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!
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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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