Category: Labor and Employment

The New York State Department of Labor (DOL) recently published a proposed regulation regarding the NYS HERO Act and the provisions surrounding workplace safety committees. As we had previously reported, the HERO Act requires employers with 10 or more employees to allow the employees to “establish and administer a joint labor-management workplace safety committee.” Importantly, employers are not required to form such a committee on behalf of their employees. However, if employees choose to form a workplace safety committee, the employer has certain obligations surrounding the conduct of the safety committee. The committee must include both supervisory and non-supervisory employees, and the committee’s size requirement is relative to the size of the operation. Meeting and training time related to the committee obligations must be paid by the employer, within reasonable limitations outlined in the law.

The State will receive comments and feedback on the proposed regulation and, upon review of the comments and further analysis of the proposed regulation, a final regulation will be issued.

Please reach out to us if you have questions about the safety committees or, more generally, about your obligations under the Hero Act.

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.

On December 15, 2021, New York City released GUIDANCE on the private employer
vaccine mandate which is scheduled to take effect Monday, December 27. As we had
reported, this mandate would apply to New York City employees who perform in-
person work or interact with the public, and it would require them to show proof they
have received at least one dose of a COVID-19 vaccine by December 27. Partially
vaccinated workers then have 45 days to show proof of their second dose. Since the
majority of home care providers have already been covered by the DOH’s mandate
since August 26, the following is only relevant to New York City fiscal intermediaries.

Covered Businesses and Workers
The vaccine mandate applies to all employers that employ one or more workers in
New York City or that maintain a workplace in New York City. The mandate also
applies to self-employed individuals and sole proprietors who work at a workplace or
interact with workers or the public in the course of their business. Thus, a consumer –
even if he or she is not a joint employer – could be covered by this mandate.

Notably, the order does not apply to businesses who are already subject to “another
Order of the Commissioner of the Department, Board of Health, the Mayor, or a State
or federal entity that is in effect and requires them to maintain or provide proof of full
vaccination.” For instance, LHCSAs and CHHAs are already under a DOH order of
vaccination and, thus, not covered by the City’s mandate.

The vaccine mandate applies to all individuals who work in-person in New York City at
a “workplace,” which is defined broadly as “any location, including a vehicle, where
work is performed in the presence of another worker or member of the
public.” Arguably, this language excludes a home setting since no member of the public
or another worker are present in the home. However, there is ambiguity in this
regard.

The mandate includes exemptions for:

1. Individuals who work from home and whose employment does not involve
   interacting in-person with co-workers or members of the public – this is a
   potential carve-out that would might personal assistants who live
   with their consumer to be excluded from coverage
2. Non-New York City residents who are performing artists, athletes, or individuals
   accompanying such performing artists or athletes who do not have to display
   proof of vaccination pursuant to the Key to NYC program; and
3. Checking proof of vaccination daily before allowing a worker to enter the
   workplace and maintaining a record of the verification.
4. Individuals who have been granted a reasonable accommodation (as discussed
   further below).

Proof of Vaccination and Certifying Compliance
The mandate requires that covered employers verify each covered worker’s vaccination
status by doing one of the following:

1. Maintaining a copy of each worker’s proof of vaccination or reasonable
   accommodation documentation;
2. Maintaining a paper or electronic record that includes: (a) the worker’s
   name; (b) whether the worker is fully vaccinated; (c) for workers who
   submit proof of partial vaccination, the date by which proof of the second dose
   must be provided; and (d) for workers who do not submit proof of vaccin-
   ation because of a reasonable accommodation, that such accommodation was
   provided; or
3. Checking proof of vaccination daily before allowing a worker to enter the
   workplace and maintaining a record of the verification.

While contract workers are covered by the mandate, employers may request that the
contractor’s employer confirm that the contractor is vaccinated in lieu of verifying proof
of vaccination by one of the methods listed above. Businesses taking advantage of this
option must maintain a record of the request as well as the confirmation from the
contractor’s employer.

