Frankly Speaking – Nothing says “Happy Holidays” like a new mask mandate!

Nothing fills the hearts of my team at HR Compliance Experts with holiday joy like a mid-December mask mandate! In fact, instead of an ugly sweater contest, I think we’re having an ugly holiday mask contest this year. (If you’re joking, you’re not funny, and if you’re serious, I hope your entire team quits the minute their holiday bonuses hit their bank accounts!) You should have been there when we learned that NY Gov. Kathy Hochul (not to be confused with Oregon Gov. Kate Brown (left), the undisputed ugly holiday mask champion for life) directed the state’s Department of Health (“DOH”) to issue a new mask mandate effective Monday, December 13, 2021. We were so excited that the walls of our virtual office were shaking! (OK, can we move this along, people have better things to do.)

Effective Monday, December 13, 2021, the mask mandate remains in effect through January 15, 2022, when the DOH will “reevaluate based on current conditions.” In her statement, Gov. Hochul cited a “winter surge” in COVID-19 cases and hospitalizations throughout NY State as the reason for the new mandate. According to the state’s recently released guidance, “masks will be required to be worn in all indoor public places unless businesses or venues implement a vaccine requirement.” Further, “new business and venue requirements extend to both patrons and staff,” and “businesses and venues that implement a mask requirement must ensure all patrons two years and older wear a mask at all times while indoors.”

The mask mandate defines an “indoor public place” as any indoor space that is not a private residence. That includes specific public settings, such as health care and adult care facilities, K-12 schools, correctional facilities, homeless shelters, public transportation centers and hubs, and “all indoor public places” not otherwise covered by the mandate. (So, in non-government speak, EVERYWHERE!) Violators of the mask mandate may be subject to a maximum fine of $1,000 per violation.

The DOH issued a list of FAQs to answer some common questions and help clarify (now that is funny!) potential issues. For example:

Q: Does this policy apply to office spaces?

A: Yes, the requirement applies to all non-private residences, including office spaces. If the office does not require proof of vaccination as a condition of entry, everyone must wear masks at all times regardless of vaccination status except when eating, drinking, or alone in an enclosed room.

Q: What about businesses covered under the NY HERO act?

A: Employers must continue to comply with the NYS Health and Essential Rights Act (NY HERO ACT)…For purposes of complying with the NY HERO Act, the Commissioner’s Determination constitutes Department of Health guidance related to face coverings, meaning employers must ensure their employees adhere to masking requirements or require proof of vaccination as a condition of entry into the business.

Q: What are the Details for a Business/Venue Proof of Vaccination Requirement?

A: Businesses and venues that implement a proof of vaccination requirement must ensure that anyone 12 years of age or older is fully vaccinated before entering indoors. Businesses/venues can accept Excelsior Pass, Excelsior Pass Plus, SMART Health Cards issued outside of New York State, full-course vaccination through NYC COVID Safe app, a CDC Vaccination Card, or other official immunization record.

In accordance with CDC’s definition, fully vaccinated is defined as 14 days past an individual’s last vaccination dose in their initial vaccine series—14 days past the second shot of a two-dose Pfizer-BioNTech or Moderna vaccine or 14 days past the one-shot Janssen/Johnson & Johnson vaccine. The State also accepts WHO-approved vaccines for these purposes. Parents and guardians can retrieve and store an Excelsior Pass or Excelsior Pass Plus for children or minors under their legal guardianship.

Q: How will these requirements be enforced?

A: It is our expectation that New Yorkers will understand the importance of following this requirement as we enter this holiday season, where a surge in cases is expected. Enforcement will be done by the local health departments, and the maximum civil penalty is a $1,000 fine.

Q: Who could receive the fine, the business or venue, or an individual in violation of the requirements?

A: Pursuant to regulation, individuals or business/venue entities that violate the determination are subject to a maximum fine of $1,000 for each violation. Local health departments can enforce these requirements.

Employers in NY State should also note that, if a mask policy is implemented for employees—i.e., if the employer does not require proof of vaccination to enter the workplace, so everyone must wear masks at all times regardless of vaccination status except when eating, drinking, or alone in an enclosed room—the employer must provide employees with an adequate supply of face coverings/masks at no cost to the employees.

