Category: Educational Institutions

The New York State has legislature passed the Hero Act, which would require all employers in New York to implement certain safety standards and adopt a prevention plan to protect against further spread of COVID-19 and other airborne infectious diseases in the workplace. This Bill is not yet a law, and it cannot become a law until Governor Cuomo signs it. He has expressed support for the Hero Act, but that support has waned in the last few days as business leaders decried the Hero Act requirements. In this article, we summarize the Hero Act requirements should this bill become a law.

The Key Requirements

The Hero Act would require the state Department of Labor, in consultation with the Department of Health, to create an airborne infectious disease safety standard, as well as a model airborne infectious disease exposure prevention plan. The safety standard (which ultimately will differ between industries) would establish minimum requirements on procedures and methods for the following:

• Employee health screenings;
• Face coverings;
• Required PPE that must be maintained in a sanitary and reliable condition at the employer’s expense;
• Accessible workplace hand hygiene stations and maintaining healthy hand hygiene (including providing adequate break times for employees to wash their hands);
• Regular cleaning and disinfecting of shared equipment and frequently touched surfaces;
• Effective social distancing for employee, consumers and customers;
• Compliance with mandatory or precautionary orders of isolation or quarantine that have been issued to employees;
• Compliance with applicable engineering controls such as proper air flow, exhaust ventilation or other special design requirements;
• Designation of one or more supervisory employees to enforce compliance with the plan and any other federal, state or local guidance related to avoidance of spreading an airborne infectious disease as applicable to employees and third parties (i.e., customers, contractors and members of the public within the workplace);
• Compliance with any applicable laws, rules, regulations, standards or guidance on notification to employees and relevant state and local agencies of potential exposure to airborne infectious disease at the worksite; and
• Verbal review of infectious disease standard, employer policies and employee rights.

Employers would be required to adopt the state model or implement their own written plan that meets or exceeds the standards set forth in the state model.

Providing Notice of the Safety Plan

Such plans must be provided to all employees upon the Act’s effective date (or upon reopening after a period of closure due to airborne infectious disease) and upon hire, in English and in the language identified by each employee as their primary language. If an employee identifies as their primary language a language for which a model document is not available from the state, the employer would be permitted to provide an English-language notice.

Employers would also be required to post the plan in a “visible and prominent location” within the worksite and include a copy in the employee handbook. Further, employers would be required to make the plan available, upon request, to all employees, independent contractors, employee representatives, collective bargaining representatives, and the state commissioner and commissioner of public health.

No Retaliation or Discrimination

The Act would prohibit discrimination and retaliation if employees (i) report violations of the Act or an employer’s plan to any state, local, or federal government entity, public officer or elected official; (ii) report airborne infectious disease exposure concerns; and/or (iii) refuse to work if the employee reasonably believes, in good faith, that such work exposes the employee or other employees or the public to an unreasonable risk of exposure to an airborne infectious disease, provided that the employee notified the employer of their concerns regarding the employer’s failure to comply with the Act and the employer failed to cure or otherwise address those concerns.

Penalties

Penalties for non-compliance with the Act’s requirements may include a fine of $50 per day for failure to implement a compliant plan or between $1,000 and $10,000 for failure to abide by an adopted plan. If it is determined by the State that an employer previously violated the Act in the preceding six (6) years, such penalties may increase to $200 per day for failure to implement a compliant plan or between $1,000 and $20,000 for failure to abide by an adopted plan. Further, employees may bring a civil action against an employer and seek injunctive relief, costs, attorneys’ fees and liquidated damages. If, however, an action is brought by an employee and a court finds that such action is “completely without merit in law and undertaken primarily to harass or maliciously injure another,” the employer may seek sanctions against the party who brought such action.

Safety Committee

In addition, the bill would require employers with at least 10 employees to allow employees to “establish and administer a joint labor-management workplace safety committee.” Each committee would be composed of employee and employer designees, provided at least two-thirds are non-supervisory employees. Committees would be authorized to, among other things, (i) raise health and safety concerns; (ii) review any policy put in place in the workplace required by this law and provide feedback; (iii) 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; (iv) participate in any site visit by any governmental entity responsible for enforcing safety and health standards in a manner consistent with any provision of law; (v) review and report filed by the employer related to the health and safety of the workplace; and (vi) regularly schedule a meeting during work hours at least once a quarter.

Next Steps

The Hero Act bill now heads to Governor Andrew Cuomo who has previously announced his intention to sign it. If signed, the Hero Act would take effect on the 30th day after it becomes law; however, section two of the bill (permitting the creation of a joint employer-employee workplace health and safety committee) would take effect on the 180^th day after it becomes law.

The Immigration and Nationality Act prohibits approval of visa and green card applications for anyone who is deemed likely to become a “public charge” based on several factors including age, health, family status, assets, resources, financial status, education, and skills.  Historically the “public charge” ground of inadmissibility was applied to those who were deemed likely to become “primarily dependent” on a designated list of state and federal programs which were primarily cash-based assistance programs based on income level.

On August 14, 2019, DHS published in the Federal Register a Final Rule that changes this interpretation (without changing the underlying law), by stating that immigrants could be denied immigration benefits if they access certain public benefits for any 12 month period within any 36 month period.

The Rule also added the following public benefits to the list of those that could render immigrants ineligible for immigration benefits to include: non-emergency Medicaid; Supplemental Nutrition and Assistance Program (SNAP, formerly food stamps); Section 8 Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance; and Public Housing.

