Well . . . this has certainly been a confusing few days, hasn’t it?
New Mask Guidance
Unless you’ve recently returned from a WiFi-free remote island (in which case, please remind us what it’s like to travel!), chances are you’ve heard that the CDC "relaxed" their mask requirement for fully vaccinated people. As of last week, “fully vaccinated people can resume activities without wearing a mask or socially distancing, except where required by federal, state, local. . . laws, rules, and regulations, including local business and workplace guidance.” Governor Cuomo quickly announced that New York will follow this guidance effective TODAY.
While this is certainly welcome news and a major step towards that elusive “return to normalcy”, employers still should proceed with caution as the new guidance likely raises more questions than it provides answers. How can you know if someone is fully vaccinated? Can you ask for proof of vaccination status? (Yes.) If a business has in-person customers, like a restaurant, should you continue following the “old” CDC guidance? (Probably.) Did anyone ask OSHA their thoughts on the matter? (Unclear, but OSHA did recently release a statement that they’re reviewing the CDC guidance.) Hey W+K, didn’t New York State recently pass legislation that kind of recommended the opposite approach? (Yes! That would be the HERO Act – read more below.) Are folks from eastern PA proud or embarrassed at how well Kate Winslet is nailing the accent in Mare of Easttown? (Now we’re just having fun . . . and seeing if you’re still reading.)
New York Passes the HERO Act
About that . . .
On May 6th, New York passed the “New York Health and Essential Rights Act” – the HERO Act. The HERO Act amends the New York Labor Law to: (1) require employers to prepare model safety plans and establish joint workplace safety committees with their employees, and (2) prohibit discrimination and retaliation against employees for exercising their rights under the law.
Safety plans: To help employers, the State will create and publish industry-specific model safety plans that establish minimum requirements for compliance. Employers can also adopt their own plans (so long as they meet or exceed the minimum requirements). Violators face penalties of $50 per day (capped at $10,000), attorneys’ fees, and liquidated damages up to $20,000. This rule applies to ALL employers, regardless of size. Let’s hope the State’s model safety plans account for the new federal guidance.
Safety committees: At least two-thirds of the committee members must be non-supervisory employees (chosen by non-supervisory employees). The committee is authorized to meet quarterly during work hours, review employer filed reports concerning workplace health and safety, and review and comment on health and safety policies. This rule applies to employers with 10 or more employees.
The HERO Act goes into effect in stages: the rule on safety plans is effective June 4 while the rule on committees is effective November 1. New York employers should start preparing for these measures now so that they’re compliant when the clock strikes midnight. Given the recent guidance from the CDC and New York, be very mindful of how you craft your rules regarding masks and vaccination status.
For non-New York employers (hello, NJ!), you don’t have to worry about the HERO Act but you still must be mindful of the Occupational Safety and Health Administration – better known by its acronym OSHA (as well any local workplace safety organization and/or legislation). Don’t forget that OSHA launched the National Emphasis Program (“NEP”) earlier this year. Pursuant to the NEP, OSHA promised increased enforcement against employers that put workers at risk of contracting COVID-19 or who retaliate against employees who complain about unsafe or unhealthy work conditions. Most recently, Liberty Tax Service of Lynn was smacked with a six-figure penalty for violations. Don’t be like Liberty Tax Service of Lynn. Make sure you have a compliant plan in place, communicate that plan with your employees and customers, and don’t retaliate!
In honor of the passing of tax day, a quick note on the IRS which finally released guidance regarding the COBRA premium subsidies created by the American Rescue Plan Act of 2021 (remember that one?). That guidance can be found here.
Like we said, not a whole lot going on of late. If you have any questions – or want to chat Mare of Easttown – don’t hesitate to reach out. Stay safe and speak with you soon.
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Established in 2019, New York City-based Weinstein + Klein is a boutique law firm focused on labor and employment law, business matters, and litigation. Weinstein + Klein works with businesses, individuals, and entrepreneurs to protect their legal interests. In addition to advising clients on employment matters and working with businesses to minimize their risk of litigation, Weinstein + Klein advises small businesses and start-ups on various business law matters. For more information about Weinstein + Klein, please visit www.weinsteinklein.com.