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  • NYS & OSHA Update COVID Office Regulations

    As expected, following recent changes in the Centers for Disease Control (“CDC”) general COVID guidance, and New York achieving its 70% at least begun vaccination threshold, New York State (“NYS”) and the federal Department of Labor’s Occupational Safety and Health Administration (“OSHA”) have updated their COVID office regulations. Beginning now in New York, most businesses are no longer required to follow the industry specific reopening guidelines on the New York Forward website, including the guidance on capacity restrictions, social distancing, cleaning and disinfecting health screenings, and contact information for tracing. However, unvaccinated employees and others in the workplace will still need to wear masks and socially distance. Certain industries will need to continue to adhere to the COVID office regulations, including large venues, schools grade 12 and under, public transit, homeless shelters, correctional facilities and healthcare sites. Also, the NYS Departments of Labor and Health are working on industry-specific general airborne infectious disease safety standard templates pursuant to the NYS HERO Act, which may add separate requirements to the workplace. OSHA, in its newly issued emergency temporary standard, advised that most workplaces where workers are fully vaccinated no longer need to provide any COVID safeguards. To the extent known, the guidance advises that unvaccinated workers, customers, and visitors should wear masks and remain socially distant. OSHA made an exception though for health care workers whose employers must have a virus protection plan in place as to COVID-safety measures (written for those with more than 10 employees), including daily masks/PPE, ventilation, social distancing and screening of employees, patients, and visitors for COVID symptoms, and must record and report COVID cases among workers. The rules also provide health care workers with paid time off for COVID-related absences, including those getting vaccinated and recovering from any COVID shot symptoms. The health care employers with more than 10 employees also must remove COVID positive, suspected positive, or symptomatic employees from the workplace and provide them pay up to $1,400.00 a week for two weeks (or longer if they are sick). Eligible employers may voluntarily opt into the federal FFCRA to receive tax credits for such payments. Health care employees can go maskless indoors only in “well-defined areas where all employees are fully vaccinated” and where COVID-positive people are unlikely to be. The health care employer rules will be in place for six months once they become effective shortly upon publishing in the Federal Register. Health care employers will have two weeks to comply with the new rules, although OSHA has indicated it will use its “enforcement discretion” and not fine those employers who are not fully compliant but are moving towards compliance in good faith. Some Democrats have been critical of OSHA’s new guidance for exempting non-healthcare employers, and further changes are possible. As always, if you have any questions regarding the issues discussed above, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul Keneally, the author of this piece, here or at (585) 258-2882.

  • Are Vaccine Mandates Legal?

    This article was published in The Daily Record on May 25, 2021. Life is finally beginning to feel a bit more normal as our long journey out of the pandemic is hopefully nearing an end. Just last week, Governor Cuomo adopted the CDC recommendations regarding masks, and lifted many of the capacity restrictions that have been in place for well over a year. However, many medical experts continue to say that the only way to truly put the pandemic behind us is for a significant portion of the population to get vaccinated so “herd immunity” can be achieved. Currently, a little over 50% of adults over 18 in New York have been fully vaccinated. However, polls show that anywhere from 15% to 30% of the population are either vaccine hesitant, or openly hostile to getting vaccinated. Putting politics aside, the refusal of a significant portion of the population to get vaccinated puts both public and private businesses and venues in a difficult position as they try to navigate a return to normalcy. Many states, including New York, have already made the decision to “incentivize” vaccinations to encourage more people to take the shot. Whether it is beer or a glass of wine in exchange for rolling up your sleeve or allowing access to more events and venues if you are fully vaccinated, the idea is to get as many people vaccinated by whatever means necessary. Despite such efforts, there will undoubtedly be some portion of the population that will simply refuse to be vaccinated – regardless of any incentives. As we are still in the stage of encouraging as many people as possible to get vaccinated, private businesses and government have largely avoided requiring or demanding that someone be vaccinated. However, as more employers pivot away from working remotely, the question of how to handle unvaccinated employees will come to a head. There is no national or statewide vaccine mandate, and it is highly unlikely that one will be issued. However, as far back as 1905, the United States Supreme Court in Jacobson v. Massachusetts held that states have a right to protect against an epidemic. That case involved a law mandating smallpox vaccinations, and upholding fines for those who refused to get one. While most businesses would prefer that employees voluntarily get vaccinated, do they have the right to require it? While private businesses may be hesitant to require vaccines, they generally have the right to do so. Vaccination status is not a protected class for private employers, and they would only be required to make accommodations for those individuals who cannot be vaccinated for legitimate health reasons. Similarly, more and more colleges and universities (including SUNY) have announced in order for students to return for in-person classes in the fall, they will need to show proof of vaccination. Colleges have wide discretion in taking action to protect the health and safety of its student population, and although they generally must allow for medical and religious exemptions, it is unlikely that the legal challenges to these vaccination requirements will be successful. Lawsuits have also been threatened against New York State or other municipalities that implement policies that treat vaccinated people differently than unvaccinated people. For example, Erie County Executive Mark Poloncarz has announced that the County—which owns Highmark Stadium—will require all attendees at Bills games in the fall to be fully vaccinated. The County’s position is that while individuals have a right to decide not to get the vaccination, the Constitution does not provide a right to attend a football game. It is likely that concert venues and other mass-gathering events will follow suit in some form. While being shut out of such events will undoubtedly anger many who choose not to get vaccinated, again, their legal recourses will be extremely limited as they are simply not being deprived of a protected right. Some have claimed that requiring someone to show proof of vaccination before entering an event would be a violation of HIPAA. They allege that requiring production of personal medical data as a prerequisite to gaining entry runs afoul of the statute. This argument is misplaced. Attendees would be voluntarily showing proof of vaccination, which is clearly not a HIPAA violation. Inevitably, there will be at least some legal challenges to policies, businesses or public entities that require vaccination to participate in or attend functions and activities. However, such challenges are largely going to be unsuccessful. As always, if you have any questions regarding the issues discussed above, or if you have any other Litigation Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Colin Ramsey, the author of this piece, here or at (716) 847-9103.

