Tag: COVID-19

COVID19 After 18 Months Cover Slide

COVID-19 After 18 Months (Webinar Recap)

On September 23, 2021, I presented a complimentary webinar entitled “COVID-19 After 18 Months”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

  • HERO Act Plan Activation
  • Expected OSHA Regulations
  • Vaccine Mandates
  • Paid Leaves
  • and More!

September 2021 saw a number of developments affecting New York workplaces with respect to the ongoing COVID-19 pandemic. Now 18 months into this constant barrage of restrictions, obligations, guidelines, etc., the struggle continues.

Various vaccine and testing mandates are in place with more expected soon. Both the New York Governor and President of the United States have made vaccination a priority and are finding ways to make employment contingent on vaccination.

Private employers now must have their HERO Act airborne infectious disease exposure prevention plans activated to combat COVID-19. This development also requires a verbal review of the plan and the underlying legal protections for employees.

This webinar addresses the latest on these topics and more.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “COVID-19 After 18 Months”

It’s nearly impossible to keep up with all the legal changes involving COVID-19 and the workplace. This update webinar addresses the most pressing issues of general interest to New York employers and points out the upcoming developments to watch out for. Every New York employer has obligations related to the pandemic, likely with more on the way. Take advantage of this free webinar to stay in the know.

Don’t Miss Our Future Webinars!

Click here to sign up for the Horton Law email newsletter to be among the first to know when registration is open for upcoming programs! And follow us on LinkedIn for even more frequent updates on important employment law issues.

Airborne Infectious Disease Exposure Prevention Plans Triggered

Airborne Infectious Disease Exposure Prevention Plans Triggered by COVID-19

On Labor Day 2021, Governor Kathy Hochul announced that the COVID-19 resurgence warrants implementing the safety plans required by the New York HERO Act. The law permits the NYS Commissioner of Health to invoke airborne infectious disease exposure prevention plans across all private-sector workplaces. To do so, the Commissioner must declare that a highly contagious communicable disease presents a serious risk of harm to the public health. The HERO Act became law as a result of the coronavirus pandemic earlier in 2021. However, it was intended to apply to future outbreaks. COVID-19 was seemingly under control at that point. Yet, the latest transmission rates prompted the invocation of the new law for the pre-existing disease.

The initial designation is effective until September 30, 2021. The Commissioner of Health will review whether to extend it at that time.

Private Employers Must Implement Their Plans

The NY HERO Act only applies to private (non-government) employers. The airborne infectious disease exposure prevention plan requirements apply to all New York entities with at least one employee. Employers had to adopt a compliant plan by August 5, 2021. But at that time the plans were effectively dormant pending a Commissioner of Health declaration that has now come.

For more on plan requirements, click here.

Plan Review

The initial plan requirements (and template plans) from the NYS Department of Labor were relatively vague. It was challenging to detail appropriate measures for combating an unknown future disease.

But now we know a lot about the disease prompting plan implementation: COVID-19. Or at least, we have nearly 18 months of experience trying to prevent the spread of this disease.

Employers should reevaluate their plans based on their previous experience with COVID. Revisions to the plan itself may not be necessary. But past efforts should at least guide the current implementation of your airborne infectious disease exposure plan.

Reviewing the Plan with Employees

Employers must now conduct a verbal review of:

  • employer policies;
  • employee rights under section 218-b of the NYS Labor Law; and
  • their airborne infectious disease exposure prevention plan.

This review should be done “in a manner most suitable for the prevention of an airborne infectious disease.” Options suggested by the DOL include in-person with good ventilation and face masks or via audio/video conference technology.

Employers must also provide a copy of their plan to all employees as implemented. Some employers may need to provide the plan in Spanish to employees for whom that is their primary language. (Additional languages may be required when the DOL provides model plans in that language.)

Ensuring Ongoing Compliance

While the airborne infectious disease exposure prevention plan remains in effect, employers must continually ensure that it is followed.

Companies must:

  • assign enforcement responsibilities to supervisory employees and ensure adequate enforcement;
  • monitor and maintain exposure controls; and
  • regularly check for updated information and guidance from the NYS DOH and the CDC.

Mandatory Controls

Although employers have discretion in many aspects of their plans, the DOL standard requires the following components:

Health Screening

As under previous NYS reopening guidance, employers must again screen employees for COVID-19 symptoms at the beginning of each workday.

You must then follow applicable protocols regarding testing, isolation, and quarantine before allowing symptomatic or infected employees to return to work.

