On December 22, 2021, the New York State Department of Labor (“NYDOL”) issued long-awaited proposed rules regarding the establishment and administration of workplace safety committees under the New York State Health and Essential Rights Act (“HERO Act”).

Sidenote and a helpful timeline:

The HERO Act contains various employer obligations that were enacted to protect private sector employees in response to the COVID-19 pandemic.

May 5, 2021 – HERO Act was initially signed into law.

September 6, 2021 – the New York Commissioner of Health designated COVID-19 as a covered “highly contagious communicable disease” under the HERO Act. This triggered requirements for employers with worksites in New York to take certain actions, including, but not limited to, implementing worksite prevention exposure plans. You can find our previously reported update here.

September 23, 2021 – New York State issued an initial round of guidance regarding the HERO Act. However, the State did not provide much clarity around employer obligations related to workplace safety committees. While we have been waiting for more information, the designation of COVID-19 as a covered “highly contagious communicable disease” has been extended several times, and will be in effect until at least February 15, 2022.

November 1, 2021 – Section 2 of the HERO Act took effect, requiring employers with at least ten employees to permit personnel to “establish and administer a joint labor-management workplace safety committee.”

Ok, so what does the updated guidance mean for you? We have summarized the proposed rules below, including those regarding the establishment, composition, and administration of workplace safety committees.

Employee Threshold

The proposed rules clarify that the above ten employee threshold is based on the number of employees located in New York State. In addition to counting regular full-time employees, employers must also count part-time, newly hired, temporary, and seasonal employees, as well as any employees on leave (paid or unpaid), disciplinary suspension, or other types of temporary leave in which the employer reasonably expects the employee to return to active employment.

Establishing a Committee

While there is no affirmative requirement under the HERO Act for employers to create workplace safety committees, covered employers must allow employees to create a committee upon request. The proposed rules provide that, “committees may be established for each worksite following a written request for recognition by at least two non-supervisory employees who work at the worksite.” A “non-supervisory” employee is defined as “any employee who does not perform supervisory responsibilities, which includes but is not limited to the authority to direct and/or control the work performance of other [e]mployees.”

Boiling it down…

As of now, no action is required unless and until at least two non-supervisory employees submit a written request for a workplace safety committee to be formed.

Don’t leave them hanging

Under the proposed rules, when an employer receives a “request for recognition,” the employer must respond to the request with “reasonable promptness.” Employers must also provide notice to all employees at the worksite of the recognition of a workplace safety committee “[w]ithin five days of recognition.”

Multiple locations? You will need a committee for each

While not explicitly clear, the proposed rules seem to suggest that employers with multiple worksites in New York must permit the establishment of one workplace safety committee per worksite.

Composition of the Workplace Safety Committee

The proposed rules provide that workplace safety committees must be comprised of at least two non-supervisory employees (as defined above) and at least one employer representative. Notably, a workplace safety committee cannot exceed twelve (12) members or one-third (1/3) of the total number of employees at the worksite, whichever is fewer.

Workplace safety committees for worksites that have less than ten employees need only have three members.  Regardless of the number of committee members, there must be at least two non-supervisory employees for every employer representative.

Wait…there’s more…

Employers may not select, or in any way influence the selection of, the non-supervisory workplace safety committee members. You will have to leave it to your employees to select their representatives.

At a worksite where there is a collective bargaining agreement in place, the non-supervisory employee representatives are selected by the collective bargaining representative. For all other worksites, the non-supervisory employee members “shall be selected by and amongst the employer’s non-supervisory employees as determined by the non-supervisory employees of the employer.”

Committee Rules and Meeting Requirements

The proposed rules permit workplace safety committees to establish operating rules and procedures, provided such are consistent with law. Rules and bylaws for workplace safety committees may include procedures for the selection of new members, terms of members, and the training of new members.  If no specific rules or procedures are adopted, the committee may take action by a majority vote.

Scheduling those committee meetings

  • Workplace safety committee meetings may be conducted “at least once per quarter for not longer than two work hours in total for all meetings per quarter.”
  • The time spent during working hours must be considered as hours worked.
  • Workplace safety committees are permitted to meet for more than two hours per quarter, but such meetings must be conducted outside of work hours and will not constitute as hours worked (unless otherwise permitted by the employer).
  • Workplace safety committees may also provide official training for committee members, but the training may not exceed four hours in any calendar year. Employers must pay the workplace committee members for this training time each year.

