Author: Scott Horton

Scott has been practicing Labor & Employment law in New York for almost 20 years. He has represented over 400 employers and authored 100s of articles and presentations and wrote the book New York Management Law: The Practical Guide to Employment Law for Business Owners and Managers. Nothing on this blog can be considered legal advice. If you want legal advice, you need to retain an attorney.

NY HERO Act Amendments

NY HERO Act Amendments Reduce Employer Burdens

When Governor Cuomo originally signed the New York HERO Act into law, he indicated he expected the Legislature to make changes before the effective date to address concerns from the business community. On June 11, 2021, he approved the anticipated NY HERO Act amendments. While still creating new employee rights and employer obligations, the amendments provide some relief from originally overbroad legislation.

(Click here for a detailed analysis of the original legislation.)

We’ll look at the changes to the two distinct subjects of the NY HERO Act in turn.

Airborne Infectious Disease Exposure Prevention Plans

The NY HERO Act amendments include clarifications regarding the airborne infectious disease exposure prevention plans that employers must adopt.

Covered “Work Sites”

As amended, the law will take a more narrow view of what constitutes a “work site” where companies must police safety measures during a disease outbreak. The previous definition–“any physical space, including a vehicle, that has been designated as the location where work is performed”–is now limited by the phrase “over which an employer has the ability to exercise control.”

There is also a new (redundant?) proviso that “[t]he term shall not include a telecommuting or telework site unless the employer has the ability to exercise control of such site.”

Model Plans

The original legislation required the NYS Departments of Labor and Health to create model airborne infectious disease exposure prevention standards by industry. Some new wording expands on that requirement. It indicates that different standards may exist among “industries representing a significant portion of the workforce, or those with unique characteristics requiring distinct standards. . . .” The amendments also require “a general model airborne infectious disease exposure prevention standard applicable to all worksites not included in the specific industry standards.”

Implementation

The amendments expressly address important timing issues. The model standards are due by July 5, 2021, from the State. But employers will not have to implement them immediately. Instead, they will have 30 days after the applicable standard is available.

Once a company adopts the model plan (or its own version), it will have 30 days to provide a copy to every employee. Employers must also provide the plan to new hires at the beginning of employment.

Litigation and Penalties

The NY HERO Act amendments reduce the potential penalties for violations of the airborne infectious disease exposure prevention requirements. They also now require employees to give their employer notice of potential violations before commencing a lawsuit. In most cases, the employer will have 30 days to cure the alleged deficiency.

Workplace Safety Committees

The second component of the NY HERO Act gives employees a new right to form workplace safety committees that employers must recognize.  The amendments prevent a broad interpretation that may have enabled workplace safety committees to control issues beyond health and safety.

Authorized Role

In addition to workplace health and safety tasks, the original NY HERO Act legislation would have permitted workplace safety committees to review any policy required by the New York Labor Law or Workers’ Compensation Law, without regard for whether the policy had anything to do with health or safety. This provision seemingly would have included vacation policies, sexual harassment policies, and paid family leave policies, among others. However, as amended, the law now limits the review to policies “relating to occupational safety and health.” It still remains to be seen, however, what that phrase will mean to the Department of Labor.

Multiple Worksites

In one respect the amendments potentially add more confusion than they do clarification. New language says that employers need only permit one workplace safety committee per worksite. This addition suggests that there may be multiple committees spread across worksites. Yet, “worksite” is not defined for this portion of the NY HERO Act. The definition in the airborne infectious disease exposure prevention section of the law doesn’t technically apply to the workplace safety committee section. And that definition probably wouldn’t be very helpful anyway. It suggests, for example, that each vehicle owned or controlled by the employer is a “work site.”

Quarterly Meetings

The law provides that workplace safety committees may meet at least once per quarter during work hours, presumably meaning with pay. In an apparent attempt to prevent abuses, the amendments say that the meetings “shall last no longer than two hours.”

The question remains, are the committees, therefore, only permitted to meet for two hours per quarter? Or multiple times per quarter, as long as no meetings last more than two hours?

Training

There’s also a new time limit on required training. The original legislation provided that committee “designees” could attend training “on the function of worker safety committees, rights established under this section, and an introduction to occupational safety and health” “without suffering a loss of pay.” The NY HERO Act amendments limit the training to four hours.

Many Unanswered Questions

Employers still can’t do much to begin complying with the NY HERO Act until the State issues model standards and additional regulatory guidance. But they must be prepared to act quickly when more information becomes available. The airborne infectious disease exposure prevention plan may need to be in place by early August. And employees can start workplace safety committees beginning November 1, 2021.

 

We’ll be presenting a complimentary webinar once the model airborne infectious disease exposure prevention standards are available. Register for our email newsletter to receive the webinar announcement and other updates regarding the New York HERO Act.

