Author: Sam Sadovic

New NYC Mayor Eric Adams has announced that he plans to keep New York City’s vaccine mandate in place. Adams explained that his Winter 2022 COVID Plan will revolve around six “pillars,” including that the private sector mandate will remain in effect “with a focus on compliance, not punishment.” This is not materially different from the approach taken by DeBlasio’s administration, which had stressed cooperation with businesses, not prosecution.

We will continue to monitor for further developments on this issue. In the meantime, NYC employers and, more specifically, City fiscal intermediaries are reminded of this mandate, which will continue to be in effect irrespective of the fate of OSHA’s vaccination mandate at the United States Supreme Court.

On December 22, 2021, the New York Department of Labor published the final State Paid Sick Leave Law (PSL) regulations in the State’s Register. Of significance, the Register contains the Department’s answers to questions about the PSL and sheds light on how the Department intends to interpret and enforce the PSL regulations.

Significantly, as provided by the DOL, employers may have a practice of cashing out unused paid sick leave for employees at the end of the year, provided that employees are given the option to either cash out unused paid sick leave or carry it over. Alternatively, an employer can choose to allow employees to carry over the sick leave as the only option, but employers cannot impose a “use it or lose it” policy upon employees for paid sick leave. Whichever policy the employer chooses must be in writing and distributed to employees. This is an important clarification because, on the face of the PSL statute, there was no right to cash out unused PSL. Employers who utilize PSL to satisfy wage parity should take note of this important point.

Also of interest, the DOL noted that it would publish an “employee attestation template,” which is likely to be similar to what New York City allows for employees covered by the City’s PSL. Note, an employer may not deny an employee leave while attempting to confirm the basis for the leave. However, if the employer discovers the request for PSL to be false or fraudulent, disciplinary action may be taken against the employee. Employers are cautioned about taking any adverse action against employees on the basis of use of PSL, due to the potential of a retaliation claim. Lastly, of note, the DOL notes that documentation requests for absences of less than 3 days are necessary.

If you have any questions about the PSL, how it interacts with the NYC paid sick leave, the Wage Parity Law, or the Domestic Workers’ Bill of Rights and other similar laws, please contact us.  Or, consider outsourcing your full paid leave management and compliance to Forework, our HR partner.

Late last week, the Department of Health sent email notifications to all but four LHCSAs that were deemed eligible for federal Medical Assistance Program (“FMAP”) funds. As we had reported previously, the DOH is expected to receive a total of $1.6 billion in funding over the next year, and these funds will be distributed to home care providers. In turn, home care provider recipients will be required to use the funds for designated purposes, with the first phase of funds having to be used for certain workforce retention and value-based payment programs. The first phase of the FMAP will be issued to the top billing 1/3 of LHCSAs (based on 2019 MLTC/MCO revenue).  The DOH estimates that approximately 250 LHCSAs will receive this first phase of FMAP distributions.

The DOH has clarified some facets of the FMAP. First, the DOH is emphasizing that the initial distribution of FMAP funds, that will be issued to the approximately 250 agencies, is merely “phase one” of New York’s overall plan for the expected $1.6 billion in FMAP funding from the federal government. This phase is focused on “transforming the long-term care workforce and achieving value-based payment readiness.” The other facets of the State’s plan will target workforce transportation challenges, supporting CDPAP growth, and expanding capacity for the provision of NHTD and TBI services.

For providers that were selected for the first phase distribution, the DOH will host a webinar at the beginning of January to describe the qualification requirements. The agencies that received letters from the DOH are presumptive awardees and, to secure their FMAP award, certain information must be provided to the DOH via a questionnaire that was also distributed by the DOH. If you have any questions about FMAP or how to complete the DOH survey, please don’t hesitate to reach out to us.

On Wednesday, December 15, 2021, the Fifth Circuit Court of Appeals reversed a lower-level federal court decision and LIFTED the nationwide injunction that had been granted against the enforcement of the CMS vaccination mandate for covered providers. The Fifth Circuit held that the district court went too far in issuing a nationwide injunction. As a consequence of the Fifth Circuit’s decision, the CMS vaccination mandate is now technically only on hold for the States that had sued CMS; Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, Ohio, Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire. The mandate is, thus, in effect in New York. Prior to the Fifth Circuit’s decision, CMS had suspended enforcement of the regulation. We expect CMS to clarify its stance on enforcement and compliance deadlines shortly, in view of the Fifth Circuit’s decision.

As readers of our alerts will recall, the CMS regulation applies to CHHAs, but not to FIs and LHCSAs. Also, CHHAs are already covered by the Department’s August 26 vaccination mandate. Thus, the CMS regulation has limited impact on CHHAs in New York State.