Employer Obligations

The proposed rules provide additional employer obligations, including:

  • Responding in writing to each safety and health concern, hazard, complaint, or other violations raised by the workplace safety committee or by one of its members “within a reasonable time period.”
  • Appointing an employer representative to the committee to act as a co-chair. This employer representative may be a non-supervisory employee, an officer, or other representative.
  • Responding to a request for policies or reports that relate to the duties of the workplace safety committee “within a reasonable time period.”
  • Providing notice, where practicable and not prohibited by law, to the workplace safety committee and its members ahead of any visit at the worksite by a governmental agency enforcing safety and health standards.
  • Not interfering with the performance of the duties of the workplace safety committee or its members.

And there’s still more…

Importantly, the proposed rules state that employers are not required to disclose information or documentation to the workplace safety committee or to any committee member when such a disclosure “is prohibited by law, contains the personal identifying information of an employee as defined by Section 203-d of the Labor Law, or is outside of the scope of the information or documentation set forth in Section 27-d(4) of the Labor Law.”

Make sure you stay tuned and keep your pencils ready for edits!

On February 9, 2022, a public hearing will be held on the proposed rules. Public comments will be accepted by the NYDOL until five days after the last scheduled public hearing.

All employers with worksites in New York should stay up-to-date with any developments from the New York Department of Health and NYDOL that may trigger further revision of their worksite exposure prevention plans or any other obligations under the HERO Act.

The United States Supreme Court yesterday blocked the Biden administration‘s enforcement of a requirement that employees at large businesses be vaccinated against COVID-19 or undergo weekly testing and wear a mask.

How did we get here?

The Occupational Safety and Health Administration (“OSHA”) was gearing up to implement a vaccine-or-test requirement for staff at any company with more than 100 employees. The mandate that was set to take effect on February 9, 2022 has now been blocked by the US Supreme Court.

Why? …per the Supreme Court, OSHA overstepped their authority

The court held that the Biden administration exceeded its authority by seeking to impose the OSHA rule. “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the court ruled. More than 80 million workers would have been affected by the OSHA requirement. Three justices dissented from that opinion. The Court’s ruling still allows states and individual employers to impose vaccine mandates and testing requirements based on their specific circumstances.

So, what does this mean?

The federal government will not be enforcing or imposing mandates on companies on a national scale. States will be left to regulate local workplace safety. The Court allowed similar requirements to remain in place nationwide for medical facilities, including hospitals, nursing homes and other facilities that take Medicare or Medicaid payments.

Wait, there’s more….

The Centers for Medicare & Medicaid Services (“CMS”) had also issued a vaccination mandate, which required employees at hospitals, nursing homes or other healthcare facilities that receive federal funding to be vaccinated – with some medical or religious exemptions.

A second ruling by the Supreme Court yesterday upheld this vaccination mandate, and stated “ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm. It would be the ‘very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19.’”

The Justices concluded the CMS Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19. Four justices dissented from the Court’s second opinion.

The good news for your company’s exhausted employment team and HR office…

All of those mandates that you’ve been writing and updating, and rewriting to keep up with the whirlwind of changes around employee vaccinations are still enforceable if a private company chooses to enforce their own mandate.

The OSHA consolidated cases are National Federation of Independent Businesses, et al. v. Department of Labor, et al. and Ohio, et al. v. Department of Labor, et al. The CMS consolidated cases are Biden et al. v. Missouri, et al. and Becerra, et al. v. Louisiana, et al.

On December 22, 2021, the New York State Department of Labor (“NYDOL”) issued the final rules (the “Rules”) implementing the New York State Sick Leave Law (“NYSSLL”), which has been in effect since September 30, 2020.  In addition to providing clarity on various critical issues by promulgating the Rules, the NYDOL also responded to public comments it received after the Rules were initially proposed on December 9, 2020, which serve as further guidance for understanding employer rights and obligations under the NYSSLL.

Employee Headcount

The amount of sick leave an employer must provide to its employees is based upon employee headcount and net income. Both the statutory language of NYSSLL and the Rules are silent as to whether employee headcount is based upon the total amount of employees or the amount of employees just working in New York State. In response to public comments regarding this ambiguity, the NYDOL stated that it “interprets the statute to include all of the employer’s employees nationwide [in the headcount],” but only employees working in New York must be provided sick leave under the NYSSLL.

