October 2021 New York HR Legal Updates

New York Minimum Wage Increase

Update Applicable to:
All employers in New York.

What happened?
On September 22, 2021, the New York State Division of the Budget issued a report on the minimum wage rate increase schedule for specific counties in New York.

What are the details?
The wage rates, scheduled to take effect December 31, 2021, on the report recommends increasing the minimum wage in the counties of Nassau, Suffolk, and Winchester counties to $15.00 per hour.

For more information, please see the links below:

Minimum Wage Increase Schedule

Article

What do employers need to do?
Employers should review the report and their current payroll policies to make any applicable changes to comply when the changes take effect.

October 2021: New York HERO Act COVID-19 Designation Extended

Update Applicable to:

All employers in New York.

What happened?

On September 30, 2021, the New York State commissioner extended the COVID-19 designation.

What are the details?

The designation of COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public”, originally to expire on September 30, 2021, has now been extended through October 31, 2021, by the commissioner.

For more information, please see the links below:

Designation Extension

Article

What do employers need to do?

Employers should note the extension to the designation to comply with the HERO Act’s requirements.  The law firm, Jackson Lewis P.C., advises that employers must continue to have their Airborne Infectious Disease Exposure Prevention Plans in place.


October 2021: New York Department of Labor Revises NY HERO Act Model Protocol

Update Applicable to:
All employers in New York.

What happened?
On September 23, 2021, the New York Department of Labor (DOL) updated their NY HERO Act model plan.

What are the details?
The revised NY HERO Act model plan now attempts to clarify when masks are required and specifically provides for two relevant circumstances:

  • For workplaces where all individuals on premises are fully vaccinated: Masks are recommended but not required.
  • For all other workplaces: Employees must wear appropriate face coverings “in accordance with guidance from the State Department of Health or the Centers for Disease Control and Prevention, as applicable.”

The revised model plan can be read here.

An article on the revised model plan can be read here.

What do employers need to do?
Employers should review the newly revised model plan for the NY HERO Act here and their current NY Hero Act plans to make any applicable updates to stay in compliance.

September 2021 New York HR Legal Updates

NYC Council Requires Human Service Contractors to Enter Labor Peace Agreements

Update Applicable to:

All employers in New York City (NYC) that contract or subcontract with NYC agencies.

What happened?

On August 18, 2021, an amendment to the administrative code of New York City to require labor peace agreements as a condition to city contracts.

What are the details?

The amended law, effective August 8, 2021, requires human services contractors and certain subcontractors to enter into labor peace agreements with labor organizations seeking to represent their employees rendering services under city human services contracts.

Covered employers must now submit certifications to NYC agencies along with their bid for a service contract or request for a renewal, which must be updated annually.  In addition, covered employers must now submit an attestation within 90 days of entering into a city service contract confirming the status of the labor peace agreement.

The amended law can be read here.

An article on the amended law can be read here.

What do employers need to do?

Employers should review the law here and their policies and processes for contracts/subcontracts with the city to stay in compliance with the new requirements.

September 2021 New York HR Legal Updates

New York City COVID-19 Directive “Key to NYC” Enacted

Update Applicable to:

Employers in New York City (NYC) in the indoor food services, indoor gyms/fitness, and indoor entertainment businesses.

What happened?

On August 16, 2021, Mayor de Blasio published Executive Order 225 with guidance being released by New York City on August 18, 2021.

What are the details?

The Order, currently effective, is enforceable starting September 13, 2021 and requires the covered entities that operate in any of the covered premises must comply by verifying the vaccination status of specified covered individuals. The businesses listed as covered by the Order are:

  • Indoor food service: includes restaurants, catering halls, event spaces, hotel banquet rooms, bars, nightclubs, cafeterias, grocery stores/food markets with indoor dining, coffee shops, and fast food or quick service with indoor dining. It also includes indoor dining establishments in hotels, colleges and universities, and malls (including food courts), as well as any on-premises catering services.
  • Indoor gyms and fitness: includes gyms, fitness centers, fitness classes, pools, indoor studios and dance studios, tennis facilities/bubbles, ice-skating rinks, and indoor fitness classes. This includes gyms and fitness centers in hotels and higher education institutions.
  • Indoor entertainment: includes movie theaters, music and concert venues, museums and galleries, aquariums and zoos, professional sports arenas, indoor stadiums, convention centers, exhibition halls, performing arts theaters, bowling alleys, arcades, pool and billiard halls, recreational game centers, adult entertainment, and indoor play areas.

