On October 19, 2021, NY Department of Labor issued guidance concerning New York’s “lawful off duty conduct law,” Section 201-D of New York Labor Law, in light of NY’s recent legalization of marijuana under the Marijuana Regulation and Taxation Act (“MRTA”). 

Generally, Section 201-D limits employers’ ability to take adverse action against employees who engage in certain statutorily defined “protected” activities, such as engagement in political speech, outside of the workplace. Among other things, the MRTA amended Section 201-D to include the legal use of cannibals and other lawful consumable products as protected activity under Section 201-D.  In other words, NY employers are now prohibited from discriminating against employees based on the employee’s use of legal cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property.  In contrast, the illegal use, sale, or transportation of cannabis is not protected by Section 201-D of the Labor Law.

However, Subsection 4-a of the law says that employees may still take adverse action against employees based on an employee’s use of cannabis where: 

• employer’s actions are otherwise required by state or federal law, 
• the employee is impaired by the use of cannabis, or 
• employer’s actions would result in the loss of a federal contract or federal funding.

The DOL’s guidance answers key several questions about how the MRTA’s amendments to Section 201D will impact the workplace, and what steps employers can take to discipline employees found to engage in marijuana use.  The guidance specifically does not address the issues relating to medical use of cannabis.  

Key Takeaways

• An employer can take action against an employee if the employee is “impaired” by cannabis while working, meaning the employee manifests specific articulable symptoms of impairment that (1) decrease or lessen the performance of such employee, or (2) interfere with an employer’s obligation to provide a safe worksite as provided in occupational health and safety laws.

• Articulable symptoms are defined as observable indications that the employee’s performance of duties is lessened or decreased.  However, observable signs of use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment.  Thus, simply detecting cannabis odor standing alone is an insufficient predicate for disciplinary action.

• Employers can prohibit cannabis use at the workplace (or in a company vehicle) during work hours or on-call hours, including meal and break times, even where an employee otherwise leaves the worksite during “work hours”.

• But, an employer cannot prohibit remote employees from using cannabis while working from home since the DOL does not consider a private residence as a “worksite”.  However, an employee exhibiting the above-defined articulable symptoms of impairment can be disciplined.  

• Section 201-D does not apply to remote employees working out-of-state.

• Employers cannot prohibit the use of cannabis outside of the workplace absent the limitations of Subsection 4-a discussed above.  Similarly, employers cannot ask their employees to waive the protections of Section 201-D nor keep the existing cannabis use prohibitions in place.

• Lastly, employers cannot test their employees for cannabis use unless otherwise authorized to do so under Subsection 4-a or other applicable laws, e.g., mandatory testing for drivers of commercial motor vehicles under 49 CFR Part 382.

Next Steps

• Employers should review and amend discipline policies which discipline employees who use legal cannabis recreationally outside of work hours, absent separate state or federal authority to do so.
• Employers should review their existing workplace policies such as drug-free workplace policies, attire and grooming standards, and safety policies, among others, to reflect the protections for recreational cannabis use pursuant to Section 201-D. 
• Employers should train managers and HR staff on recognizing, reporting, and documenting articulable symptoms of impairment and remember that cannabis odor alone is not a sufficient basis for discipline. Further, employers should be aware that the defined articulable signs of impairment due to cannabis use may also be an indication that an employee has a disability protected by federal and state law, which could give rise to a duty to engage in an interactive dialogue and potentially offer reasonable accommodations. 
• Lastly, the guidance specifically did not address medicinal cannabis use. Employers who are considering taking adverse action against an employee in connection with his or her use of medicinal cannabis use, or need guidance on offering accommodations to medical cannabis users,should consult with an employment attorney.

As always, Woltz & Folkinshteyn, P.C. welcomes your questions about this and any other employment concerns that you may have.

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 preliminary injunction 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.

Happy Birthday to Woltz & Folkinshteyn, P.C. We would like to thank all of our clients, followers and families for their support during our first year. We could not have done it without you!

Check out this article about us in the October issue of The New Jewish Voice.

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.

Anti-Retaliation Reminder

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.

On August 11, 2021, our own Jennie Woltz had a great time time speaking with Jordana Rothschild MD, MPH, FACPM from Alpine Health and Dr. Juenara Washington from OneWall Communities about stress and the legal, employee relations as well as health risks in the work environment as employees go back to the office in person. For those of you who missed this productive conversation, feel free to reach to any of the participants. Dr. Rothschild, MD can be reached at wellness@alpinehealthmd.com. Dr. Washington can be reached at jwashington@owcommunities.com.

An audio only version of the webinar is available here.

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.