Face Coverings

Companies must provide appropriate face coverings to all employees at no cost.

Employees must wear face coverings when physical distancing is not possible, following DOH and CDC guidelines.

Physical Distancing

Physical distancing must be used when possible to keep employees at least 6 feet apart.

Hand Hygiene

Employers must provide handwashing facilities and/or hand sanitizing supplies.

Cleaning and Disinfection

Each company must have a plan for cleaning and disinfection that includes the methods of decontamination based on relevant workplace factors.

Following DOH and CDC Guidelines

The NYS DOL’s airborne infectious disease exposure prevention standard compels employers to follow guidance from the NYS DOH and the CDC. It seems that much of the current CDC guidance is permissive rather than compulsory. So it’s unclear whether New York employers must now satisfy all CDC suggestions or only strict requirements. Furthermore, it’s possible that the DOH will issue updated guidance due to the renewed declaration. In essence, this may eventually be a method of returning to the 2020 regime where the State established the conditions under which businesses could operate. But in the meantime employer’s exact obligations remain somewhat uncertain, unfortunately.

 

As always, you can follow Horton Law on LinkedIn for the latest news and updates on COVID-19 compliance, the NY HERO Act, and other topics of interest to New York employers.

New York Healthcare Worker Vaccination Mandate

New York Healthcare Worker Vaccination Mandate

The New York State Department of Health has issued emergency temporary regulations requiring healthcare workers in various settings to receive the COVID-19 vaccine. The healthcare worker vaccination mandate includes most employees of hospitals and nursing homes. Employees and other personnel of some additional healthcare facilities and programs are also subject to the mandate. Covered workers who don’t become vaccinated in time could lose their positions.

Given the emergency nature of the regulations, they are only in effect for 90 days. They will expire in late November 2021 unless extended or adopted as permanent regulations.

Covered Entities

The New York healthcare worker vaccination mandate applies to personnel working for all of the following:

  • Hospitals
  • Nursing Homes
  • Diagnostic and Treatment Centers
  • Home Health Agencies
  • Long Term Home Health Care Programs
  • AIDS Home Care Programs
  • Licensed Home Care Services Agencies
  • Hospices
  • Adult Care Facilities

Most of the above terms are more specifically defined by law or regulations.

Generally, private “doctor’s offices” are not directly subject to the vaccination mandate. However, given the array of practice arrangements, providers should carefully consider whether they are covered.

Covered Personnel

The vaccine mandate extends beyond employees of these healthcare providers.

It applies to “all persons employed or affiliated with a covered entity, whether paid or unpaid, including but not limited to employees, members of the medical and nursing staff, contract staff, students, and volunteers, who engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients or residents to the disease.”

This definition is extensive. It may allow healthcare companies some flexibility in who must receive the vaccine. However, it would seem to cover most people (other than patients/visitors) who would come into contact with anyone else.

Vaccination Requirement

Covered personnel must eventually become fully vaccinated to continue to work/participate in their healthcare positions. They must at least obtain a first dose by September 27, 2021, if they work in hospitals, or by October 7, 2021, if they work in any other covered entity.

Healthcare entities must obtain proof of documentation for each worker and retain a copy in personnel or similar files. Employers must comply with privacy requirements. For example, medical documentation must be maintained separately from general employment records under the Americans with Disabilities Act.

Exemptions

The Department of Health regulations only permit a medical exception to the healthcare worker vaccination mandate. The Commissioner of Health had previously suggested a religious exemption would be available, but that was dropped.

A covered entity may excuse personnel from the vaccine requirement “if any licensed physician or certified nurse practitioner certifies that immunization with COVID-19 vaccine is detrimental to the health” of a person “based upon a pre-existing health condition.”

Healthcare companies may make any “reasonable accommodation” for workers with a medical exemption. Any exemption or accommodation must be documented in personnel records, again in compliance with applicable privacy laws.

The DOH regulations do not necessarily require companies to make exemptions or accommodations in every instance. They also don’t specify which accommodations are reasonable. These questions must be analyzed on a case-by-case basis.

Compliance

The regulations add requirements that covered entities must provide proof of documentation and exemptions to the Department of Health upon request. The regulations do not specify penalties for non-compliance. However, fines or potential loss of license may be possible for violations.

 

For more updates on dealing with COVID in the workplace, and other topics of interest to New York employers, sign up for the Horton Law email newsletter and follow us on LinkedIn.