The guidance goes on to explain that employers may accept the following forms of
proof of vaccination: (1) A CDC COVID-19 vaccine card; (2) a New York City COVID-19
Safe App record; (3) A New York State Excelsior Pass/Excelsior Pass Plus; (4) A
CLEAR Health Pass; and (5) other official vaccine records from the jurisdiction where
the vaccine was administered, or from a healthcare provider or other approved
immunizer who administered the vaccine, that provides the person’s name, vaccine
brand, and date of administration. A digital photo or photocopy of such record is also
acceptable.

By December 27, businesses must also complete a CERTIFICATE affirming they are in
compliance with the vaccine mandate and post the certificate in a public place.

Exemptions from the Mandate
The guidance also makes clear that employers must consider requests for reasonable
accommodations related to the vaccine requirement from employees who request them
because of disability, pregnancy, childbirth, lactation, religious beliefs or observances,
or status as a victim of domestic violence, stalking, or a sex offense. Workers must request
a reasonable accommodation by December 27 in order to continue working unvaccinated
in a workplace covered by the order. Notably, the guidance states that employers may
continue to allow workers who have requested an accommodation to enter the workplace
while the request is pending.

Employers must maintain documentation stating the basis for granting accommodations
for employees, including any supporting documentation provided by the requesting
employee. The guidance provides employers with a CHECKLIST that can be used to evaluate
the exemption or accommodation request. If an employer chooses to utilize these checklists,
the lists should be kept on file and maintained as a record of any exemptions or accommodations
that are granted by the employer. As with any other accommodation request in New York City,
employers must provide a written communication of the employer’s determination regarding
the accommodation at the conclusion of the cooperative dialogue process.

The guidance provides the following, non-exhaustive list of conditions that may qualify for
a permanent medical exemption: (1) the requesting employee had a severe allergic reaction
after a previous dose or to a component of all three approved COVID-19 vaccines; or (2)
the requesting employee has a known diagnosed allergy to a component in all three approved
COVID-19 vaccines.

A temporary medical exemption may be granted if the requesting employee: (1) has presented
medical documentation showing that they are within 90 days of monoclonal antibody or
convalescent plasma treatment of COVID-19; (2) has presented medical documentation
showing they recently underwent stem cell transplant, CAR T-cell therapy, or other therapy
or treatment that would temporarily interfere with the worker’s ability to respond adequately
to vaccination; or (3) has pericarditis or myocarditis. Again, this list is non-exhaustive. The
guidance also states that medical documentation must be from the worker’s treating physician
with a valid medical license.

For religious accommodations, the guidance provides the following reasons an employee may qualify
for a religious accommodation: (1) the employee has explained/documented how the belief requires
the employee not to be vaccinated; (2) the employee has not taken other kinds of vaccinations previously, and if the employee has received other vaccines, they should explain why those vaccines were not against their religion; (3) the employee says their religious belief prevents them from allowing certain substances to enter their body; or (4) the employee says that they cannot take the vaccine because it was developed and/or tested using fetal cells that the worker is concerned may have been the result of an abortion, and the worker does not also take other medications similarly developed or tested using fetal cell derivative lines.

Given the exemptions allowed – and the expansiveness of the exemptions as compared to the DOH’s
limited exemptions – CDPAP providers are likely to obtain a number of exemption requests from
personal assistants who are not yet vaccinated.

Enforcement and Penalties for Noncompliance
According to the Guidance, inspectors from various City agencies will begin enforcing the Order on December 27, 2021, and all inspectors, no matter which agency they are from, will be inspecting for compliance with the same requirements.

Although the Guidance Documents provide that the goal is to educate and work with businesses to help
them achieve compliance, if a business refuses to comply, it would be subject to a fine of $1,000 and
escalating penalties thereafter if violations persist. If you have any questions about this topic, please do not hesitate to reach out.

No FI is likely to lose their “license” to operate as a fiscal intermediary for violation of this mandate, however, it is not advisable, especially for lead fiscal intermediaries, to garner attention by violating the City’s Order.