Advanced Notice Requirement

Significantly, the NYSSLL and Rules are silent as to whether an employer can require employees to provide a specific amount of advance notice prior to using foreseeable sick leave (i.e., attending a previously scheduled doctor’s appointment). In responding to public comments, the NYDOL rejected suggestions to allow employers to require advance notice for foreseeable events because it would be “difficult to create separate categories governing and classifying foreseeability[.]”  Therefore, employers may not impose an advance notice requirement. Instead, an employee must only make a verbal or written request to use sick leave prior to using such leave.

Requiring Documentation to Support Use of Sick Leave

The Rules clarify that employers may require employees who use sick leave for three (3) or more consecutive work days to submit documentation to support the use of such leave. Employees who take less than three (3) consecutive days of sick leave may not be asked to provide documentation to support the leave.

Employers may request the following types of documentation: (1) “an attestation from a licensed medical provider supporting the existence of a need for sick leave, the amount of leave needed, and a date that the employee may return to work” or (2) “an attestation from an employee of their eligibility to leave.” The NYDOL announced that it will publish a template for employee attestations. Notably, the NYDOL stated that an employer cannot deny an employee the right to use sick leave while attempting to confirm the basis for the leave.

The documentation may not require the disclosure of “confidential information” relating to the covered reason for taking sick leave. While the law is silent as to the definition of “confidential information,” the Rules define the term as “individually identifiable health or mental health information, including but not limited to, diagnosis and treatment records” and any other “information that is treated as confidential or for which disclosure is prohibited under another applicable law, rule, or regulation.”

The Rules provide that employers cannot require employees to bear the costs associated with obtaining any required documentation. In responding to public comments, the NYDOL made it explicitly clear that this means employers cannot deny the use of sick leave when employees are unable to obtain such documentation due to cost.

Employers subject to the New York City Earned Safe and Sick Time Act should take note that documentation may only be requested from employees who are absent for more than three (3) consecutive work days under the City’s law.

Accrual Increments

Unless an employer chooses to frontload the full amount of sick leave to employees at the beginning of each year, employees are required to accrue one (1) hour of sick leave for every (30) hours worked. The Rules require that accrual must account for all time worked and to calculate accrual, “employers may round accrued leave to the nearest 5 minutes, or the nearest one-tenth or quarter of an hour.” Therefore, sick leave must be accrued on a fractional basis.

Carryover of Unused Leave

According to the NYSSLL, employers are required to allow employees to carry over any accrued but unused sick leave into the next year. The NYDOL responded to various public comments regarding whether this requirement still applies to employers that frontload the maximum amount of sick leave to employees at the beginning of each year. The NYDOL confirmed that the carry over requirement still applies to employers that frontload sick leave, but all employers may (but are not required to) give employees the option to voluntarily elect to receive payment for any unused sick leave at the end of the year as an alternative to carrying over that time into the next year.

Notably, regardless of whether an employee carries over unused time into the next year, the NYSSLL explicitly states that employers are permitted to cap sick leave use in a single year to forty (40) hours or fifty-six (56) hours, depending on employer size.

In conclusion, employers should review their sick leave policies and speak with counsel to ensure compliance with the Rules and guidance from the NYDOL. Employers should also continue to stay up-to-date with any further guidance issued by the State regarding the NYSSLL.

On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit issued an Order that dissolved the stay issued by the U.S. Court of Appeals for the Fifth Circuit on the Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard (“ETS”).  As we previously reported, the ETS requires all employers with a total of 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy or choose to subject unvaccinated employees to weekly COVID-19 testing and indoor masking requirements.

Shortly after the Sixth Circuit entered the Order, OSHA announced that it will begin to implement the ETS and “[t]o account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”  Therefore, until any further court order, covered employers now have until January 10, 2022 to comply with all provisions of the ETS, except for the weekly testing requirements that will not be enforced until February 9, 2022.

As we previously reported, OSHA released the ETS on November 5, 2021 and the Fifth Circuit issued an order one day later staying the ETS pending expedited judicial review.  Subsequently, on November 12, 2021, the Fifth Circuit affirmed its original November 6, 2021 order, which left the emergency stay in place pending further review of the petitioners’ underlying motions for a permanent injunction.  Within the November 12, 2021 Order, the Fifth Circuit set forth multiple reasons why the ETS was likely to be struck down.  In response to the Fifth Circuit’s decision, OSHA announced that it would not take steps to implement or enforce the ETS until further court order permitting OSHA to do so.