In New York state, the children of any households that receive SNAP and TANF automatically receive reduced or free school meals based on receipt of those benefits; however, even those not on SNAP or TANF may qualify by filling out a separate application. Because immigrants now may not access SNAP without potentially rendering themselves ineligible for immigration benefits, there may be considerable confusion in immigrant communities about whether children otherwise eligible for free or reduced school meals may still access those benefits, which are also federally funded.

The DHS Final Rule does not mention the separate federally funded programs for school breakfasts and school lunches, even though they are tied to receipt of SNAP and TANF.

Thus receipt of free or reduced school breakfasts or lunches would not render immigrant children ineligible for green cards or other immigration benefits.  In light of the potential for confusion surrounding this issue, and although they are not required to provide such notification, school districts may wish to inform parents that their otherwise eligible children may continue to receive these benefits without jeopardizing their children’s or their own immigration status.

On August 9, 2019, Governor Andrew Cuomo signed into law an amendment to the New York State Human Rights Law that expressly prohibits discrimination based on religious attire, clothing or facial hair. This amendment becomes effective on October 8, 2019.

The amendment changes the New York State Human Rights Law to expressly provide that employers may not discriminate against individuals for wearing “any attire, clothing, or facial hair” in accordance with a sincerely held religious practice. While New York law has long prohibited religious discrimination, the current amendment makes clear that the existing prohibition on religious discrimination extends to religious attire, clothing, and facial hair. An employer can still assert the undue hardship defense if it can establish that, after engaging in a bona fide effort, it cannot accommodate the applicant or an employee’s sincerely held religious observance or practice, without undue hardship.

According to a memorandum published by the bill’s sponsors, the amendment was passed in response to a lawsuit brought by a Sikh employee against his employer, the Metropolitan Transportation Authority, after it instructed him to remove his turban or put his employer’s logo on it.

Once the amendment takes effect, any employer that requires an employee to violate or forgo a sincerely held religious practice relating to clothing, attire or facial hair may face liability under the New York State Human Rights Law. Employers are cautioned that potential liability for private employers as a result of an alleged unlawful discriminatory practice may soon include claims for punitive damages and attorneys’ fees as a result of another law recently signed by Governor Cuomo.

Employers should review their existing policies to ensure their appearance, grooming, and related policies comply with this amendment to the Human Rights Law, as well as the recent amendment banning discrimination on the basis of certain hairstyle.  Employers should also ensure they have procedures in place for employees to request accommodations on the basis of their religious beliefs, including those related to the wearing of any clothing, attire or facial hair, and that supervisors are trained on how to respond to such requests.

On August 16, 2019, the New York State Education Department (“SED”), in conjunction with other State agencies, released additional guidance (available HERE) regarding the recent changes to New York State’s Public Health Law, which repealed the religious exemption from vaccinations for school-age children.  Other guidance on this topic was previously released by the State on June 18 (available HERE)  and  July 22 (available HERE).

Under the new law, parents who choose not to vaccinate a student with a disability must still ensure children of compulsory school receive an education. Students who remain unvaccinated and without a medical exemption must now be homeschooled (i.e., “home instructed”) by their parents. But the change in law prompted the question of whether school districts are obligated to provide special education services, including related services, to homeschooled students who are unimmunized. SED did not expressly address this issue in its two previous guidance documents.

SED has now confirmed that unimmunized students with disabilities who are provided home instruction from their parents are still entitled to receive special education services in accordance with an individualized education services program (“IESP”) developed by the district of residence’s committee on special education.  However, unlike immunized students, these students cannot be on school grounds or be on school buses to travel to the school district to receive their designated special education related services.

For other homeschooled students with disabilities who are immunized, the board of education determines where the special education services will be provided. Usually, the district provides the services either at the student’s home or at a school district building depending on the type of service and its frequency. The board of education has the discretion to designate where the services will be provided based on the most efficient and effective strategy. Cost savings to the school district would be one factor the board of education considers in making this efficiency determination.

For unimmunized students with disabilities with IESPs, the SED guidance states that these students cannot be on school grounds; so districts no longer have the discretion to determine that their special education related services can be provided at a school. The board of education’s discretion is now limited in making these decisions on location of services — which could be the student’s home, a service provider’s office, or public gathering sites such as community centers or libraries. Furthermore, this latest guidance states that if the board of education determines to provide the services at an alternate site, not the student’s home, the district remains responsible for providing transportation unless the parent drives the student to the alternate site. However, according to SED, the student could not be transported on a school bus with other students; so other means of district-funded transportation would need to be provided.

SED did not include much legal analysis in support of this guidance. Instead, SED simply concluded that homeschooled students are entitled to special education services in conjunction with the academic instruction provided by their parents. In reaching this conclusion, SED sidestepped a number of important issues including whether homeschooled students receiving special education services are deemed “enrolled” in school, which would seemingly trigger a duty to be vaccinated. Similarly, SED failed to consider the many public policy concerns (e.g., exposing students and staff members to unvaccinated students) which prompted the recent change in law.

Lastly, SED acknowledged that parents of homeschooled students are generally required to request special education services by June 1 preceding the school year for which the request for services is made. In light of the timing of these recent developments, SED has encouraged school districts to honor untimely parental requests for the 2019-2020 school year if those requests were prompted by the repeal of the religious exemption to the vaccination requirements.