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Did anyone else see this coming? [Maybe you should identify what “this” is before asking if anyone saw it coming.] Last month I wrote about the New York State Health and Essential Rights (“HERO”) Act in a previous post, and specifically, the Act’s mandate that all employers create and distribute an Airborne Infectious Disease Exposure Prevention Plan (the “Plan”) to employees. So, admittedly, I didn’t expect we would need to implement those plans less than a month later. But that’s not the only recent announcement that took many of us off guard. President Biden also dropped a big one on us last week! Let me explain [please!].  

HERO Act Plan Activation

While most of us were enjoying our last hot dogs of the summer on Labor Day, NY’s new chief executive, Gov. Kathy Hochul, directed the state’s Commissioner of Health to designate COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health.” Now, with that designation made, employers are compelled to take immediate action [OK, you’ve got my attention].

NY State now requires every employer to:

• Immediately review and update their Plan to ensure it incorporates current information, guidance, and mandatory requirements issued by federal, state, or local governments related to COVID-19;
• Finalize and promptly implement or “activate” their HERO Act Plan;
• Provide all employees with a verbal review on the specifics of the Plan;
• Provide each employee with a copy of the Plan; and
• Post a copy of your Plan in a “visible and prominent location” available to employees on all shifts.

Did you catch the third bullet point about providing “all employees with a verbal review on the specifics of the Plan?” [What the heck is that about?] Based on my discussions with a few attorneys, and confirmed by a representative from NY State, it means verbally explaining the Company’s Plan to your employees. [What?! You’re joking, right?] As part of the activation process, employers must provide employees with training – whether live, recorded, video-based, etc. – on the specific actions called for in the Company’s Plan. But that’s not all [of course not].

With the activation of the HERO Act plans, employers have continuing obligations to ensure their Plan is being effectively followed in the workplace. The State requires all employers to: 

• Designate one or more supervisory employees to enforce compliance with the Plan;
• Monitor and maintain the Company’s workplace exposure controls;
• Regularly check for updated information and guidance provided by the NY State Department of Health, the Centers for Disease Control, and other federal, state, or local government entities as it pertains to COVID-19; and
• Update their Plan to reflect any changes in the exposure control measures recommended by these entities.

Here’s the best part [do I detect a hint of sarcasm?], the designation of COVID-19 as a highly contagious communicable disease expires on September 30, 2021, unless ordered to continue by the NY State Commissioner of Health. [I wonder what the over/under is in Vegas?]

Hot Off the Press! NY State recently updated its HERO Act FAQs to provide some clarification on employer requirements. Here are a few highlights:

Q: Is an employer required to explain the plan to its employees?

A: Yes. A verbal review of the plan with all employees must be conducted, except need not be provided to individuals working for staffing agencies, contractors and subcontractors, or individuals delivering goods or transporting people to or from the worksite. A verbal review of the plan must also be conducted when a highly contagious communicable disease is designated by the Commissioner of Health as presenting a serious risk of harm to public health.

Q: What is meant by “verbal review”?

A: Employers must conduct a verbal review of the infectious disease exposure protection plan with their employees, but such review is not required to be in person. Employers should conduct the verbal review in a manner most suitable for the prevention of an airborne infectious disease, including via audio or video conference technology when applicable.  

Q: Will the Department of Labor be publishing HERO Act regulations?

A: Yes, the Department of Labor will be promulgating regulations for the HERO Act in accordance with the State Administrative Procedure Act.

Q: What enforcement mechanisms exist to address violations of the law?

A: Employers may be subject to daily penalties of $50 and violations ranging up to $10,000 for failure to abide by the plan’s requirements. 

Speaking of Employee Vaccination Mandates

On Thursday, September 9, 2021, President Biden announced a six-pronged, “comprehensive national strategy” to combat COVID-19. [Hey, weren’t you quoted in the Washington Examiner about this?] The President outlined, among other things:

1. His direction to the Occupational Safety and Health Administration (“OSHA”) to issue an Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to mandate COVID-19 vaccinations, or (b) weekly testing for their workforce;
2. The requirement that those employers provide paid time off to employees to get vaccinated and recover from any adverse effects;
3. A COVID-19 vaccination mandate for all federal employees and contractors, without a testing option or a religious exemption; and
4. The requirement that healthcare employers ensure their employees are fully vaccinated to receive Medicare or Medicaid reimbursements.

