Provided by: Jennifer Kirschenbaum, Esq.
September 28, 2020
What is the current status of COVID-related mandates? Tough to follow these days...
Thanks, Dr. W
Good question, and yes, it is tough to follow because as quickly as rules are passed, challenges are made and revisions adapted. Kieran Bastible, Esq. of our employment team has provided a summary of standings, below.
New York: As you are likely aware, last month, former Governor Andrew Cuomo announced that all healthcare workers in New York State are required to be vaccinated against COVID-19, and the official State rules were amended to codify the vaccine mandate. Those rules, as well as the New York State Department of Health (“DOH”), have provided additional guidance concerning the mandate.
“Covered entities” subject to the mandate” include any facility or institute included in the definition of “hospital” in section 2801 of the Public Health Law. Importantly, private practices are not subject to the mandate. All persons employed by a covered entity, “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” are subject to the mandate – not just front line employees.
Covered personnel in general hospitals and nursing homes were mandated to have received their first vaccination does by Monday, while personnel in all other covered entities must receive their first dose by October 7, 2021. Monday’s deadline has resulted in mass furloughs, layoffs and/or termination of hospital and nursing home personnel who failed to receive vaccinations without legally recognized exception (discussed below).
Covered personnel may be exempted from the vaccination requirements based on certain medical grounds only. The mandate, as it currently stands, does not include a religious exemption from the vaccination requirement. However, in response to a lawsuit that alleges that the mandate, in its current form, violated the United States Constitution, a Northern District of New York Federal Court judge granted a temporary restraining order (TRO) barring the DOH from enforcing the vaccine mandate to the extent that it requires that any employers deny religious exemptions from COVID-19 vaccination, or that it revoke any exemptions employers already granted before the mandate was issued. Attorneys for both the plaintiffs and the State have filed submissions as to whether the Court should modify the temporary stay into a more permanent injunction, and a decision thereon is expected to issue in early October.
Again, the TRO only prevents the DOH from enforcing the vaccine mandate to the extent that it bars consideration or granting of religious exemption requests.
Accordingly, Covered Entities subject to the mandate must adhere to all remaining requirements of the vaccine mandate.
Occupational Safety and Health Administration (OSHA): On September 9th, President Biden announced a plan to require all private employers with one hundred (100) or more employees to ensure that their workers are fully vaccinated against COVID-19, or produce a negative COVID-19 test each week. This vaccine mandate will be implemented through an Emergency Temporary Standard (ETS) to be issued by the U.S. Department of Labor’s OSHA.
OSHA has not yet released draft regulations, though they are expected within the coming weeks. Once released, it is not clear when the mandate will take effect, but employers may be left with a very tight timeframe to come into compliance. Legal challenges to the vaccine mandate are anticipated both on constitutional grounds, as well as to the validity of the ETS itself (only 10 have been issued by OSHA to date).
Attorneys General of several states (none in the tri-state area) have either already filed, or are in the process of filing, lawsuits in an effort to prevent the federal vaccine mandate from taking effect. Local However, , and attorney generals and governors from New Hampshire and South Dakota have promised similar legal action.
Takeaway : Litigation takes time, and the court(s) to whom these actions are assigned may not issue an immediate stay of the ETS. Thus, large employers (more than 100) should create a vaccination policy now that complies with the anticipated OSHA mandate ( require your employees to provide proof that they are fully vaccinated, or require them to submit to weekly testing). Despite the anticipated legal challenge, the OSHA regulations could become effective almost immediately after they are announced. Businesses that don’t comply with the mandate could face fines of up to $14,000 or more.
Large employers should thus put policies and practices in place to request, collect, and confidentially maintain records of employees’ vaccination status. Designate a contact person or small team to whom employees should provide evidence of their vaccination status (e.g., a copy of their vaccination card or Empire Pass). Remember that vaccination status constitutes confidential medical information and must be maintained confidentially and securely, separate from an employee’s personnel file. Finally, the anticipated ETS is expected to offer guidance as to payment responsibility for weekly testing.
HERO Act Implementation Now Mandatory: Former Governor Cuomo signed the New York Health and Essential Rights Act (“ HERO Act”) into law in May, 2021 in response to the pandemic. The Act, which applies to all private employers in New York State. the HERO Act seeks to protect employees from exposure and disease from future airborne infectious disease, and requires certain workplace health and safety protections.
Under this law, employers had until August 5, 2021, to either (1) adopt a prevention plan using either a template developed by the DOL, or (2) develop and establish an alternative prevention plan that meets or exceeds minimum requirements. While plans had to be adopted, they were not required to be in effect because no airborne infectious disease designation had been issued by the Commissioner of Health.
However on Labor Day, New York Governor Kathy Hochul designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under the HERO Act. This designation means that all New York employers must activate the workplace safety plans that they have developed under the HERO Act standards.
Employers were to have provided their Employer Plan to all employees by September 3, 2021 or (i) within 30 days after adoption of the plan; (ii) within 15 days after reopening after a period of closure due to airborne infectious disease; and (iii) to all newly hired employees upon hiring. The Employer Plan must also be “posted in a visible and prominent location within the worksite,” and, if an employer has an employee handbook, included therein as well. Employer Plans must also be made available upon request to all employees, and employers are required to conduct a “verbal review” of the Employer Plan and the employee rights under the HERO Act.
Post November 1st Obligations : After November 1, 2021, the HERO Act requires employers who employ at least 10 employees to permit employees to establish and administer a joint labor-management workplace safety committee, composed of employer and employee designees, at least two-thirds of whom must be non-supervisory employees. The workplace safety committees must be co-chaired by one representative of the employer, and one representative of the non-supervisory employees.”
These committees are permitted to review any policy “relating to occupational safety and health” and to regularly schedule a meeting during work hours at least once a quarter. Employers must permit workplace safety committee designees, without suffering a loss of pay, to attend a training “on the function of worker safety committees, rights established under [the HERO Act], and an introduction to occupational safety and health.” Employers may not retaliate against employees “for any actions taken pursuant to their participation” on a workplace safety committee.
Employees may bring civil actions against an employer alleged to have violated an Employer Plan “in a manner that creates a substantial probability that death or serious physical harm could result to the employee . . . “ Employees are required to give the employer notice of a violation before commending a lawsuit, and in most cases, employers have 30 days to cure any alleged deficiency, with the employee thereafter prohibited from bringing a civil action if the employer remedies the alleged violation. There is a 6-month statute of limitations to bring such an action, running from the date the employee gained knowledge of the alleged violation. Courts may issue injunctive relief and award costs and reasonable attorneys’ fees (including to the employer, in the case of frivolous actions).
The New York State Department of Labor (DOL) may assess a civil penalty of at least $50 per day for failing to adopt an Employer Plan, and between $1,000 – $10,000 for failing to abide by an Employer Plan. The DOL may also order “other appropriate relief,” such as an order enjoining the conduct of an employer.
We urge all healthcare employer to put in place workplace vaccine policies, and for those in New York, a HERO Act Employer plan. While you have almost certainly already put into effect many of the exposure controls which are mandated parts of a HERO Act plan, such as: (i)Health screenings; (ii)Face coverings; (iii) Physical distancing;; (iv) Hand hygiene facilities; (v) Cleaning and disinfection; and (vi) Personal protective equipment, an actual Employer Plan must be generated and implemented.