Proof of vaccination must be obtained from those aged 12 and over (including patrons), full and part-time employees, interns, volunteers, and certain contractors. To note, individuals who are partially vaccinated are also considered covered individuals.

Individuals excluded from being required to show proof of vaccination include:

  • Suppliers and vendors who are making deliveries and pickups, and those who enter a location for the sole purpose of making necessary repairs.
  • Those under the age of 12.
  • Performing artists who are not residents of NYC and are not regularly employed by the entity; professional athletes/members of professional sports teams who are not residents of NYC but enter a premises for the purpose of competing; and individuals accompanying performing artists or a sports team/professional athlete as part of their regular employment and who are not residents of NYC.
  • Customers who do not have sufficient proof of vaccination to enter the indoor portion of a business’s premises for quick and limited purposes.

To enter a covered establishment, individuals over the age of 12 must demonstrate that they have received at least one dose of a vaccine authorized by the Food and Drug Administration (FDA) or the World Health Organization (WHO).

The City’s guidance provides the following acceptable forms of proof of vaccination:

  • NYC COVID Safe App
  • Excelsior Pass or Excelsior Pass Plus
  • A hard copy or photo of a CDC Vaccination Card
  • NYC Vaccination Record
  • An official immunization record from outside NYC or the U.S.

It is mandated that identification be checked at the same time as proof of vaccination for anyone appearing to be 18 years of age or older (excluding employees or members if identity of the person is known). Examples of acceptable forms of identification (ID) include: driver’s license, government ID card, IDNYC card, passport, school or work ID card (or a photo of the same).

Covered businesses must have a written plan available for inspection that describes how the business will check the vaccination status of staff and customers. Businesses must also post a visible sign that notifies employees and patrons about the vaccination requirement. The NYC Health Department has a model sign or businesses can create their own.

The order can be read here.

The guidance and poster can be read here.

An article on the order can be read here.

What do employers need to do?

Employers should read the Order and guidance to make the appropriate updates to their policies on vaccination verifications and any other applicable policies as well as display the poster provided by NYC.

New York’s HERO Act Now Fully Triggered

Update Applicable to:

All employers in New York.

What happened?

On September 6, 2021, Governor Hochul announced that the New York’s health commissioner designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health.

What are the details?

The announcement of this designation to COVID-19 triggers the HERO Act and now requires employers to activate their infectious disease exposure prevention plans (IDEPP) instead of only being adopting and distributing them.

The announcement can be read here.

Additional information and industry-specific templates for IDEPPs can be read here.

An article on the announcement is read here.

What do employers need to do?

Employers should review the announcement and the HERO Act information to implement their IDEPPs to stay in compliance with New York’s designation. The law firm, Seyfarth Shaw LLP, suggests that employers should nonetheless prepare to implement their safety plans, conduct employee training, and take other steps called for by the applicable protocols.

August 2021: New York Fair Chance Act Amendments Take Effect

Update Applicable to:
All employers in New York. 

What happened?
On July 15, 2021, the New York City Commission on Human Rights (NYCCHR) issued their updated Legal Enforcement Guidance on the Fair Chance Act (FCA) and Employment Discrimination. 

What are the details?
Effective July 29, 2021, the guidance makes important amendments to processes on employee hiring, current employee assessment, and employment decisions based on criminal history. 

The FCA amendments impact the sequence of events an employer must take to stay in compliance with a clarified “two-tiered” screening process. Employers must complete all non-criminal pre-employment screenings and they must be passed by the applicant before a conditional offer of employment is made. After a conditional offer of employment is made, the employer may request and review an applicant’s criminal history, which may only be considered in compliance with the individualized assessment, notice and consideration requirements of the FCA. The non-criminal and criminal background checks should be obtained separately from each other and at their specified points in the hiring process. Driving records should be reviewed after the conditional offer has been extended as they can contain  non-criminal and criminal information. 

Also explicitly stated is how a conditional offer of employment can be rescinded. The conditional offer to an applicant can be rescinded based on: 

  • The results of a criminal background check conducted in accordance with the requirements of the FCA;
  • The results of a medical examination when permitted by the Americans with Disabilities Act, as amended; or
  • Other information the employer could not have reasonably known before the conditional offer if the employer can show as an affirmative defense that, based on the new information, it would not have made the offer regardless of the results of the criminal background check. 