As is often the case with these announcements, there are far more questions than answers. However, here are a few things to consider while waiting for the ETS and DOL guidance:

Q: What should employers do if they haven’t implemented a mandatory vaccination policy?

A: While the Biden administration would like employers to act based on the announced vaccination/testing mandate framework, employers are not required to take any action now. However, if employers have not implemented a mandatory vaccination/testing policy, it may be an excellent time to begin discussions in preparation for the expected mandate.  

Q: When will OSHA issue the mandatory vaccination/testing ETS, and will covered employers be required to comply immediately?

A: Neither the federal Department of Labor (“DOL”) nor OSHA has provided a firm timeline, but early indications are that the ETS may be issued as quickly as the next four to six weeks. Employers should then have 30 to 60 days to implement the rule.    

Q: How much paid time off will employers be required to provide when employees get vaccinated and to recover from any side effects?

A: This one is a little more complicated [I hate complicated!]. Remember, the NY Covid-19 Vaccine Leave Law covers all employers in NY State. Under this law, all public and private sector employers must provide employees with up to four hours of paid time off at their regular wage rate, per injection, when getting a COVID-19 vaccination. So, unless the federal mandate is greater than the NY mandate, employers will continue to follow state law regarding PTO for COVID-19 vaccinations. Also, NY State currently requires employers to allow employees to use accrued paid sick leave available to them under the State’s Paid Safe and Sick Leave law (“PSSL”) to recover from any side effects caused by the COVID-19 vaccination. Now the complicated part [No! I’m already confused!]. According to the Administration’s announced plans, the ETS will also make PTO mandatory for recovery from COVID-19 vaccination side effects but has not indicated that employers will be allowed to require the use of existing PTO or sick time. Or, if the use of PTO or sick time is allowed, how will employees with no available PTO or sick time be paid?

Q: Who will be responsible for the cost of weekly COVID-19 testing, and will employers be required to pay employees for the time it takes for testing?    

A: More great questions with no real answers. [So, in other words, you have no freaking clue.] The Biden Administration indicates that they will expand the current number of retail pharmacy sites offering free COVID-19 testing to 10,000 pharmacies.  However, where free testing may not be readily available, the rules are in some cases situational, and in others, murky at best. Employers should also consider the potential for employee relations issues if employees, already frustrated and angry with the mandate, learn they are required to pay for weekly COVID-19 testing.

Whether employers must pay employees for the time necessary for weekly testing under a federal mandate is also unclear. If done during the employee’s worktime, the time spent testing is considered “time worked” and is compensable. Otherwise, it may depend mainly on the degree of control the employer has over the “when, where, and how” of the testing. Further, according to the DOL, the time spent being tested is likely compensable when testing “is integral and indispensable to (the employee’s) work during the pandemic.”

Confused? With no concrete details on what to expect from the upcoming ETS, we’re all living in the state of confusion. [I see what you did there…funny guy.] A lot can and likely will change between now and the time OSHA publishes the ETS. Stay tuned!

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

© 2021 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.

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

As we recently learned, Andrew Cuomo resigned his position as Governor of New York State. Although I started writing this post before Gov. Cuomo’s announcement, it still provides valuable insights into workplace sexual harassment.

Over the last few days, I’ve spent several hours reading and rereading the Report of Investigation into Allegations of Sexual Harassment by Governor Andrew M. Cuomo, and his response contained in the Position Statement of Governor Andrew M. Cuomo Concerning the Sexual Harassment Allegations Made Against Him. [Are you serious? Just the titles are longer than anything I want to read about a politician. You need a life!] These documents are fascinating to me [right, you and about five other people] from a professional perspective because I’ve spent more than a decade conducting workplace investigations. My work has spanned a broad spectrum of alleged behaviors and individuals in both the public and private sectors. I’ve conducted investigations in multiple states, and, acting as a subject matter expert, I’ve reviewed and provided feedback on investigations conducted by internal HR departments and attorneys. [OK, we get it, you’re well known, busy, and boring…what’s your point?]. With that somewhat unique perspective, I feel compelled to share some thoughts, not only on the specific documents and circumstances involving Gov. Cuomo, but also the broader points and take-aways from the situation.    