My team and I will continue to burn the midnight oil (you realize no one under the age of 90 knows what that means, right?) to monitor the state’s guidance and FAQs and provide updates as appropriate. In the meantime, get busy with your own ugly holiday mask contest…and don’t forget to send us pictures!

If you have questions about compliance with state and federal regulations and mandates, or any of the services HR Compliance Experts offers, contact us at HRAnswers@hrcexperts.com, or call 585-565-3900.

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 HRAnswers@hrcexperts.com, or call 585-565-3900.

Posted by Frank Cania, president of 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.

Frankly Speaking – Are Small Businesses the Next Target of Biden’s Vaccine Mandate?

There are times when I really do not like being right about something (don’t worry, your wife says you’re not right very often, so don’t lose any sleep over it). As many of you read in my post yesterday, “OSHA Issues Long-Awaited COVID-19 Vaccine-or-Test Order” (you posted something without me? I guarantee it was dull and boring), the Occupational Safety and Health Administration (“OSHA”) released its COVID-19 Emergency Temporary Standard (“ETS”). As I pointed out, this ETS supports President Biden’s call for employers with 100 or more employees to require employees to be vaccinated against COVID-19 or wear a mask and submit to COVID-19 testing at least weekly.

Later in the afternoon, I spoke to Zachary Halaschak, an economics reporter at the Washington Examiner, about an article he was writing regarding the ETS. In his article, “Biden retreats on mandates in fear of being ‘Grinch that stole Christmas‘” Halaschak quoted me on my concerns that the 100 employee threshold is only the beginning and that “OSHA could say that the limit should be capped at a lower number like 50 or 25 employees.” (OK, Mr. I’ve been quoted in the Washington Examiner twice this year, remember, you need to get your head through the doorway.) Well, based on a headline I read this morning, “Biden admin considering vaccine mandate for businesses with fewer than 100 employees,” my concerns are well-founded. On page six of the almost 500-page ETS, it states, “OSHA is confident that employers with 100 or more employees have the administrative capacity to implement the standard’s requirements promptly, but is less confident that smaller employers can do so without undue disruption. OSHA needs additional time to assess the capacity of smaller employers, and is seeking comment to help the agency make that determination.” (Undue disruption? How about an UNMITIGATED CLUSTER F…well, you get the point.) I really don’t want to be right about this one.

While we wait to learn if the vaccine-or-test mandate will be extended to smaller employers, let’s look at the highlights (or maybe lowlights) of the ETS. As you read through the list, remember that applicable state and local laws may be different. Also, employers should contact an HR compliance expert (there’s that shameless plug again!) or their employment counsel to discuss their individual situations.

The ETS covers employers with 100 or more “employees” company-wide and includes part-time employees, temporary workers, seasonal workers, and minors. However, independent contractors are generally not counted.
Covered employers must develop, implement, and strictly enforce a mandatory vaccination policy. The policy must require all employees to be vaccinated, including new employees, and may offer the alternative to undergo regular COVID-19 testing and wear a face covering at work. The policy must also include a process for accommodations for medical or religious exemptions. In addition, employers may offer equivalent safeguarding such as 100% remote work.
Employers are not required to cover costs for COVID-19 testing for unvaccinated workers who choose the testing option. However, employers may be required to cover costs for testing pay for employees with medical or religious exemptions, based on other applicable laws, or under collective bargaining agreements or employment contracts.
All unvaccinated workers must begin wearing face coverings by December 5, 2021.
Also, effective December 5, 2021, employers must begin providing paid time off for workers to get vaccinated and recover from any vaccination side effects.
The deadline for workers to be fully vaccinated or submit to weekly testing and provide proof of a negative COVID-19 test at least weekly is January 4, 2022. The ETS defines “fully vaccinated” as two weeks after the second dose of a two-dose vaccine, such as Pfizer or Moderna, or two weeks after a single-dose vaccine, such as Johnson & Johnson.
Employers may face penalties of up to $13,653 for each serious violation. If an employer is deemed to have deliberately disregarded the mandate, it could face fines as high as $136,532 per violation.
This ETS does not apply to federal contractors or federal contractor workplaces covered by the Safer Federal Workforce Task Force guidance requirements, or workplaces covered by the emergency regulations issued on November 4, 2021, by the Centers for Medicare & Medicaid Services (CMS). These workplaces are subject to mandatory vaccination policies with no options for weekly testing.

