Category: New York

May 6, 2021

New York HERO Act Goes Far Beyond COVID

On May 5, 2021, New York Governor Andrew Cuomo signed new State laws regulating workplace safety, known as (though not formally entitled) the Health and Essential Rights (HERO) Act. The HERO Act requires employers to implement safety plans and permits employees to form workplace safety committees. The Act only applies to private (i.e., non-government) businesses and organizations.

In approving this legislation, Governor Cuomo issued a memorandum indicating that “technical” amendments will be forthcoming. This wrinkle complicates forecasting when the new requirements will ultimately take effect.

Airborne Infectious Disease Exposure Prevention

A new section 218-b of the New York Labor Law will impose new requirements regarding “prevention of occupational exposure to an airborne infectious disease.”

Airborne Infectious Disease

This term is defined to mean “any infectious 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.”

Covered Employees

The HERO Act is unusually expansive in its definition of “employee”. The term broadly includes “any person providing labor or services for remuneration for a private entity or business within the state.” Beyond workers with a direct employment relationship, it expressly includes:

independent contractors;
individuals working for staffing agencies, contractors, or subcontractors on behalf of the employer at any individual work site; and
any individual delivering goods or transporting people at, to, or from the worksite on behalf of the employer.

Worksites

Likewise, the term “worksite” is relatively broad in scope. It is defined as “any physical space, including a vehicle, that has been designated as the location where work is performed”. This definition includes employer-provided housing and transportation, but does not include an employee’s residence (unless provided by the employer).

Supervisors

The HERO Act defines supervisors as “any person who has the authority to direct and control the work performance of other employees, or who has the managerial authority to take corrective action regarding the violation of the law, rules or regulations.” Any employee who is a member of a bargaining unit that primarily represents non-supervisory employees does not qualify as a supervisor under the Act.

Forthcoming Standards

The law requires the New York Department of Labor to publish industry-specific model airborne infectious disease exposure prevention standards. These will establish minimum requirements that employers must meet.

In addition to whatever else the DOL, in consultation with the NYS Department of Health, mandates, the standards must address:

Employee health screenings.
Face coverings.
Personal protective equipment (PPE) for eyes, face, head, and extremities.
Protective clothing.
Respiratory devices.
Protective shields and barriers.
Accessible workplace hand hygiene stations.
Regular cleaning and disinfecting of shared equipment and frequently touched surfaces and all surfaces and washable items in other high-risk areas.
Social distancing for employees, consumers, and customers.
Compliance isolation and quarantine orders.
Engineering controls, such as airflow and exhaust ventilation.
Designation of a supervisory employee to enforce compliance. (“Non-supervisory line employees shall not bear responsibility for overseeing compliance with the requirements of the model policy.”)
Compliance with applicable laws or guidance on notification of potential exposure to airborne infections disease at the worksite.
Verbal review of the infectious disease standard, employer policies, and employee rights under the HERO Act with employees.
Anti-retaliation protections.

Once the model airborne infectious disease exposure plans are available from the State, employers must either adopt the applicable model plan or establish an alternative plan that meets or exceeds the minimum standards included in the model standards.

In unionized companies, the employer may only adopt an alternative to the model plan if the union agrees. Moreover, even where there is no union representing employees, the employer can only implement an alternative plan “with meaningful participation of employees.”

Once adopted, employers must provide their plans in writing to all employees. The plan must also be posted “in a visible and prominent location within the worksite.” If the employer has an employee handbook, it must also include the plan there.

Retaliation Prohibitions

The HERO Act prohibits employers and their agents from taking adverse action against an employee for:

Exercising their rights under the law or applicable infectious disease exposure prevention plan.
Reporting violations of the law or plan.
Reporting an airborne infectious disease exposure concern.
Refusing to work based on a good faith belief of an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with laws or other government orders, despite notice to the employer of the inconstant working conditions that the employer failed to address.

Penalties for Violations

The DOH may assess a civil fine upon any entity or person who violates the HERO Act. The penalty is at least $50 per day for not adopting an airborne infectious disease exposure plan and between $1,000 and $10,000 for failure to abide by an adopted plan. These penalties rise to at least $200 per day and $1,000-$20,000, respectively, for repeat violations.

In addition, any employee may sue an employer for any violation of an airborne infectious disease exposure plan that allegedly “creates a substantial probability that death or serious physical harm could result”. Employees may receive “all appropriate relief,” including reimbursement of attorneys’ fees and liquidated damages of up to $20,000.

In his approval memorandum, Governor Cuomo cautioned that amendments to the enforcement procedures are necessary. He wants to “limit lengthy court litigation to those private rights of action, in limited circumstances where employers are acting in bad faith and failing to cure deficiencies.”

Workplace Safety Committees

In addition to the airborne infectious disease plan requirements, a new section 27-d of the NY Labor Law permits employees to organize workplace safety committees that employers (with at least 10 employees) must recognize and deal with to address any safety and health issues. These issues are by no means limited to airborne infectious disease prevention.

Note that the workplace safety committee provisions are in a separate statutory section from the airborne infectious disease exposure plan requirements. As a result, some terms are defined differently between the two components. For example, independent contractors do not appear to be “employees” who qualify to be committee members.