Like the individual at the center of this issue, I’m a slightly past middle-aged white male and proud of my Italian heritage. [Fortunately, that’s where the comparison ends!] I’ve also been critical of some of Gov. Cuomo’s decisions and policies. So, for objectivity and to help the reader see the broader scope [and hopefully stay awake], I’ve changed the scenario from one concerning Andrew Cuomo to one involving a family business owner in NY. Finally, please remember that the use of humor does not mean the issues are taken lightly.

Background

In 2018, Gov. Cuomo signed legislation requiring all employers, including the state, to provide annual interactive sexual harassment prevention training to all employees, including documented proof of attendance. Then, in August 2019, Gov. Cuomo signed additional legislation that further strengthened the state’s laws against sexual harassment, including:

• Amending the definition of an “employer” to include all employers in the state, including the state and its political subdivisions, regardless of size.
• Lowering the burden of proof for harassment claims from the federal standard – actions that ”would be considered severe or pervasive” – to actions that rise above “what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”
• Further defining unlawful harassment to include any activity that “subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of these protected categories,” and
• Extending the statute of limitations to file a sexual harassment complaint with the NY State Division of Human Rights (“DHR”) from one year to three years. 

Also, the state’s definition of sexual harassment includes “any unwanted verbal or physical advances, sexually explicit derogatory statements or sexually discriminatory remarks made by someone which are offensive or objectionable to the recipient, which cause the recipient discomfort or humiliation, [or] which interfere with the recipient’s job performance.”

Everybody loves a Cannoli, right?

Anthony Cannoli, CEO of Cannoli’s Cannolis!, and his family are well-known in the community. Anthony’s father founded and was the CEO of Cannoli’s Cannolis! for several years. Then, after a series of CEOs from outside the family, Anthony Cannoli stepped in and has run the family business for more than a decade. Fans and foes alike generally agree that Anthony Cannoli is proud of all he and his family have accomplished, and especially his Italian heritage. 

Earlier this year, 11 women alleged Anthony Cannoli sexually harassed them. Included were nine current or former employees and two women who alleged Cannoli touched them inappropriately at separate events he attended.

There were also hostile work environment allegations describing the culture of the Cannoli’s Cannolis! office as rife with fear and intimidation, “extremely toxic, extremely abusive.” Getting “yelled at in front of everyone” was commonplace, and the culture “was controlled largely by [Anthony Cannoli’s] temper, and he was surrounded by people who enabled his behavior.” Mr. Cannoli “makes all this inappropriate and creepy behavior normal like you should not complain,” and he knew “he could get away with it because of the fear that he knew we had.” “Everyone knows he’s very vindictive.”

Cannoli’s attorney rebutted that “his leadership style is results-oriented.” His “high expectations for his staff are the same irrespective of gender,” and that “the pressure and demands of that environment are not for everyone.” Further, Mr. Cannoli admits “he is informal with his staff and banters with all employees…” and compares his actions to those of Senator Chuck Schumer, who allegedly “describes his staff as ‘family,’ enjoys teasing [employees] about their relationship status and encourages them to get married and have kids.”

Clearly, Mr. Cannoli believes his actions were misunderstood and misrepresented by the complainants.

Cannolis are Italian!

Well-aware of the NY human rights laws regarding sexual harassment, Cannoli vehemently denied some of the allegations while admitting to many others, generally with one caveat or another:

• No offense was intended.
• She “processed what she heard through her own filter” (referring to a complainant he knew was a sexual assault survivor).  
• “On occasion, I do slip and say sweetheart, or darling, or honey,” so-called terms of endearment he used because he’s “old fashioned.”