Now, for the administrative requirements, covered employers must obtain proof of vaccination by one of the following:

A record of immunization from a healthcare provider or pharmacy;
A copy of the COVID-19 Vaccination Record Card;
A copy of medical records documenting the vaccination;
A copy of immunization records from a public health, state, or tribal immunization information system; or
A copy of any other official documentation verifying vaccination, with information on the vaccine name, date(s) of administration, and the name of the healthcare professional or clinic site administering the vaccine.

Employers should treat all proof of vaccination documentation as medical records, in a locked file, separate from the employees’ personnel files, and access limited to need-to-know only. Vaccination documentation should be maintained for the duration of the ETS. OSHA provides a small relief in that employers are not required to retain this documentation for OSHA’s typical 30-year retention period (oh, that’s so generous!).

Finally—well, not really, but for now—I’ll leave you with something you may find especially concerning. Upon request, employers must provide employees with their individual COVID-19 vaccination documentation and any COVID-19 test results by the end of the next business day. Further, an employee, or an employee representative, is entitled to data regarding the vaccination status of the entire workplace (that is pure cray-cray!).

After what you’ve read, if you’re an employer of fewer than 100 employees, what feedback would you give OSHA (can it include F-bombs for special emphasis?) to help them decide whether this mandate would cause “undue disruption” to your business?

If you have questions about compliance with state and federal regulations and mandates, or any of the services HR Compliance Experts offers, contact us at theexperts@hrcexperts.com, or call 585-565-3900.

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.

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

OSHA Issues Long-Awaited COVID-19 Vaccine-or-Test Order

There’s just no end to the COVID news over the last few days!

This morning, the Occupational Safety and Health Administration (“OSHA”) released its long-awaited COVID-19 Emergency Temporary Standard (“ETS”). This ETS is in response to President Biden’s call for employers with 100 or more employees to require their employees to be vaccinated against COVID-19 or wear a mask and submit to COVID-19 testing at least weekly.

In addition, the White House announced the following:

All unvaccinated workers must begin wearing masks by December 5, 2021, and provide proof of a negative COVID-19 test at least weekly beginning January 4, 2022.
The deadline for federal contractors to comply with similar provisions of the President’s Executive Order (“EO”) 14042 has been pushed out to January 4, 2022.
Employers are not required to pay for or provide COVID-19 tests for their employees unless required under state or local laws or as part of a collective bargaining agreement.

With this announcement, my team and I recommend that covered employers review their COVID-19 workplace policies – i.e., NY employers’ NYS HERO Act, Section 1, workplace safety plans – and make the appropriate updates by the deadlines set forth in the ETS. Further, we recommend employers check with their health insurance plan providers to determine if the cost of mandated weekly testing is covered or if it will be an out-of-pocket expense for employees. Lastly, employers should prepare to have difficult conversations with employees about this often heated and emotional topic.

Of course, there will be legal challenges to this federal mandate. However, as with so many other laws, rules, and regulations, employers should plan for full compliance and adjust those plans as necessary along the way.

This is a complex mandate with countless questions – many not yet thought of – and intersections with state and local laws and regulations. We’ll be doing our research over the coming days and weeks and will keep you updated along the way. So, buckle up and get ready for another bumpy ride!

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.

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

Frankly Speaking – NYS HERO Act has Employers Asking Again, WTH?

In my July 13, 2021 post, “NYS HERO Act has Employers Asking, WTH?” (I said it then, and I’ll say it again, there’s no “O” word, you need an “O” word if the acronym is HERO!), I wrote about Section 1 of the Act. At that time, most employers were aware of the requirement to adopt a safety and health plan by August 5, 2021, and distribute their plan to all employees within 30 days. Then, on September 6, 2021, COVID-19 was designated a serious public health risk under the HERO Act. As a result, employers were ordered to implement their plans (if this post gets any drier, the words will blow off the screen) and keep them in effect until at least October 31, 2021. ~~BTW, the state has not indicated whether that designation will be extended.~~ UPDATE: The NYS Commissioner of Health has extended the the designation of COVID-19 as a serious health threat until December 15, 2021. Therefore, employer safety and health plans must remain in effect through at least December 15, 2021.