The guidance does provide clarification regarding the consideration or inquiry of “non-convictions” which are characterized as “completely protected.” “Non-convictions” that may not be considered include, but are not limited to: 

  • Cases where no criminal charge was brought, or the prosecutor declined to prosecute following an arrest.
  • Criminal charges that were resolved in favor of the individual, including when 1) all charges were dismissed; the individual was acquitted on all charges; or 2) the verdict was set aside or the judgment was vacated by the court and no new trial was ordered, nor is any appeal by the prosecution pending.
  • Cases that were adjourned in contemplation of dismissal (unless the order to adjourn in contemplation of dismissal is revoked and the case is restored to the calendar for further prosecution).
  • Cases when the person is found to be a youthful (juvenile) offender.
  • Convictions that have been sealed.
  • Cases that resolved in a conviction for an act defined by New York law as a violation, rather than a misdemeanor or felony, even if not sealed, including but not limited to trespass; disorderly conduct; failing to respond to an appearance ticket; loitering; harassment in the second degree; disorderly behavior; or loitering for the purpose of engaging in a prostitution offense.
  • Cases that resulted in a conviction for a non-criminal offense under the laws of another state. 

The restrictions against consideration of non-convictions do not prohibit inquiries regarding or consideration of an applicant’s driving or motor vehicle record. 

More significant changes were made to the application of FCA factors to the review, notice and consideration process to an employer’s consideration of open, pending criminal arrests and charges of applicants, and to consideration of the criminal convictions of current employees. The NYC Fair Chance Factors that are to be applied when considering pending criminal charges of applicants or employees, or convictions of current employees, are as follows: 

  • The policy of New York City to overcome stigma toward and unnecessary exclusion from employment of persons with “criminal justice involvement”.
  • The specific duties and responsibilities necessarily related to the employment held by the person.
  • The bearing, if any, of the criminal offense or offenses for which the applicant or employee was convicted, or that are alleged in the case of pending arrests or criminal accusations, on the applicant or employee’s fitness or ability to perform one or more such duties or responsibilities.
  • Whether the person was 25 years of age or younger at the time of occurrence of the criminal offense or offenses for which the person was convicted, or that are alleged in the case of pending arrests or criminal accusations, which shall serve as a mitigating factor (emphasis added).
  • The seriousness of the offense or offenses.
  • The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.
  • Any additional information produced by the applicant or employee, or produced on their behalf, regarding their rehabilitation or good conduct, including but not limited to history of positive performance and conduct on the job or in the community. 

The amended guidance is here

Articles on the amendments are here and here. 

What do employers need to do? 

Employers should review the amended FCA guidance as well as their workplace policies to make any applicable updates to their screening and hiring processes to remain in compliance. The law firm, Littler Mendelson P.C., suggests that employers should consult employment law counsel versed in the FCA for assistance with these action items to ensure their background check processes comply with the FCA as amended.

July 2021: Reminder: New York Hero Act Model Standards Available

The NY HERO Act requires the state’s Department of Labor (DOL) to create workplace safety standards for airborne infectious disease prevention. Employers are required to either adopt the DOL-issued standard that is relevant to their industry and workforce or to establish their disease prevention plan that must satisfy the minimum requirements set by the legislation.

Employers will be required to post the plan they choose in the workplace and any employers who distribute an employee handbook must include the plan in their handbook and must distribute the plan to all employees after re-opening following a closure due to an airborne infectious disease. Businesses permitted to operate as of the effective date of the legislation must distribute the plan to existing employees as well.

Employers can find the model workplace standards, sorted by industry, at the DOL’s webpage, here.

May 2021 New York HR Legal Updates

New York City Passes Executive Order on Sexual Harassment Reporting Requirements

Update Applicable to:
All employers contracting “human services” in New York, New York.

What happened?
On March 3, 2021, Executive Order No. 64 was passed by New York City Mayor de Blasio.

What are the details?
Executive Order No. 64 was passed into law and took effect on March 3, 2021. The order introduces new sexual harassment reporting requirements on all employers that contract with New York City agencies for “human services.”

“Human services” is defined as services provided to third parties, including social services such as day/foster/home care, homeless assistance, housing and shelter assistance, preventive services, youth services, and senior centers; health or medical services; legal services; employment assistance services, vocational and educational programs; and recreation programs. (See N.Y.C. Admin. Code § 6-129(c)(21).)

With this new order, covered organizations are required to make the following information available to the NYC Department of Investigation (DOI):

  • A copy of the organization’s sexual harassment policies, including complaint procedures.
  • A copy of any complaint or allegation of sexual harassment or retaliation brought by an employee, client, or any other person against the chief executive officer or equivalent principal of the organization, within 30 days of receipt of the complaint.
  • A copy of the final determination or judgment regarding any complaint or allegation.
  • Any additional information the DOI requests to effectuate its review of any investigation and determination.