Here’s where, as an Italian, I start to hit my forehead with the palm of my hand. Anthony Cannoli recorded a video in which he attempted to discredit claims of inappropriate touching by focusing on his self-described lifelong gesture of touching, holding, and kissing people’s faces:

• “I’ve been making the same gesture in public all my life.”
• “I actually learned it from my mother (roll picture of Mama Cannoli touching his face), and my father (now roll Papa Cannoli doing the same).”
• “It’s meant to convey warmth, nothing more.”
• “There are hundreds, if not thousands, of photos of me using the exact same gesture.”
• “I do it with everyone (roll photo montage of Cannoli holding and kissing the faces of children and adults from all walks of life, including famous people and political leaders), Black and White, young and old, straight and LGBTQ, powerful people, friends, strangers, people I meet on the street.”
• In response to an allegation that he kissed an employee on the forehead at the office Christmas party and said Ciao Bella (hello beautiful), “I don’t remember doing it, but I’m sure that I did.”
• “I do kiss people on the forehead. (Roll photo montage showing Cannoli doing what he describes.) I do kiss people on the cheek. I do kiss people on the hand. [OK, I’ve tried to keep quiet to this point, but the woman whose hand he’s kissing looks like she wants to punch him. Probably should have skipped that one!] I do embrace people. I do hug people – men and women.”

To that last point about hugging people, in response to one of the complaints of inappropriate touching, Cannoli told the investigators that the woman was the “initiator of the hugs,” while he was “more in the reciprocal business.” [What does that even mean?] But he “would go along” with the tight hugs because he didn’t “want to make anyone feel awkward about anything.”  

No more Cannoli

I hope you enjoyed the analogy of Anthony Cannoli. But since Andrew Cuomo resigned, I want to get back to his voice. In Gov. Cuomo’s lead-up to announcing his resignation, in one breath, he claimed, “I take full responsibility for my actions.” Then, in the next, he again attempted to excuse his behaviors. “I do hug and kiss people casually – women and men. I have done it all my life. It’s who I’ve been since I can remember.” [Heard it all before.] However, what came next was the most telling: “In my mind, I’ve never crossed the line with anyone. But I didn’t realize the extent to which the line has been redrawn.” [Wait, what? Did he seriously say that?] “There are generational and cultural shifts that I just didn’t fully appreciate. And I should have.”

Governor, it’s difficult for me to believe you weren’t acutely aware of the generational and cultural shifts. Those shifts appear to be, in large part, the basis for recent changes you made to the state’s human rights laws. [HE’S LITERALLY THE ONE WHO RE-DREW THE LINE!] Remember when you called the federal “severe or pervasive” standard for harassment claims “absurd” and lowered the burden of proof in NY State to behaviors beyond “petty slights or trivial inconveniences?” It’s part of the sexual harassment prevention training you mandated every employee receive annually. [I think he was busy that day. I read his assistant took the training for him and signed his name on the acknowledgment form.]

Surely, I’m not the first person to mention that, as an employer, all that needs to be shown is that you “knew or should have known” your behaviors were beyond “petty slights or trivial inconveniences.” [State and federal agencies love the “knew or should have known” concept!] Also, don’t forget about the mountain of case law showing the courts repeatedly rejecting “the notion that a harasser’s innocent intent will defeat liability.” Your “I’m Italian” defense won’t go far. Check out Carosella v. U.S. Postal Service (1987). In his defense against sexual harassment charges, Patrick Carosella stated, “I’m an Italian; I have a bad habit of maybe grabbing people…whether it’s a female or male.” [Spoiler Alert: He lost!] I’m guessing your “I’m old fashioned” and “I’ve been doing it my entire life” defenses would be equally ineffective.

Mr. Cuomo, I agree, there have been, and there will continue to be, significant generational and cultural shifts in our lifetime. Yes, I recognize them because it’s my responsibility as a business owner with employees and clients, and as an HR professional [isn’t it kinda his job too?]. But most importantly, I recognize them because I’m a son, brother, husband, father, grandfather, friend, and human being who respects the dignity of the people around me. As especially my daughter is fond of pointing out, I’m not perfect in this, or any area of my life. But I make no excuses and try to get a little better every day. I hope you will learn to do the same.  

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

© 2021 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.

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