That brings us to November 1, 2021, when Section 2 of the HERO Act goes into effect. Section 2 requires employers with 10 or more employees to allow employees to create a joint labor-management workplace safety committee (that sounds very union-like to me). Although similar committees are typical in a unionized environment, Section 2 applies to all employers covered by the HERO Act.

Like a toddler promising to pick up their toys before dinnertime, the NYS Department of Labor (“NYS DOL”) committed to providing updated employer guidance on Section 2 before Monday, November 1, 2021. Unfortunately, once again, it appears the toddler’s promise is more likely to be honored. (Come on, be fair, they still have one more day – Sunday – to release the guidance.) So, for now, I can at least explain some of the basics:

At the request of one or more of its employees, an employer of 10 or more must allow employees to establish and administer a joint labor-management workplace safety committee.
The term “employees,” as it relates to Section 2, is defined as all employees in the state of New York, except employees of the state, any political subdivision of the state, a public authority, or any other governmental agency (of course NYS doesn’t include itself in these things!).
The committee must include both employer and employee representatives, with at least two-thirds being non-supervisory employees.
The employee members of the committee must be chosen by and from the employer’s non-supervisory employees. The employer is prohibited from interfering with the selection of non-supervisory employees to serve on the committee.
Further, the committee must be co-chaired by a representative of the non-supervisory employees and an employer representative.
Section 2 also authorizes the creation of multiple committees representing geographically distinct worksites.

Under Section 2 of the HERO Act, workplace safety committees have authorization to:

Raise health and safety concerns, hazards, complaints, and violations to the employer, to which the employer must respond;
Review and provide feedback on any workplace health and safety policy required by the HERO Act or the workers’ compensation law;
Review the adoption of any workplace policy in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directives;
Participate in any site visit by any governmental entity responsible for enforcing safety and health standards;
Review any report filed by the employer related to the health and safety of the workplace; and
Hold a scheduled meeting during work hours, at least once per quarter.

The employer must also permit and pay safety committee designees to attend training on the function of worker safety committees, rights established under Section 2 of the HERO Act, and an introduction to occupational safety and health.

Unionized employers should note that different requirements apply if a collective bargaining agreement (“CBA”) is in place. Under a CBA, the collective bargaining representative will be responsible for selecting employees to serve as members of the committee. In addition, provisions of Section 2 may be waived by a CBA that explicitly references the section.

Like Section 1 of the HERO Act, Section 2 contains anti-retaliation provisions. These include, among other points, prohibiting the employer from retaliating against any employee who participates in the establishment or activities of a workplace safety committee. Violations of the anti-retaliation provision may result in penalties, including:

Assessment of civil penalties of $1,000 to $10,000;
Injunctive (legal) relief;
Liquidated damages of up to $20,000;
Payment of costs and reasonable attorneys’ fees to the employee;
An order to rehire or reinstate the employee to their former position, with the restoration of seniority, or an award of lost compensation, damages, and front pay in place of reinstatement.

Finally, one bright spot, an employer with an existing safety committee that meets the HERO Act’s requirements is not required to create an additional committee (wow, you really stretched to find that “bright spot!”).

Based on my experience working with small and mid-sized businesses, most are likely unfamiliar with joint employee/employer workplace committees of any type. Given that unfamiliarity, the complexity of the rules, and the significant financial penalties associated with noncompliance, preparation is critical to correctly responding when employees request to establish a workplace safety committee. Therefore, employers should work with an HR compliance expert (I’m sure any subliminal reference to your consulting firm, HR Compliance Experts, was purely coincidental and not a shameless plug) or their employment attorney when faced with employee requests to establish a workplace safety committee.

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.

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

Frankly Speaking – Are You Suffering From Employer Mandate Whiplash?

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:

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;
The requirement that those employers provide paid time off to employees to get vaccinated and recover from any adverse effects;
A COVID-19 vaccination mandate for all federal employees and contractors, without a testing option or a religious exemption; and
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!

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 at theexperts@hrcexperts.com, or call 585-565-3900.

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

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

Frankly Speaking – Please don’t kiss anyone goodbye!

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.

If you have questions about workplace harassment, or want information on the Sexual Harassment Prevention Training options or any of the services HR Compliance Experts offers, contact us at theexperts@hrcexperts.com, or call 585-565-3900.

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 at theexperts@hrcexperts.com, or call 585-565-3900.

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

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

Frankly Speaking – NYS HERO Act has employers asking, “WTH?”