Committee Structure

The law requires that these workplace safety committees must include both employer and employee representatives. At least two-thirds of the members must be non-supervisory employees. One “employee” representative and one “employer” representative must co-chair the committee.

More than one committee may exist to represent “geographically distinct work-sites.”

Committee Activities

Workplace safety committees may do all of the following:

Raise health and safety concerns, hazards, complaints, and violations to which the employer must respond.
Review any policy put in place in the workplace required by the NY Labor Law or the Workers’ Compensation Law and provide feedback to such policy.
Review the adoption of any policy in the workplace in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directive.
Participate in any site visit by any governmental entity responsible for enforcing safety and health standards.
Review any report filed by the employer related to the health and safety of the workplace.
Regularly schedule a meeting during work hours at least once a quarter.

In addition to paid quarterly meetings, employers must allow “safety committee designees” to attend a training on “the function of workers safety committees, rights established under [§ 27-d], and an introduction to occupational safety and health,” “without a loss of pay.”

Employers may not retaliate against employees for their participation in the activities of a workplace safety commission.

Collective Bargaining Waiver

Companies with unionized employees may negotiate out of the workplace safety committee requirements in their collective bargaining agreements. However, any such waiver must specifically reference NY Labor Law § 27-d.

When Must Companies Act?

No aspect of the HERO Act took effect immediately.

The airborne infectious disease exposure plan requirements could take effect in as little as 30 days, which would be June 4, 2021. However, employers won’t have to adopt these plans until the Department of Labor sets the minimum standards and issues the industry-specific models.

The workplace safety commission provisions are not scheduled to take effect for six months, on November 1, 2021.

Either of these effective dates could change based on the statutory amendments Governor Cuomo requested.

For now, New York businesses are already subject to COVID-19 safety requirements along the lines of what the HERO Act will require to be addressed in permanent airborne infectious disease safety plans. This new law primarily mandates that employers remain prepared to avoid and/or deal with future pandemics.

The more dramatic impact of the HERO Act will likely be the creation of workplace safety committees. This development essentially imposes an ongoing “union-like” bargaining obligation for New York companies with at least 10 employees. Among the unanswered question is whether even a single employee’s request is sufficient to mandate the creation of a safety committee.

The Department of Labor will be busy coming up with standards and regulations regarding many aspects of these new laws. Employers must remain alert to future developments to prepare for implementation and ensure ongoing compliance.

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March 31, 2021

New York Law Protects Employee Marijuana Use

On March 31, 2021, New York Governor Andrew Cuomo signed the “Marihuana Regulation and Taxation Act” into law. This action immediately decriminalizes many instances of adult possession and use of cannabis products, including marijuana, statewide. It will eventually lead to the legal sale of marijuana through licensed dispensaries. Among the immediate impacts, now New York law protects employee marijuana use.

Legalization of Adult Recreational Marijuana Use

The extensive Marihuana Regulation and Taxation Act begins a complex process of legalizing the sale of cannabis for adult consumption in New York. Selling marijuana, except as licensed to certified medical marijuana patients, will remain illegal until sometime in 2021. However, New Yorkers aged 21 and up can immediately begin to use marijuana without violating state law.

The New York penal law is immediately amended to expressly declare the following “lawful” for people aged 21 or older:

Possessing, displaying, purchasing, obtaining, or transporting up to 3 ounces of cannabis and up to 24 grams of concentrated cannabis.
Transferring, without compensation, to a person 21 years of age or older, up to 3 ounces of cannabis and up to 24 grams of concentrated cannabis.
Using, smoking, ingesting, or consuming cannabis or concentrated cannabis (unless otherwise prohibited by state law).
Possessing, using, displaying, purchasing, manufacturing, transporting, or giving to any person 21 years of age or older cannabis paraphernalia or concentrated cannabis paraphernalia.
Assisting another person who is 21 years of age or older, or allowing property to be used, in any lawful acts listed above.

There are some restrictions on marijuana use, such as smoking or vaping it in most public places and automobiles.

Protections for Employee Marijuana Use

New York Labor Law has long protected employees’ off-duty conduct, including lawful use of consumable products. For example, employers usually cannot prohibit employees from smoking tobacco or drinking alcohol outside of work. The Marihuana Regulation and Taxation Act amends the existing protections to address employee marijuana use.

Section 201-d of the New York Labor Law now specifically protects an employee from job discrimination based on the “legal use of consumable products, including cannabis in accordance with state law.” The protection extends to use that is all of the following: (a) outside of work hours, (b) off the employer’s premise, and (c) without the use of the employer’s equipment or other property.

“Cannabis” means “all parts of the plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.”

Limits on Employee Cannabis Protections

Notwithstanding the new state law, marijuana remains a controlled substance (i.e., illegal drug) under federal law. And the Legislature seemingly acknowledges that marijuana can have a behavioral impact on individuals who consume it. The New York Marihuana Regulation and Taxation Act attempts to address those realities with potential exceptions to the Labor Law protections for employee cannabis use.