In an order issued on December 13, the United States Supreme Court declined to accept an appeal of the Second Circuit’s decision, which had refused to enforce the religious exemption to the COVID-19 vaccination mandate. As our readers will recall, several weeks ago, the Second Circuit had declined to issue an injunction that would have expressly directed covered healthcare providers to consider and grant religious exemptions to eligible healthcare workers. As a result of that Second Circuit decision, and upon urging by various stakeholders, the Department of Health issued guidance allowing all healthcare workers who had been previously received religious exemptions to become vaccinated by November 22 in order to keep their employment. In the meantime, the opponents of the vaccine mandate had filed an appeal of the Second Circuit’s decision to the Supreme Court. In yesterday’s order, the Supreme Court declined to take up the issue for review.

The underlying lawsuits regarding the religious exemption question, as created by the Department’s regulation, will continue in New York courts, and may even make their way to the United States Supreme Court at some point in time. For the time being, however, covered healthcare providers must ensure that any patient-facing, or even potentially patient-facing, healthcare staff are vaccinated or that they receive a medical exemption.

If you have any questions about the definition of covered employees, please do not hesitate to reach out.

We are pleased to announce the launch of FOREWORK, an independent employment technologies and HR solutions company.

Over the last several years, as I have worked with providers on their employment law compliance and – most challenging of all – wage and hour class actions and audits – I saw a need for competent outsourced HR services and compliant employment technologies. Forework was created as the one-stop end-to-end solution for businesses to handle all of their employment-related needs and provide competent HR support, so that businesses can stay in compliance and minimize their exposure to expensive employment litigation.

To meet business’s varying HR needs, Forework offers several different services and plans:

• The Employment Law Concierge Service – Subscribers to this service are paired with a dedicated HR expert, the “Employment Concierge,” who will work exclusively with their company to oversee all aspects of their HR. From updating employment policies, hiring for key positions, and writing job descriptions, to handling unemployment insurance claims, conducting workplace manager training, HR audits and overseeing employment compliance, the Concierge serves as the employer’s trusted HR partner.
• Policies, Forms, and Contracts – Forework’s website contains a library of 200+ attorney-approved employment policies, contracts, and forms that businesses may need to stay in compliance and protect their business in employment matters. From live-in policies, to wage parity procedures, and corporate compliance plans, home care providers can easily purchase necessary employment and procedural documents for their agency from Forework’s website.
• Forework OnDemand – Today’s fast-paced work environment requires fast answers and solutions. Forework’s OnDemand platform allows employers to book a call with an experienced HR consultant or attorney, right on Forework’s website. The employer will receive a call back the same day from Forework to assist the employer with their employment matter.
• OnSite HR Service – For businesses that need a temporary HR director or on-site support at their place of business, Forework’s OnSite HR service will assign an experienced human resources consultant to work at the client’s place of business and handle all personnel matters, including compliance.
• Work Law Subscription Service – With everchanging employment laws, the Work Law Subscription monitors the law for employers and alerts them of key legal changes impacting their business, issues updated policies and procedures to subscribing employers, and provides 1 hour of HR counseling each month.
• Employment Project Experts – For businesses that wish to outsource some HR functions, the Employment Project Service allows the business to hire a Forework HR expert on a project-basis. For example, clients can retain a Forework expert to oversee the full employee disability and leave process, from workers’ compensation to FMLA/PFL. The Forework expert would work directly with the employer’s employees who are requesting leave, monitor all leave, and report to management as needed.
• Payroll and Tax Processing **Coming Soon** – Custom designed to meet the current and future challenges of home care wage and hour laws, Forework’s payroll technology will provide employers peace of mind that their employees are being paid properly. Designed by a wage and hour attorney, Forework’s payroll technology was built by compliance.

To inquire or subscribe to any of these services, please visit www.forework.com or call 1-83-forework.