Is anyone else tired of legislative acronyms? (Yes, and I can’t wait to see how you manage to connect legislative acronyms to Babe Ruth.) Almost no one, including the legislators, know what they stand for. Especially when the acronyms are ridiculously overused, like SAFE, CARE, FAIR, STOP, HELP, HOPE…well, you get the idea.

Some of the classics I found:

Robo COP Act – Robo Calls Off Phones Act;
FLY Act – Financial Literacy for Youth Act;
End GREED Act – End Government Reimbursement of Excessive Executive Disbursements Act;
APPLE Juice Act – Arsenic Prevention and Protection from Lead Exposure in Juice Act; and my favorite,
BABE RUTH Act – Build America Bonds Extension for Rural and Urban Transportation and Highways Act, which obviously has nothing to do with baseball. (That’s why you have a picture of The Babe…overplayed, but clever.)

Never ones to let go of a bad thing, New York lawmakers recently passed a novel, sweeping overhaul of the State’s workplace health and safety laws. The HERO Act – Health and Essential Rights Act (wait, I think you forgot something…there’s no “O” word, you need an “O” word if the acronym is HERO), is intended to “to protect employees against exposure and disease during a future airborne infectious disease outbreak.”

Among other things, the HERO Act (again, without an “O” word, it’s the HER Act) instructed the New York State Department of Labor (“NYSDOL”) to create written model airborne infectious disease exposure prevention standards to cover workplaces throughout NY. Specifically, the NYSDOL was tasked with creating separate model standards for, (1) industries representing a significant portion of the workforce, or those with unique characteristics requiring distinct standards, and (2) all remaining worksites not included in the specific industry standards.

The model standards, published July 7, 2021, are important for several reasons. Chief among them is that all employers in NY State – regardless of size, industry, or location – have 30 calendar days from that date to establish an airborne infectious disease exposure plan. With the clock ticking, and the August 6, 2021, deadline fast approaching, employers have an important choice to make: (1) commit the time, effort, and financial resources necessary to create and implement their own airborne infectious disease exposure plan that meets or exceeds the State’s minimum standards; or (2) adopt the appropriate industry-specific Model Airborne Infectious Disease Exposure Prevention Plan published by the NYSDOL.

For employers like me who think this is one of the easiest decisions they’ve had to make all year, the specific industries covered are: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail. (OK genius, where do they find these miracle model plans?) You can find the State’s model materials at, https://dol.ny.gov/ny-hero-act.

Another important point is that NY employers are not required to implement a plan in response to COVID-19. According to the Standards, they apply only to “an airborne infectious agent or disease designated by the Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health” and do not apply to “any employee within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases.”

With that in mind, all NY employers are required to:

adopt an industry-specific Model Airborne Infectious Disease Exposure Prevention Plan published by the NYSDOL – or create and implement a company-specific plan that meets or exceeds the State’s minimum requirements – no later than August 6, 2021;
provide a copy of the final plan to all workers – including all full- and part-time employees, independent contractors, staffing agency employees, and domestic workers – in writing within 30 days from the date the plan is implemented (or September 4, 2021, at the latest), and, going forward, immediately when new workers join the company, and to all workers and bargaining (union) representatives upon request;
post a copy of the company’s plan in each workplace and in a prominent location accessible to all workers;
include a copy of the company’s plan in the employee handbook; and
in the event of a future closure due to an airborne infectious disease, a written copy of the plan must again be provided in writing to all workers listed above – this time within 15 days after reopening.

Employers with remote workers are not required to adopt an Airborne Infectious Disease Exposure Prevention Plan for telecommuting or telework sites (such as employees’ homes) unless the employer can exercise control over the site.

Finally (yes, finally!), the State’s standards indicate that employers should review and update their plans as necessary to reflect new or modified tasks and procedures related to occupational exposure and to reflect new or revised worker assignments. Regularly reviewing and updating the company’s plan will help ensure you’re able to “promptly activate the worksite exposure prevention plan” in the event an airborne infectious disease emergency is declared.

At this point, I’m guessing you have a few acronyms in mind to describe your feelings about this latest mandate, and HERO isn’t one of them!

If you enjoyed Frankly Speaking, let me know! Also, feel free to share it with friends and colleagues.

