In this update, we describe New York’s recent COVID-19 compliance updates, the Key to NYC, plus an appearance by the Department of Health’s Public Health and Health Planning Council (“PHHPC”) (as hard to write as it is to say) and a “welcome to the party” to Governor Hochul! . . . but first, a message from the President.
President Biden With Big Announcements For Big Businesses
Yesterday, President Biden announced that all employers with 100 or more employees will have to implement mandatory vaccination policies or require workers to undergo weekly testing. This is clearly a developing story – including whether the government has the power to even do this – but for now here’s what we know:
- Applies to all employers (yes, even the private sector) with 100 or more employees. This requirement is estimated to impact over 80 million workers.
- Mandatory vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement (regardless of employer size).
- Eligible employers will be required to provide employees with paid time off for the time it takes workers to get vaccinated or recover (something we’ve been answering questions on for a while).
Yeah . . . exit carrot and enter stick. We’re sure you have questions! We’re awaiting further guidance and clarity on these new rules – as well as legal challenges (get ready for some lawsuits). Stay tuned!
New York’s New Governor Not Wasting Time
In our last update we reminded you about New York’s Health and Essential Rights Act (the “HERO” Act) and how all Empire State employers are required to prepare model safety plans and create workplace safety committees. We also explained why employers need not actually implement any of these protocols unless and until New York designates COVID-19 as a highly contagious and communicable airborne infection disease that presents a serious risk of harm to the public. Well, on September 6, 2021, New York did just that.
Now what?
Now the HERO Act’s requirements are now fully triggered and employers must implement their written plans. Immediate action items include:
- Finalizing your HERO Act written plan, which must be provided to each employee.
- Posting a copy of the plan in a “visible and prominent location”.
- Providing training to any employees requesting or in need.
Guidance is still rolling out, so stay tuned for further updates. For example, we’re waiting to see how measures like vaccination, social distancing, and masking will play out.
The PHHPC Will Not Be Ignored
Last month, New York announced a mandatory vaccination policy for healthcare employers. Notably, this Summary Order was pretty narrow and only applied to general hospitals and long-term care facilities. However, in the past few weeks, the PHHPC approved emergency regulations that extend the vaccine mandate to include additional types of healthcare providers. The emergency regulations also specify that individuals are no longer exempt due to sincerely held religious beliefs. Who are these newly “covered entities” you ask? Certainly!
- general hospitals, nursing homes, and diagnostic treatment centers;
- dental clinics and dental dispensaries;
- certified home health agencies, long term home health care programs, acquired immune deficiency syndrome home care programs, licensed home care service agencies, and limited licensed home care service agencies;
- hospices; and
- adult care facilities.
Now, all employees of a “covered entity” must receive their first COVID-19 vaccine dose by September 27, 2021 (in general hospitals and nursing homes) or October 7, 2021 (everyone else). There is still a medical exemption available for any individual able to show that the “COVID-19 vaccine is detrimental to [their] health . . . based upon a pre-existing health condition.”
If you’re a “covered entity” then the time is now to ensure compliance with these emergency regulations. If you have not done so already, prepare a written policy that outlines your compliance with these new rules.
NYC Vaccination Mandate for Indoor Activities
Finally, a reminder that if you’re a covered business in New York you have until September 13, 2021 to comply with the “Key to NYC”. Compliance includes:
- Post the Vaccination Required Poster for Businesses in a place that is clearly visible to people before they enter your business.
- Become familiar with the accepted proofs of vaccination (NYC COVID Safe App, the Excelsior Pass, a CDC Vaccination Card or photo, a NYC Vaccination Record, or an official immunization record from outside NYC).
- Develop a written implementation plan that will be available for inspection, including how you will check the vaccination status of staff and customers before or immediately after they enter your establishment.
- Ensure your staff are fully vaccinated.
Covered entities include indoor dining (bars, nightclubs, and grocery stores with indoor dining), indoor fitness, and indoor entertainment (movie theaters, museums, sports arenas, etc.). Employees, but also contractors, are required to be vaccinated.
Like what you’re reading? Confused by what you’re reading? Just want to chat? We’re here for all of it. Let’s have a conversation.
Damien + Brian
ABOUT WEINSTEIN + KLEIN P.C.
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.