Due to the filing of multiple legal challenges to the ETS across the country, on November 16, 2021, the U.S. Judicial Panel on Multidistrict Litigation selected the Sixth Circuit via a lottery system to ultimately decide whether to continue, modify, or lift the Fifth Circuit’s stay.  In a 2-1 decision, the Sixth Circuit’s Order dissolved the Fifth Circuit’s stay and made the following significant conclusions:

  • Finding that OSHA has emergency standard statutory authority to implement nationwide vaccine or testing requirements.
  • Finding that adequate evidence, such as the spread of the Delta variant and the FDA approval of several COVID-19 vaccines, supports that the ETS addresses a “true emergency” and that OSHA enacted the ETS in a reasonable manner.
  • Finding that OSHA does not need to demonstrate potential COVID-19 exposure in all workplaces to prove that COVID-19 is a “grave danger” and, can instead, rely upon public health data regarding the negative effect COVID-19 has on workers and the public at large to prove that COVID-19 is a “grave danger” to all workplaces.
  • Rejecting the notion that the ETS violates the U.S. Constitution and that such vaccine or testing requirements can only be implemented through state law.
  • Finding that the petitioners could not show the requisite irreparable harm for the stay because the ETS allows employers to adopt a weekly testing option for all workers who do not want to get vaccinated.
  • Finding that delaying the implementation of the ETS places workers and the public at large at further risk by failing to fight against the spread of COVID-19 throughout the country.

To date, several petitioners have already filed emergency applications with the U.S. Supreme Court to stay the Sixth Circuit’s Order and to reinstate the Fifth Circuit’s stay until full judicial review of the case can be completed by the U.S. Supreme Court.

As always, employers should continue to stay up-to-date with any new legal developments.  Employers with 100 or more employees should speak with employment counsel to prepare to comply with the ETS.  Additionally, New York City employers should also speak with counsel regarding the interplay between the ETS and the newly enacted New York City COVID-19 vaccine mandate, which goes into effect on December 27, 2021, that we recently blogged about here.

On December 15, 2021, New York City issued guidance regarding the private employer COVID-19 vaccine mandate that will become effective on December 27, 2021 (the “Guidance”). As we previously reported, Mayor Bill de Blasio enacted a mandate that requires workers in New York City who go to work in-person or interact with the public to show proof that they have received at least one (1) dose of a COVID-19 vaccine by December 27, 2021. Any partially vaccinated workers then have forty-five (45) days to submit proof of full vaccination.

The Guidance includes the following: (1) the December 13, 2021 Order from the Commissioner of the New York City Department of Health and Mental Hygiene (the “Order”); (2) a set of Frequently Asked Questions (“FAQs”); (3) guidance and checklists on providing medical and religious accommodations to workers; and (4) anti-discrimination and anti-retaliation guidance on implementing the mandate.

Covered Entities

All businesses that employ one (1) or more workers in New York City or that maintain a workplace in New York City are required to comply with the vaccine mandate. The mandate also applies to self-employed individuals and sole practitioners who work at a workplace or interact with workers or the public in connection with their business.

As set forth in the Order, the mandate does not apply to “covered entities or individuals who are already subject to another Order of the Commissioner of the Department, Board of Health, the Mayor, or a State or federal entity that is in effect and requires them to maintain or provide proof of full vaccination[.]” Significantly, this means that businesses covered by the Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard, which as we previously reported is currently stayed, must comply with the City’s mandate.

Covered Workers

The vaccine mandate applies to all “workers” who work in-person in New York City at a “workplace,” which is defined by the Order as “any location, including a vehicle, where work is performed in the presence of another worker or member of the public.” The Order states that “workers” include all types of employees, volunteers, interns, independent contractors, self-employed individuals, and sole practitioners, with the following four (4) exceptions:

  1. Individuals who work from home and whose employment does not involve interacting in-person with co-workers or members of the public;
  2. Individuals who enter the workplace for a quick and limited purpose. While no definition of a “quick and limited purpose” is provided, the FAQs state that examples include using the bathroom, clocking-in and receiving an assignment before leaving to begin a solitary assignment, and making a delivery;
  3. Non-New York City residents who are performing artists, athletes, or individuals accompanying such performing artists or athletes who do not have to display proof of vaccination pursuant to the Key to NYC Program; and
  4. Individuals who have been granted a reasonable accommodation from the vaccine mandate for medical or religious reasons.