Employment-related questions or issues? Does your employee handbook need to be updated? Contact me at frank@hrcexperts.com, or call 585-416-0751.

Stay well…

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

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

Frankly Speaking – NYS DOL Cancels All Employer Unemployment Insurance Charges…Indefinitely!

Here’s an announcement that came from left field (baseball! pitchers and catchers report to spring training in a few days…sorry, that’s not the announcement). On January 14, 2021, New York State Department of Labor (“DOL”) Commissioner Roberta Reardon signed an Order that temporarily cancels unemployment insurance (“UI”) charges for all employers.

According to the Order, retroactive to March 9, 2020, and going forward for an indefinite period, the State will use the general unemployment insurance account to cover all unemployment benefit payments. Also, regardless of whether the employer pays unemployment insurance taxes or directly reimburses the State for UI benefits paid to claimants, the Order cancels all charges made against employers’ accounts from March 9, 2020. (Did somebody in Albany get a printing press from Santa? Never mind, I don’t want to know.)

Under the federal Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), self-insured nonprofits, Native American tribes, and government agencies were to be reimbursed 50 percent of their unemployment charges from March 13, 2020, through December 31, 2020. Based on the Commissioner’s January 14, 2021 Order, the State will reimburse these employers the remaining 50 percent charged to their accounts during that period. Further, charges incurred beginning January 1, 2021, will be charged to the State’s general account¾not the employer¾indefinitely.

The NYS DOL has not indicated how it will reimburse eligible employers for UI charges incurred on or after March 9, 2020. However, the most likely scenario is a credit against future unemployment insurance benefit charges.

This Order also means the continuing flood of unemployment claims since March 9, 2020, will have no negative impact on private employers’ UI experience ratings. What we don’t know is whether these employers will be required to continue paying unemployment insurance taxes.

Employers should continue reviewing DOL charge statements, bills, and other documents on a timely basis and continue to protest claims as appropriate. Also, there has been an exponential increase in fraudulent UI claims. (Yep, I recently got a notice that I filed for UI benefits!) Employers who receive UI benefit notices for potentially fraudulent benefit claims should notify the NYS DOL at 888-598-2077, at https://webapps.labor.ny.gov/dews/ui/fraud/report-fraud.shtm, or by mail at NYS Department of Labor, Office of Special Investigations, Bldg. 12-Room 200, W.A. Harriman Campus, Albany, NY 12240.

If you enjoyed Frankly Speaking, let me know! Also, feel free to share it with friends and colleagues.

Employment-related questions or issues? Does your employee handbook need to be updated? Contact me at frank@hrcexperts.com, or call 585-416-0751.

Stay well…

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

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

Frankly Speaking – NYS Issues Guidance on COVID-19 Quarantine Paid Leave

Since being enacted on March 18, 2020, New York State (“NYS”) COVID-19 quarantine paid leave has been a constant source of confusion and consternation for many employers. Although the state’s Department of Labor (“DOL”) has issued some employer guidance, including guidance specific to the healthcare industry, many of the most problematic questions have gone unanswered.

As a review, NYS law requires employers to provide up to 14 days of paid sick leave (depending on employer size, net income, and whether it is a private or public employer) for employees subject to a mandatory or precautionary order of quarantine or isolation (a “COVID-19 Order”) issued by an authorized governmental entity. [Didn’t that expire at the end of 2020.] Unlike the federal Families First Coronavirus Response Act (“FFCRA”) paid leave mandate which expired on December 31, 2020 (extended as a voluntary program), the NYS COVID-19 quarantine paid leave mandate is ongoing.

Some of the more vexing questions have related to whether employees subject to COVID-19 Orders on multiple occasions are eligible for multiple periods of COVID-19 quarantine paid leave. For example, Stefon was subject to a 14-day COVID-19 Order in June 2020 because a household member was diagnosed with COVID-19. Stefon works for a large employer of more than 500 employees, so FFCRA paid leave was not available. Stefon’s employer was required to provide paid leave under the NYS COVID-19 quarantine paid leave law. On January 5, 2021, after testing positive for COVID-19, Stefon was placed under a 14-day COVID-19 Order. Continue reading

Frankly Speaking – January 23, 2021

Surprise!

Who doesn’t love a surprise? Well, other than my spouse, Becky. Especially when I say, “I’ve got a surprise for you!” and she needs to wait to get whatever it is.

