Over the last several days, various government agencies have issued guidelines and interpretations that have employment-related implications for home care providers. Here are the highlights:
1. New York Department of Labor has released guidance regarding recreational marijuana use. As relevant to home care providers, the State’s guidance affirmatively states that employers may not test for marijuana. There are exceptions to this general rule, but those exceptions will generally not apply to home care providers that are requiring a drug test as a condition of employment.
2. The Department of Labor has updated its guidance concerning the New York paid vaccination leave law. The updated guidance is here. The guidance states that employees are entitled to be paid for up to 4 hours for time taken off from work to receive a booster shot of the COVID vaccine. Until now, the guidance only affirmed the law’s requirements to allow employees up to 4 hours to receive the first and second shot of the COVID vaccine. This guidance expands employers’ obligations. As a reminder, employers cannot charge employees’ existing PTO accruals for this leave. The 4 (or more) hours of pay is in addition to any PTO accruals that employees have.
3. The EEOC has updated its guidance concerning religious exemptions from vaccine requirements. As relevant to home care, and consistent with the counsel our firm has provided thus far, only accommodations for sincerely held religious beliefs should be considered. The EEOC has also affirmed that a number of factors may be considered in determining whether the opposition to vaccination is truly grounded in religious reasons. Factors that could undermine the employee’s exemption request include: (a) employee acting inconsistently with the professed religion (such as having been vaccinated before), (b) the accommodation sought is a desirable benefit for the employee (such as making a request to work remotely due to unvaccinated status), (c) the timing of the employee’s request, and (d) other surrounding circumstances that indicate the exemption is not being sought due to religious reasons.
4. Reminder: Office employees of healthcare facilities, including LHCSAs, must wear masks. According to an August 27, 2021 “Commissioner’s Determination on Indoor Masking Pursuant to 10 NYCRR 2.61,” “all personnel, regardless of vaccination status, in a healthcare setting…shall wear an appropriate face mask in accordance with applicable CDC exceptions until this determination is modified or rescinded.” The masking rule applies to visitors of healthcare facilities. Although this DOH advisory is from August 27, a number of LHCSAs had reached out recently to confirm that this applies to their office environment. The DOH has confirmed that the masking obligations apply in office setting also, where no patients visit, and to vaccinated office workers.