Has the Workplace Returned to Pre-Pandemic? Plus, Other Important Updates for Employers.March 1, 2022
As the CDC, states and localities relax their COVID-19 mandates, are employers now turning their attention to pre-pandemic workplace issues? Here are the top COVID-19 and non-COVID-19 workplace issues employers should have on their radar.
Mayor Adams Announces Plan to Lift Key to NYC Requirements on March 7, 2022, But Vaccine Requirement for Employers Remains in Place
On February 27th, New York City Mayor Eric Adams announced that due to the improving COVID-19 data in the city, “as long as COVID indicators show a low level of risk and we see no surprises this week,” the city’s Key to NYC vaccination requirements to enter indoor dining, fitness and entertainment spaces will be lifted on March 7th.
Mayor Adams clarified that all other vaccine mandates in New York City, e.g., the requirement that private sector workers be vaccinated to work on-site in the city, will remain in place at this time. Our prior alert discussing this vaccination mandate is available here. In short, the city plans to lift its requirement that customers be vaccinated to enter indoor spaces, but as of now, all workers (including those at dining/gym/entertainment locations, and other businesses) must still be vaccinated.
Mayor Adams’ announcement is available here.
CDC Updates Masking Guidance Based on New COVID-19 Community Levels
On February 25th, the CDC announced a move to COVID-19 Community Levels, a new designation system intended to help communities decide what prevention steps to take with respect to COVID-19, including with respect to masking. Levels can be low, medium, or high and are determined by looking at hospital beds being used, hospital admissions, and the total number of new COVID-19 cases in an area.
The CDC recommends that while people may choose to wear a mask at any time, individuals in high community levels should wear a mask indoors in public. The CDC does note that regardless of a community’s current level, people with symptoms, a positive test, or exposure to someone with COVID-19 should wear a mask, and those individuals at high risk for severe illness may need to continue to take additional precautions. Businesses should consider the community level for their workplaces when determining masking and other COVID-19 policies, as well as any applicable federal, state and/or local requirements.
As of the date of this alert, New York County is listed as a low community level.
NY HERO Designation Extended Until March 17th
On February 15th, the New York State Commissioner of Health further extended the designation of COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health until March 17, 2022. At that time, the Commissioner will determine whether to extend the designation yet again. Thus, employers must continue to implement their NY HERO plans until at least that date.
As discussed in our prior alert, following the lifting of the statewide indoor business mask-or-vaccine requirement, New York State revised the NY HERO Act Model Airborne Infectious Disease Exposure Prevention Plan to reflect that indoor masking is “recommended, but not required,” and “[i]t is also recommended that face coverings be worn by unvaccinated individuals, including those with medical exemptions.” Thus, employers who have already revised, or plan to revise, their mask requirements should consider revising their NY HERO plans accordingly. The Commissioner’s most recent designation is available here.
California’s 2022 COVID-19 Supplemental Paid Sick Leave
California has new COVID-19-related supplemental paid sick leave requirements which went into effect February 19, 2022. Though California employers may be familiar with the state’s 2020 and 2021 versions of COVID-19 paid supplemental sick leave which required California employers of at least 26 employees (“California Employers”) to provide up to 80 hours of sick leave for qualifying reasons, the new 2022 COVID-19 Supplemental Paid Sick Leave (“SPSL”) splits the 80-hour entitlement into two separate banks, up to 40 hours each, as follows:
- Up to 40 hours total for the following reasons:
a. The employee is subject to quarantine or isolation period related to COVID-19, has been advised by a healthcare provider to quarantine due to COVID-19, and/or is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
b. The employee is caring for a qualifying family member who is either subject to a quarantine or isolation related to COVID-19 or who has been advised by a healthcare provider to quarantine due to COVID-19.
c. The employee is caring for a qualifying child whose school or place of care is unavailable due to COVID-19 on the premises.
d. The employee is attending a vaccine appointment or cannot work or telework due to vaccine-related side effects (limited to 3 days/24 hours absent adequate documentation of need for additional time).
- Up to an additional 40 hours if an employee or a family member for whom the employee is providing care tested positive for COVID-19.
In general, California Employers may limit SPSL for part-time employees for each bank of leave to the number of hours the part-time employee works in a week.
This new leave entitlement is retroactive to January 1, 2022 through September 30, 2022 and is only available where the employee cannot work or telework.
California Employers, including employers based in other states who have at least 26 employees and at least 1 employee in California, should review the requirements of the SPSL, update their policies to ensure compliance with these new requirements and look out for guidance from the state on implementation.
The bill text for 2022 COVID-19 Supplemental Paid Sick Leave can be found here.
The mandatory 2022 COVID-19 Supplemental Paid Sick Leave poster can be found here.
Frequently Asked Questions on the 2022 COVID-19 Supplemental Paid Sick Leave are available here.
NYS Publishes Required Notice Advising Employees of New Whistleblower Protections
In mid-February, the New York State Department of Labor published the Notice of Employee Rights, Protections, and Obligations Under Labor Law Section 740, available here. Employers must post this Notice in the workplace to inform employees of their rights under New York State’s amended whistleblower law, which went into effect on January 26, 2022.
The amendments significantly expand the scope of protected whistleblowing activity by removing the prior requirement that there actually be a violation of law. Now, covered individuals are protected when they “reasonably believe” an employer’s activity violates a law, rule or regulation. The whistleblower protections now also, among other things, extend to independent contractors and former employees, reduce the obligation to notify the employer before disclosing alleged violations to a public body, expand the types of actions that can be considered retaliation, and extend the statute of limitations and remedies available to whistleblowers.
Employers should review their whistleblower policies to ensure their policies do not conflict with the State’s new protections, and now post the Notice conspicuously in an easily accessible and well-lighted place customarily frequented by employees and applicants for employment. If a workplace is remote or has remote workers, employers should also publish the Notice to an intranet site or other electronic resource where other notices are published to employees.
NYS Upcoming Wage Parity Law Requirements
The New York Legislature enacted the Wage Parity Law (“WPL”), Section 3614-c of the New York State Public Health Law, in 2011, increasing the compensation of New York’s home health care workers who provide Medicaid-reimbursed work in New York City and the counties of Suffolk, Nassau and Westchester. The WPL was the subject of substantial amendment and revision in 2020, including updates to certification and compliance requirements as well as additional penalties for non-compliance.
Pursuant to such amendment and revision, and effective June 1, 2022, annual certifications submitted by Licensed Home Care Services Agencies (“LHCSA”), Fiscal Intermediaries (“FIs”), or other third parties that are subject to the requirements of the WPL must include an annual statement of wage parity hours and expenses on New York Department of Labor Form LS-330, available here, and must be accompanied by an independently-audited financial statement verifying such expenses and New York Department of Labor Form LS-301, available here.
Covered employers should review the Wage Parity Compliance and Certification Guidance issued by the New York Department on May 11, 2021 explaining the implementation of these new requirements, available here.
Keep an eye out for further alerts from Herrick applicable to employers with a presence in New York, particularly with respect to New York State’s new electronic monitoring law and New York City’s new pay transparency law, which both go into effect in May 2022.
Please contact a member of Herrick’s Employment Group with any questions.
Carol M. Goodman at +1 212 592 1465 or [email protected]
John H. Chun at +1 212 592 1546 or [email protected]
K. Heather Robinson at +1 973 274 2006 or [email protected]
Beth C. Khinchuk at +1 212 592 1571 or [email protected]
Meaghan Roe at +1 212 592 1632 or [email protected]
Silvia Stockman at +1 212 592 1583 or [email protected]
© 2022 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.