The information above must be uploaded through the city’s Procurement and Sourcing Solutions Portal (PASSPort). The copies of the complaints or allegations that are raised must be provided to the DOI via the PASSPort system within 30 days of receipt. Any names or other identifying information of individuals, other than the accused that are mentioned in any complaint, final determination, or judgment can be redacted. The DOI reserves the right to request the information that was redacted from the covered organizations after the redacted information is uploaded.

The DOI will be reviewing the complaints or allegations, and gather their findings to provide to the city agencies for their considerations on any contract renewals or changes.

In addition, providers will be required to certify annually in writing that they have filed all required reports or that they have no information to report. While unclear, law firms advise the employer’s sexual harassment policy to be uploaded even in the absence of a complaint. 

The executive order can be read here.

Articles on the order can be found here and here.

More can be read about the PASSPort system here.

What do employers need to do?
To ensure compliance with the new order, covered organizations should revise their sexual harassment policies and implement training as needed. Any employers contracted with New York City agencies should also communicate with them to ensure they are complying when they update their contacts.

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New Workplace Safety Requirements of New York Employers

Update Applicable to:
Employers operating within New York State.

What happened?
On May 5, 2021, Governor Cuomo signed the NY Health and Essential Rights (HERO) Act, passing it into law. However, the governor promised changes to the legislation in the coming days.

What are the details?
The NY HERO Act will require the state’s Department of Labor (DOL) to create workplace safety standards for airborne infectious disease prevention. Employers are required to either adopt the DOL-issued standard that is relevant to their industry and workforce or to establish their disease prevention plan that must satisfy the minimum requirements set by the legislation. Employers will be required to post the plan they choose in the workplace and any employers who distribute an employee handbook must include the plan in their handbook and must distribute the plan to all employees after re-opening following a closure due to an airborne infectious disease. Businesses permitted to operate as of the effective date of the legislation must distribute the plan to existing employees as well.

Employers will be required to permit employees to form a joint labor-management workplace safety committee with employee and employer designees. The committee must be allowed to raise workplace health and safety concerns, review employer workplace safety policies, participate in government site visits relating to workplace health and safety standards, and attend committee meetings and trainings related to workplace health and safety standards. Each workplace that employs the legislation also includes anti-retaliation protections for employees who feel that the workplace is not safe or not adhering to the relevant plan.

The amendments clarify that employers will not need to create a disease prevention plan until 30 days after the DOL creates its model industry-specific protocols.  Additionally, employers would have 60 days following the DOL publication to provide such safety protocols to their employees. The window for the DOL to publish their standards was also extended an additional 30 days, to July 5, 2021. It is unclear how soon we can expect the NY DOL to have the example standards published. It appears that employers will not be required to establish their disease prevention plan until the DOL issues its standards.

Employees will need to provide an employer with 30 days’ notice and an opportunity to cure a violation before bringing a civil action unless the employee can show that the employer has demonstrated an unwillingness to cure a violation in bad faith. The employee may not bring civil action if the employer cures the alleged violation, as well as if six months pass from the date the employee had knowledge of the violation.

The Act can be found here.

Articles covering the bill and the amendments can be found here and here, respectively.

What do employers need to do?
Employers should monitor the NY DOL’s website (here) for the published industry standards. Then adopt the standards as they are published. Employers who wish to create own standards should adopt the DOL standard in the meantime until own standard is finished and ready to be implemented.

April 2021 New York HR Legal Updates

New York Updates Health Care Personnel COVID-19 Guidance

Update Applicable to:
New York employers operating within the healthcare industry.

What happened?
On April 1, 2021, the New York Department of Health (NY DOH) issued an update to its prior guidance for health care personnel on returning to work following COVID-19 exposure.

What are the details?
The information contained in the updated guidance supersedes any other previous guidance related to fully vaccinated, asymptomatic healthcare personnel (healthcare employees) returning to work after exposure to COVID-19 or travel. Per the update, all healthcare facilities are expected to know which of their staff has been vaccinated. Any vaccinated staff who did not receive the vaccine through their workplace must inform the facility of their vaccination status through the same process the facility uses to maintain information on annual influenza immunizations and tuberculosis tests.

