implications for Employers

    As is the case under BIPA, the proposed New York law would require employers to obtain a written release from the employee as a condition of employment prior to collecting biometric information (e.g., fingerprints) from employees for various employment-related purposes, be it time-keeping, security access or benefits/training tracking.

    While the passage of New York’s Biometric Privacy Act is not guaranteed as NY legislators have proposed biometric privacy legislation several times since 2018, employers should remain vigilant about this development and consider engaging in several proactive steps to be ahead of the curve should this proposal become law:

• Employers should review their biometric collection capabilities, policies, and vulnerabilities with their Operations and IT departments, to better understand where, how, and of whom, biometric data is collected in the workplace.
• Be prepared to update cyber security policies and practices with this newfound information. 
• Work with Human Resources to become prepared to implement written releases for employees (current, and newly hired), if and when the proposed act becomes law.