An employer does not violate section 201-d of the Labor Law based on employee cannabis use when:

The employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal government mandate;
The employee is impaired by the use of cannabis, meaning the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligations to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law; or
The employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.

Unfortunately, these exceptions are relatively vague in light of the situations employers are likely to face. For example, few, if any, other laws expressly prohibit an employer from employing someone who consumes marijuana outside of work. And it is practically difficult to measure whether someone is sufficiently impaired by cannabis while working.

Under the New York medical marijuana law, the federal Drug-Free Workplace Act has been referenced as a potential barrier to some employees using marijuana for medicinal purposes. However, there are still open questions as to that law’s relevance on the subject, including recreational marijuana consumption.

Employer Next Steps

The legalization of marijuana use (with limits) and the protections for employee marijuana use are effective immediately. Accordingly, all New York employers should consider taking the following actions.

Review Drug Use Policy

Do you have a policy that includes marijuana or other cannabis products as prohibited substances? If so, you may want to remove that reference or limit it to workplace use and impairment.

Modify Drug Testing Procedures

Pre-employment drug testing for marijuana is probably now unwise in almost all cases. It may be federally mandated for some categories of employees, such as those in the transportation industry. But, for most workers, a positive marijuana test would only provide employers with information that they should not be using as the basis for hiring decisions.

Drug testing for marijuana during employment will also now be problematic. Because of how long the drug can stay in one’s system, a positive test will often not guarantee workplace use or impairment. Employers will likely need to rely on personal observations to prove these unprotected scenarios.

Train Supervisors

Remember that employers may still discipline employees for using or possessing marijuana at work or working under the influence of cannabis if it negatively affects performance or safety. Employers with concerns about this occurring need to ensure supervisors are both aware of the legal restrictions and understand the visible symptoms that may demonstrate impairment.

Discussion of marijuana use by employees will likely become more prevalent in the workplace with the new legal protections. Employers may choose to restrict this subject in some cases. But, either way, knowledge of employees’ use generally cannot be used against them. Supervisors should avoid inquiring into this subject so that employees otherwise disciplined will not point to this factor as an alleged basis of discrimination.

Stay Informed

We are at the very beginning of understanding what legal recreational use of marijuana will mean for New York workplaces. Additional regulations may be on the way. And we’ll gain a better understanding of how various constituents will handle the employee marijuana use protections over time.

To receive future updates on this and other topics of interest to New York employers, sign up for the Horton Law email newsletter and follow us on LinkedIn.

March 28, 2021

NY COVID-19 Vaccination Leave FAQs

The New York Department of Labor has commented on the State’s law granting all employees paid leave to receive COVID-19 vaccinations. The guidance comes in the form of Frequently Asked Questions available on the agency’s website. These NY COVID-19 Vaccination Leave FAQs address some vital questions, but they leave others unanswered.

NY COVID-19 Vaccination Leave Basics

A law signed March 12, 2021, permits all employees in New York the right to take off up to 4 hours per injection to become vaccinated against COVID-19. The law applies to both public sector (government) and private sector (non-government) employees.

FAQ Coverage

To encompass all employees, the law added separate provisions to both the NYS Labor Law and Civil Service Law.

The NYS Department of Labor has no direct authority concerning the Civil Service Law. Thus, its COVID-19 vaccination leave FAQs only apply to the Labor Law provisions and private-sector workplaces.

Key Questions Answered

Amount of Leave

The FAQ document confirms that if a vaccine requires two injections, the employee could take paid leave twice. Each time could be for up to 4 hours, for a total of 8 hours over the two shots.

Basis for Leave

The DOL acknowledges that the leave is only available for the employee to get vaccinated. There is no leave mandate to permit an employee to assist anyone else, such as a family member, in obtaining a vaccination.

Notice of Leave

The COVID-19 vaccination leave FAQs at least recognize that employers may require notice before an employee takes time off to get the vaccination. Unfortunately, there is no further comment on the nature or timing of such notice.

Documentation

Perhaps the most significant aspect of the FAQ document is the confirmation that the law does not prohibit employers from requiring proof of vaccination from their employees who take the leave.

But, the DOL is careful to hedge by advising that “employers are encouraged to consider any confidentiality requirements applicable to such records prior to requesting proof of vaccination.”

Unanswered Questions

Noting that the Labor Law permits employees to take a “sufficient period of time” off for each injection, the FAQ document doesn’t attempt to define this term. The DOL merely reiterates that the employee is not entitled to more than 4 hours for each shot.

As mentioned above, the DOL has also thus far declined to suggest how much notice an employer may require. The law arguably permits employees to leave work at a moment’s notice to receive the vaccination.

Overall, the NY COVID-19 Vaccination Leave FAQs offer little beyond a literal reading of the new law. Employers facing questions about implementation and procedure should consider other applicable laws, such as those surrounding obtaining and using employee medical information. In some cases, unionized companies may need to negotiate some issues related to administering the leave requirement with unions.

As an additional reminder, employers cannot deduct paid COVID-19 vaccination leave from any other benefit time, including New York Paid Sick Leave.

Click here for the full NYS DOL FAQs on Paid Leave for COVID-19 Vaccinations.

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