Governor Cuomo and the state’s department of labor (“DOL”) have a surprise for many New Yorkers. As part of his executive budget proposal, the Governor calls for the DOL to significantly change how partial unemployment insurance (“UI”) benefits are calculated for individuals who work during a benefit week. But claimants won’t need to wait because the Governor instructed the DOL to immediately implement “emergency measures” regarding the new rule. [But if it’s in the Governor’s budget proposal, and the legislature hasn’t passed the budget, how can the new rule be implemented immediately?] Because the Governor said so, that’s all you need to know!

Historically, under NY law, UI benefits have been reduced by 25 percent for each day any work was performed. For example, Blake and Terry are neighbors, and both are unemployed. They were both hired by a small business, each working eight hours and earning less than $504 weekly. Blake worked all eight hours in one day, while Terry worked two hours, four days per week. Based on the number of days worked and weekly earnings, Blake’s weekly benefits were reduced 25 percent, and Terry’s were reduced 100 percent. That’s right, although they both worked the same number of hours, Terry was ineligible to receive any weekly UI benefits.

First, the good news, after decades of a statutory calculation that was, at best, a disincentive to working part-time during a job search, NYS made a change. Effective January 18, 2021, NYS implemented an “hours-based” calculation for partial weekly UI benefits. Also, as was the case under the previous rule, if a claimant’s gross earnings are more than $504 during a benefit week, they are not eligible for UI benefits that week regardless of the number of hours worked.

Now the not-so-good news. The new “hours-worked” approach is more complicated than the old “days-worked” system. Why? Because, once again, NYS is not in any way even remotely prepared for this change. From the guidance provided to date, it appears no modifications have been made to the state’s reporting system to allow claimants to report the number of hours worked. Instead, claimants must first convert hours-worked to days-worked, then report the number of days based on the state’s new calculations. SURPRISE!

It’s astounding that NYS would implement a significant overhaul to the UI reporting process – a process already replete with issues and errors – and expect claimants to essentially calculate their own partial benefits, using what is basically a series of if/then statements, without the assistance of any online tools.

Below is the basic process as I understand it:

Step 1: If the claimant’s gross earnings are more than $504, they are ineligible for UI benefits that week. If gross earnings for the week are $504 or less, continue to the next step.

Step 2: To determine the number of days-worked and whether the week’s benefits will be reduced, the claimant must convert the number of hours they worked during the week to days-worked, based on the following chart:

0 to 4 hours worked – report 0 days worked to UI – no reduction in weekly benefits.
5 to 10 hours worked – report 1 day worked to UI – benefits reduced by 25 percent.
11 to 20 hours worked – report 2 days worked to UI – benefits reduced by 50 percent.
21 to 30 hours worked – report 3 days worked to UI – benefits reduced by 75 percent.
31+ hours worked – report 4 days worked to UI – benefits reduced by 100 percent.

Notes:

If the total hours worked for the week includes a partial hour, the claimant should round up to the next whole hour. For example, if a claimant worked a total of four hours and 15 minutes during the week, they must round up to five hours and report one day worked.
If a claimant works more than 10 hours in a single workday, they should count only the first 10 hours. For example, claimant A worked two 12-hour shifts for a total of 24 hours. So claimant A counts only 10 hours of each shift, a total of 20 hours, and reports two days worked. However, although claimant B also worked 24 hours, they worked 6-hour shifts on four separate days. Therefore, claimant B must report three days worked.

Step 3: The claimant reports the total days-worked they calculated to NYS UI. (Claimants who choose the alternative of walking away muttering curse words under their breath should not expect to receive UI benefits that week.)

Employees working part-time and collecting partial UI benefits may turn to their employers with questions on the new calculation and reporting process. Employers and claimants can find information on the new partial benefits process at: dol.ny.gov/unemployment/partial-unemployment-eligibility.

Finally, employers participating in the state’s Shared Work program should be aware that, according to the NYS DOL, Shared Work is a separate program with its own rules, which are not affected by recent changes to the partial UI benefits process described above.

Confused? I’m not surprised.

If you enjoyed Frankly Speaking, let me know! Also, feel free to share it with friends and colleagues.

Employment-related questions or issues? Does your employee handbook need to be updated? Contact me at frank@hrcexperts.com, or call 585-416-0751.

Stay well…

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

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

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