Month: February 2022

HRCE Compliance Update: NYS HERO Act Extended Again & Info on COVID Paid Sick Leave

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Mary Bassett w Gov Hochul

The New York State Commissioner of Health, Dr. Mary Bassett, once again extended the designation of COVID-19 as highly contagious, which requires employers’ HERO Act Disease Exposure Prevention Plans to remain activated through at least March 17, 2022. 

The Commissioner’s fifth consecutive extension of the COVID designation comes when the number of new COVID cases in NYS has dropped precipitously over the past several weeks. From a seven-day average high of just over 74,000 in early January to 4,744 on February 14. However, even with the significant drop in cases, the Commissioner’s continued designation of COVID-19 as highly contagious and a serious risk to public health was not unexpected. That’s because the decision is based, at least in large part, on the CDC continuing to identify the level of COVID transmission in all but one NY county as “high.”  

Exposure Prevention Plans Remain in Effect, But Unmasked!

Employers in NYS must continue enforcing their company’s Disease Exposure Prevention Plan under the HERO Act. This plan includes conducting daily health screenings for employees entering the workplace, among other requirements. However, EFFECTIVE FEBRUARY 10, 2022, employers’ plans are not required to include a mandate that all employees wear face coverings or masks. As explained in a recent Frankly Speaking, the NYS Department of Labor (“DOL”) updated its HERO Act model plan language to reflect the elimination of the state’s broader mask mandate applicable to all indoor public spaces. 

Updates to NYS COVID-Specific Paid Sick Leave

Sometimes, change leads right back to where you started, just more confused. This is certainly true of the NYS COVID-specific paid sick leave requirements. 

It’s not news to anyone that employers are required to provide COVID-specific paid sick leave benefits to employees under an order of quarantine or isolation. The number of paid leave days is generally based on headcount, with up to five days for smaller employers and up to 14 days for employers with 100 or more employees. What shouldn’t be, but often is, news to employers is that they are required to provide COVID-specific paid sick leave benefits to employees up to THREE TIMES. Well, at least that was the rule until February 2, 2022, when the DOL eliminated its previously issued guidance on the subject. With that change, there was no limit to the number of times an employer would be required to provide COVID-specific paid sick leave benefits to employees. 

Fortunately, the DOL has updated its FAQs to state once again that employees are eligible for COVID-specific paid sick leave benefits a maximum of three times. In addition, employers should be aware that: 

  • To qualify for COVID-specific paid sick leave benefits, an employee must be under an order of quarantine or isolation. 
  • The second and third orders of quarantine or isolation must be based on the employee testing positive for COVID-19. 
  • Also, an employee under a second or third order of quarantine or isolation must submit documentation to their employer from a licensed medical provider or testing facility attesting that the employee has tested positive for COVID-19, unless the employer administered the test. Therefore, employers are not required to accept the unverified results of an at-home COVID-19 self-test.
  • Employers must accept a properly completed “Affirmation of Quarantine” or “Affirmation of Isolation” as a valid order of quarantine or isolation. 
  • If an employee, not otherwise subject to an order of quarantine or isolation, is not allowed by their employer to work due to actual or potential exposure to COVID-19, the employer must continue to pay the employee their regular wages until either: 1) the employer permits the employee to return to work, or 2) the employee becomes subject to an order of quarantine or isolation. Once subject to an order of quarantine or isolation, the employee is then eligible for COVID-specific paid sick leave, or other COVID-specific paid leave benefits as required by law.
If you’re even more confused that ever, you’re not alone. Fortunately, the HR Compliance Experts team is up-to-date on the latest rules and we’re here to help you. If you have questions about compliance with state and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email HRAnswers@hrcexperts.com.
Was this HRCE Compliance Update helpful? Then let us know at HRAnswers@hrcexperts.com  Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at HRAnswers@hrcexperts.com, or call 585-565-3900.
 
Posted by members of the HR Compliance Experts team.

© 2022 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about HR Compliance Experts LLC.

Frankly Speaking: Did NY Gov. Hochul end workplace mask requirements for most employees, or NOT?

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EEs removing masks-sm2

Before you send me the angry email you’re composing in your head, let me explain (oh, go ahead, send him an angry email just for fun!).
 
As you already know, under one of NY Gov. Hochul’s previous orders, face coverings (just call them masks, face coverings sounds creepy) were required to be worn by employees, customers, and visitors in all indoor public places – including offices – unless proof of vaccination was required for entry. Then, yesterday Gov. Hochul announced the order would expire today, February 10, 2022. So now, most businesses, with certain exceptions, will no longer need to ensure that customers and visitors are masked. 
 
Many employers and employees celebrated the announcement (I have a feeling you’re going to ruin it for them), but something about the announcement bothered me. Then, it hit me (I hope it hurt!). The so-called “indoor mask mandate” that was about to expire and the NY HERO Act – which requires all employees to wear masks in the workplace – are two separate things! Why does that matter (you took the question right out of my head)? Because the HERO Act requirements are in effect until at least February 15, 2022.
 
On September 6, 2021, the NY commissioner of health designated COVID-19 as “a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.” That action triggered the HERO Act required all employers to implement their Airborne Infectious Disease Exposure Prevention Plans (you just triggered a cramp in my brain). Among the Act’s requirements was that every employer mandate all employees wear masks in the workplace – regardless of individual vaccination status – unless everyone on-site, not just employees, was fully vaccinated. Furthermore, unless addressed beforehand, employees would be required to continue wearing masks until at least February 15, 2022! 
 
Now, the Good News! NY updated the language in its HERO Act model plan as follows: 
  • EFFECTIVE FEBRUARY 10, 2022 Employees will wear appropriate face coverings in accordance with guidance from the State Department of Health or the Centers for Disease Control and Prevention, as applicable. Consistent with the guidance from the State Department of Health, if indoor areas do not have a mask or vaccine requirement as a condition of entry, appropriate face coverings are recommended but not required. It is also recommended that face coverings be worn by unvaccinated individuals, including those with medical exemptions, in accordance with federal CDC guidance. Further, the State’s masking requirements continue to be in effect for pre-K to grade 12 schools, public transit, homeless shelters, domestic violence shelters, correctional facilities, nursing homes, health care, child care, group homes, and other sensitive settings in accordance with CDC guidelines. New York State and the State Department of Health continue to strongly recommend face coverings in all public indoor settings as an added layer of protection, even when not required.
Employers should note that the acting commissioner of health may extend COVID’s designation as a highly contagious communicable disease beyond February 15, 2022. And, yes, that means employers may be required to keep their Airborne Infectious Disease Exposure Prevention Plans in effect. But, with this change in the model policy language, most employers now have the option of whether to require employees to wear masks at work.  
If you have questions about compliance with state and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email theexperts@hrcexperts.com.
Did you enjoyed Frankly Speaking? Then let us know at theexperts@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at theexperts@hrcexperts.com, or call 585-565-3900.

Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2022 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.