Although New York has had an employment-related whistleblower statute for decades, many employers may not have been aware of it. That is because the statute itself – N.Y. Labor Law Section 740 – has been fairly limited in its scope and application. Indeed, it has only protected employees who disclose employer activity that violates laws relating to public health and safety or to health care fraud. Disclosures of other unlawful activities have not been protected by Section 740.

Starting next year, this is about to change. Gov. Hochul has signed a bill that will amend and expand Section 740. The amended law, which is scheduled to take effect on January 26, 2022, drastically expands the breadth and scope of Section 740 by making it significantly easier for New York workers to bring a claim, lengthening the statute of limitations, and imposing a notice requirement on employers.

The Key Changes to Section 740 are as follows:

• Independent contractors can bring claims too: As a starting point, under the amended law, not only will current and former employees be able to assert legal claims against the employer, but so will independent contractors.
• Broad expansion of protected activity: Perhaps the most noteworthy aspect of the amendment is how it expands the types of employee activities that are protected under Section 740 of the Labor Law.

Previously, Section 740 was a narrow statute that primarily barred employers from taking retaliatory action against employees only where the employee had disclosed or threatened to disclose to a supervisor or public body, or had objected to or refused to participate in “an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud.” The prior version of the law thus required that an actual legal violation have occurred – i.e., an employee’s reasonable belief that a violation had occurred was insufficient – and was intended to curb only activities that posed a substantial and specific danger to public health or safety or that constituted health care fraud.

The amended statute, however, broadly expands this scope of protected activity. Specifically, the law now bars employers from taking retaliatory action where the employee discloses or threatens to disclose to a supervisor or public body, or objects to or refuses to participate in “an activity that the employee reasonably believes is in violation of law, rule or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.” The new definition, therefore, essentially protects, and bars employers from retaliating against workers who report any actual, or reasonably perceived by the employee, violation of any law, rule, regulation, executive order, or judicial or administrative decision, ruling, or order at all, regarding of its subject matter.

• Broadened definition of retaliatory action: Section 740 has always barred employers from taking retaliatory action against employees who engage in activity that is protected by the statute. However, previously, “retaliatory action” was defined to include only the discharge, suspension, or demotion of an employee, or other adverse employment action. Under the revised statute, the definition of “retaliatory action” has been expanded. It now includes any actual or threatened (i) adverse employment actions, (ii) actions that would adversely impact the individual’s current or future employment, or (iii) reporting of the suspected citizenship or immigration status of an employee or their family or household members.
• Lengthened statute of limitations: To date, Section 740 has provided for a one-year statute of limitations for whistleblower claims. As amended, the statute of limitations for filing a retaliation claim will be increased to two years.
• Additional forms of relief: Previously, Section 740 provided that a plaintiff-employee could seek injunctive relief, reinstatement to the same or an equivalent position, reinstatement of full fringe benefits and seniority rights, compensation for lost payments and benefits, and attorney’s fees. Under the revised statute, a prevailing plaintiff may now also be entitled to recover front pay, punitive damages, and a civil penalty of up to $10,000. The amended law also makes clear that parties to a Section 740 claim are entitled to a jury trial (though this portion of the law may well be preempted by the Federal Arbitration Act).
• Notice requirement: The prior iteration of Section 740 contained no notice requirement. The amended statute, however, requires that all Empire State employers post a notice of employee whistleblower protections, rights, and obligations in an easily accessible, well-lighted place that is often frequented by employees and applicants. Note, Section 741 of the N.Y. Labor Law, which pertains to the health care industry, was also amended to include a notice requirement, but otherwise, it remains substantively unchanged.

Recommendations

Employers should immediately train their human resources personnel and supervisors about this new law and update any relevant policies (including but not limited to whistleblower policies, retaliation policies, and complaint procedure policies).  These expanded provisions will create a very easy way for disgruntled employees to sue their employers. Thus, managers and first-line supervisors will need to be trained to better recognize these new “traps.”

Lastly, employers should ensure that a notice of employee whistleblower protections, rights, and obligations is posted by January 26, 2022.