Asymptomatic health care employees who have had “exposure to” or been in “contact” with a confirmed or suspected case of COVID-19 (as defined in the updated guidance), may return to work after completing a 10-day quarantine without testing if no symptoms have been reported during the quarantine period, provided these conditions are met:

  • Health care employees must continue daily symptom monitoring through day 14;
  • Health care employees must be counseled to continue strict adherence to all recommended non-pharmaceutical interventions, including hand hygiene, the use of face masks or other appropriate respiratory protection face coverings, and the use of eye protection;
  • Health care employees must be advised that if any symptoms develop, they should immediately self-isolate and contact the local public health authority and/or their supervisor to report this change in clinical status and determine if they should seek testing.
  • Health care employees exposed to COVID-19 who are working in nursing homes or adult care facilities certified as Enhanced Assisted Living Residences (EALR) or licensed as Assisted Living Programs (ALP) who complete the 10-day quarantine cannot return to their workplace (must furlough) through the 14th day after exposure unless they meet the vaccination or recent SARS-CoV-2 recovery criteria below.

There are further guidelines that may be read in the provided article for the following circumstances:

  • Asymptomatic Health Care Personnel Exposed to COVID-19 Who Are Recovered From SARS-CoV-2
  • Guidelines for Asymptomatic Health Care Personnel and Travel

An article providing a detailed breakdown of the guidelines can be found here.

The guidelines can be found here.

What do employers need to do? New York employers should update their workplace policies as needed to reflect the changes permitted by the state.

March 2021 New York HR Legal Updates

New York Passes COVID-19 Vaccination Paid Leave

Update Applicable to:
All New York Employers.

What happened?
The New York State Senate unanimously voted 62-0 on March 1, 2021, to grant both private and public employees up to four hours of paid leave per injection to receive the COVID-19 vaccine.

What are the details?
The bill amends the New York Labor Law (NYLL) to add Section 196-C, requiring that all private employers provide their employees with a “sufficient period of time,” up to four hours, of paid leave to receive the COVID-19 vaccine. The leave is four hours per injection, meaning employees who receive a two-dose vaccine can potentially be entitled to up to eight hours of paid time off under the law. The leave cannot be charged against any other leave to which the employee is entitled, including the recently enacted paid sick leave requirements. Employees may also use the

The entire period of leave must be provided at an employee’s regular rate of pay. The requirements of the law, however, can be waived by a collective bargaining agreement if it explicitly references NYLL 196-C. The bill also forbids an employer from discriminating against, retaliating against, or interfering with an employee exercising their rights under the law, including requesting paid leave to be vaccinated.

The requirement to provide this leave will expire on December 31, 2022.

The information was provided by Fisher Phillips and Littler Mendelson P.C., whose articles can be found here and here, respectively.

What do employers need to do?
New York employers should read the above information and update their workplace leave policy to accommodate employee’s vaccine needs.

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New York City Issues Final Rule Regarding Religious and Race Hairstyle Discrimination

Update Applicable to:
All New York City Employers.

What happened?
Effective January 30, 2021, the New York City Commission on Human Rights (“Commission”) amended Title 47 of the Rules of the City of New York to provide an example and add exceptions to clarify protections based on race, creed, and religion, related to hair textures, hairstyles, including the use of head coverings, and hair lengths, which are commonly or historically associated with a particular race, creed, or religion.

What are the details?
This Final Rule codifies much of the Commission’s enforcement guidance that was released in 2019 regarding race-based hairstyle discrimination. The Final Rule also sought to codify that hair textures, hairstyles, head coverings, and hair length can be elements of an individual’s religious practices such that discrimination based on hair can function as a proxy for religious discrimination and constitute a form of unlawful stereotyping.

The Final Rule provides that, while a “legitimate health or safety concern” can provide a defense against a discrimination claim, “speculative health or safety concerns may not be used as a pretext for religious discrimination.”  Therefore, the Commission will consider the following factors in determining whether a restriction or prohibition constitutes a pretext for discrimination or is based on legitimate health or safety concerns:

  • the nature of the articulated health or safety concern;
  • whether the restriction or prohibition is narrowly tailored to address the concern;
  • the availability of alternatives to the restriction or prohibition; and
  • whether the restriction or prohibition has been applied in a discriminatory manner.

Notwithstanding the possible defense for health or safety concerns, the Final Rule unequivocally states that “it is not a defense that a restriction or prohibition is based on customer preference or based on a perception that a person’s hair is ‘unprofessional,’ a ‘distraction,’ or inconsistent with a covered entity’s image.”  Thus, the Commission rejects the notion that a “professional image” can serve as an undue hardship defense against a religious discrimination claim based on religious hairstyle or head coverings.  The Commission further rejects “trivial or minor losses of efficiency” as a possible undue hardship defense in this context.

More details about the final rule may be found here.

What do employers need to do?
New York City employers should review the above information and update any applicable workplace practices that may violate this final ruling.