Mandatory Employee Vaccination

Mandatory Employee Vaccination? EEOC Updates Workplace Guidance

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance for employers considering a mandatory employee vaccination requirement. The short answer? Your company probably can insist that most employees get vaccinated. But there may be limits and related compliance risks.

You Can Require On-Site Employees to Get the Shot

The new EEOC guidelines advise employers that they can, if they wish, require that their on-site workers be vaccinated against COVID-19 before returning to work.

If you decide to require your employees to get the vaccine, you will still need to keep a few things in mind.

First, the EEOC says that employers can only mandate vaccines for employees physically present at a worksite. If you still have staff working from home, and they don’t need to set foot in the office or other work location any time soon, then you shouldn’t require those workers to get the vaccine.

Second, the EEOC stresses that any vaccine mandate must comply with the ADA and Title VII. If you have an employee who wants to return to work but cannot receive the vaccine for health reasons or based on a sincerely held religious belief, you must consider reasonable accommodations for that person. For example, you may require that the unvaccinated employee wear a face mask or work physically distanced from other employees or customers. As is always the case, a worker requesting an accommodation doesn’t have to receive the exact one they want. The employer need only make an effective accommodation under the circumstances, if there is one that doesn’t create an undue hardship.

Be Cautious In Obtaining Medical Information

The EEOC says that asking for proof of vaccination is not a restricted disability-related inquiry under the ADA. But, remember, you must keep employee health information, including information on whether an employee has received the vaccination, confidential.

And you can’t require, or even incentivize, an employee to ensure that members of their family be vaccinated. By seeking proof of family member vaccination, you would be inquiring into an employee’s family health information. The Genetic Information Nondiscrimination Act (GINA) prohibits such inquiries for covered employers. The law allows some exceptions to this if your business administers vaccines to the general public and an employee’s family member chooses to get one from you. But for most companies, collecting any health information on the family members of its employees would violate GINA.

Incentives Are Fine (As Long As They Aren’t Coercive)

As far as the EEOC is concerned, you can offer all sorts of incentives to your employees to get the vaccine. Examples may include cash bonuses, gift cards, or various other prizes. (Note: There may be tax implications!) The EEOC also says that incentives can include penalties, although fewer companies are using this option.

Stay Tuned

Because everything having to do with COVID-19 has moved so quickly, expect further developments on mandatory employee vaccination issues. Remember that the EEOC only oversees specific federal discrimination laws. Other sources of law may have different implications. Individual states may interpret/apply existing laws differently or pass new restrictions surrounding this subject. But for now, the EEOC continues to endorse the view that as long as you follow the standard ADA, Title VII, and GINA rules, your company can do what it finds appropriate for the health of your workers and the safety of your business regarding COVID-19 vaccines. Just make sure you work with experienced employment counsel in implementing any vaccination requirements!

 

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Gwynne Wilcox

Biden Nominates Gwynne Wilcox To Fill NLRB Seat

On May 26, 2021, President Joe Biden nominated attorney Gwynne Wilcox to fill an open seat on the National Labor Relations Board. Wilcox is currently a partner with Levy Ratner, a New York City law firm. If confirmed, Wilcox would become the second Democrat on the five-member Board.

Current NLRB Composition

President Biden inherited an NLRB with four sitting members and one vacancy. Upon taking office, he immediately appointed Board Member Lauren McFerran, a Democrat, to Chair the Board. Despite losing the chair position, three Republicans retain the voting majority on the Board: former-Chair John Ring, Marvin Kaplan, and Bill Emanuel.

Wilcox would fill the seat formerly held by Mark Pearce. It is has been vacant since August 2018.

Impact of Gwynne Wilcox Joining the NLRB

Even if the Senate confirms Wilcox in the foreseeable future, her presence will not overcome the Republican majority. As with Republican Board members historically, the current majority tends to issue less restrictive rulings for employers. Conversely, Democratic members are increasingly pro-union and pro-employee in their decisions.

In the short term, Wilcox would join Chair McFerran in the Democratic minority. However, their influence would be expected to increase significantly later this year. Member Emanuel’s term ends in August 2021. President Biden will assuredly nominate a pro-labor Democrat to replace him.

Once the next two NLRB nominees are approved, the Democrats will retain the ability to dictate more labor-friendly interpretations of the National Labor Relations Act. Employers should expect stricter regulation and more aggressive prosecution of workplace practices and policies, as last seen under the Obama Administration. And unions will find a more receptive agency in connection with organizing efforts. The pendulum has already started to shift under Biden’s acting NLRB General Counsel. Democrats in Washington are also hoping to make monumental legislative changes in this area through the PRO Act.

More About Gwynne Wilcox

Gwynne Wilcox received her Bachelor’s Degree from Syracuse University and her law degree from Rutgers University School of Law.  She represents unions and employees in labor matters. A fellow of the College of Labor and Employment Lawyers, Wilcox also serves as Associate General Counsel of 1199SEIU United Healthcare Workers East. She has prior experience with the NLRB as a field attorney for the agency in New York City.

 

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