Recordkeeping Requirements

Employers must abide by one (1) of the following recordkeeping requirements:

  1. Maintain a copy of each worker’s proof of vaccination or reasonable accommodation documentation;
  2. Maintain a paper or electronic record that includes the following for each worker: (1) the worker’s name; (2) whether the worker is fully vaccinated; (3) for a worker who submits proof of receiving the first dose of a two-dose COVID-19 vaccine, the date by which proof of the second dose must be provided (which as noted above is no later than forty- five (45) days after proof of the first dose was provided); and (4) for a worker who is granted a reasonable accommodation from the vaccine mandate for medical or religious purposes, information regarding: (i) when the accommodation was granted; (ii) the basis for doing so; and (iii) any supporting documents provided by the worker for the reasonable accommodation; or
  3. Check proof of vaccination before allowing a worker to enter the workplace and maintain a record of the verification.

For independent contractors, an employer may request that the independent contractor’s employer confirm proof of vaccination in lieu of maintaining the above records. If an employer chooses to use this option, a record of the request and confirmation from the independent contractor’s employer must be maintained.

The Guidance states that acceptable forms of proof of vaccination include any one of the following:

  • New York State Excelsior Pass/Excelsior Pass Plus;
  • A photo or hard copy of the worker’s CDC vaccination card;
  • A New York City COVID-19 Safe App record;
  • A CLEAR Health Pass;
  • A photo or hard copy of an official vaccination record of a COVID-19 vaccine administered outside of the United States for the following vaccines: AstraZeneca/SK Bioscience, Serum Institute of India/COVISHIELD and Vaxzevria, Sinopharm, or Sinovac; or
  • Other official immunization record.

Overall, all of the above vaccination information must be stored in a confidential and secure manner as required by law. The Guidance provides that this information should only be available to employees or other individuals who “have a legitimate need to access such information for purposes of compliance with this [O]rder, or other governmental orders, laws, or regulations.” According to the Guidance, covered entities must be prepared to make their records available for inspection.

Affirmation and Posting Requirements

By December 27, 2021, covered employers must complete the Affirmation of Compliance with Workplace Vaccination Requirements. This completed affirmation must be posted in a conspicuous location.

Reasonable Accommodations

Covered employers are required to consider reasonable accommodation requests from workers who cannot get vaccinated due to a sincerely held religious belief or a medical condition. These workers must apply for such accommodations by December 27, 2021 and may be permitted to continue coming into the workplace while their reasonable accommodation request is pending.  The Guidance is clear that personal, social, and political beliefs are not legitimate reasons to receive an exemption from the vaccination requirement.

Additionally, exemptions from the requirement to provide proof of vaccination must be made for workers who cannot provide such proof due to their status as a victim of domestic violence, sex offense(s), or stalking.

As noted above, the Guidance contains information regarding the accommodation process and checklists that employers may use to evaluate an exemption or accommodation request. All employers that use the checklists in connection with the accommodation process should maintain copies of the completed checklists for recordkeeping purposes. At the conclusion of the interactive dialogue process, employers must notify the worker in writing about the employer’s decision regarding the accommodation request.

The Guidance also contains the following examples of accommodations, which are not exhaustive, that an employer could institute for a worker that cannot comply with the vaccination requirement for medical or religious reasons:

  • Weekly PCR testing for COVID-19 and wearing a mask at all times when not eating or drinking;
  • Remote work;
  • Change of work station or work schedule to avoid close contact with coworkers or customers; and/or
  • Leave of absence, which can be unpaid unless the employer pays other workers who are unable to work for similar reasons.

Significantly, the Guidance states that employers do not have to grant accommodations that: (1) would cause a direct threat to other employees, customers, or to the worker requesting the accommodation or (2) would impose an undue hardship on the employer’s business.

The Guidance states that employers are prohibited from retaliating against employees due to their request for an accommodation. As described by the Guidance, employers should also ensure that their policies and practices regarding the vaccination mandate do not treat employees differently because of any protected characteristic.

Conclusion

Employers should review the Guidance immediately and speak with counsel to ensure compliance with the above requirements. The Guidance states that businesses that refuse to comply are subject to a fine of $1,000 and “escalating penalties thereafter if violations persist.”

The mandate is likely to be challenged in court, but the legal basis supporting the mandate is fundamentally different than the legal foundation underlying the federal vaccine mandates that have been stayed by the courts in the recent weeks. Therefore, the outcome of any legal challenge to the mandate is uncertain.

Notably, it is also unclear whether Mayor-Elect Eric Adams, who takes office on January 1, 2022, will keep the vaccine mandate in place. Mayor-Elect Adams stated that whether the mandate will remain in place is “about the science” and that he will have his team review the data once in office.