  • NO MORE MASKS!!! (For the most part)

    Employers across New York State, including office and manufacturing businesses, retailers and gyms/clubs, grappled late during the week of May 17, 2021 with the State’s adoption of the Centers for Disease Control’s (“CDC”) interim public health recommendations for fully vaccinated people. The CDC recommended that vaccinated people generally be permitted not to wear masks or socially distance by six feet, with notable exceptions for Pre K-12 schools, public transit, homeless shelters, correctional facilities, nursing homes and healthcare settings. Conversely, unvaccinated people in all settings must continue to wear masks and socially distance by six feet. The immediate issue presented was how to tell if employees, customers, members, etc. are vaccinated or not for purposes of applying the new law. For now, it appears most have settled on following the “honor system”, allowing people to decide on compliance with the law themselves. However, some businesses have decided to continue to require masks of employees, customers and/or members, while others have exercised their right to require proof of vaccination prior to allowing someone not to wear a mask on their premises. Business capacity is now only limited by the space needed in order to maintain the six feet of social distance. As per the above though, vaccinated people do not need to wear a mask or socially distance by six feet, so the business capacity is not limited by vaccinated people. For purposes of business capacity, proof of vaccination status is required to be obtained. The form of proof may be the paper vaccination card or a copy, digital application or the State’s Excelsior Pass. Business capacity will therefore still be limited to the extent people fail or refuse to provide proof of vaccination. Neither the CDC Recommendations nor the state guidance adopting them mentions or requires daily health assessments as previously required. Certainly, employers would be advised to continue to have employees who show COVID-19 symptoms to stay home and seek medical attention if need be. There is also no reason not to continue with the enhanced cleaning, hand-washing and other hygiene precautions that have been in effect during the pandemic. As always, if you have any questions regarding the issues discussed above, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul Keneally, the author of this piece, here or at (585) 258-2882.

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    LABOR & EMPLOYMENT LAW Strategy At Work. Labor and employment law is a constantly changing and ever-expanding field of practice. It is also one of the most costly, time-consuming and commonly litigated areas in law today. That is why having our labor and employment attorneys on your side—whether to help prevent claims or to vigorously defend your interests in litigation—is your key to success. The essence of labor and employment law is people. It is not only about protecting your business, it is about resolving conflicts with employees. Our labor and employment law attorneys will help you mediate grievances before they become lawsuits. We will help you draft policies that forestall future problems and protect your employees. If necessary, we will aggressively litigate cases on your behalf. But more important, we can help you stay out of the courtroom, avoid costly lawsuits, and create a more congenial and stable workplace for employee and employer alike. ​We represent businesses of all sizes with issues that employers must confront every day. We also represent public employers regarding those same issues, as well as those that are unique to public employers under New York State law. Our services include: Labor law compliance Protected category discrimination, including harassment Defamation allegations Employment and wage and hour class action defense Employee benefits, including pension plan design and interpretation Trade secrets and confidential information Non-competition/non-solicitation agreements Drug and alcohol policies Employee fraud, embezzlement and misappropriation Prevailing wage matters Tortious interference Reductions-in-force AIDS and other HIPAA privacy issues FMLA issues Overtime and other wage and hour claims Labor & Employment Trainings Sexual Harassment (including discrimination & harassment on any protected category) ADA/FMLA/WC Hiring & Firing Overtime/FLSA Covid-19 Paid Sick Leave NYS Paid Sick Leave For more information about labor & employment law, contact Paul Keneally, chair of the practice group. Contact Paul RELEVANT EXPERIENCE Represent multi-state employers on all of their employment issues, including disability, discrimination and benefits issues. Help businesses investigate and respond to sensitive sexual and other harassment claims. Litigate age, sex, race, sexual orientation, religion, discrimination and ADA/disability cases in federal and state court and the EEOC and SDHR. Defend wage and hour class actions. Establish effective programs for implementing COBRA and the FMLA, and litigate cases regarding those issues. Negotiate and litigate covenant not to compete, trade secret and other confidential information cases. Provide guidance on how to minimize losses from employee theft. Advise employers on hiring practices, performance reviews, disciplinary action and terminations. Handle issues regarding whistleblowers. Represent employers on wage and hour issues before state and federal Departments of Labor. Counsel clients on how to avoid the legal hurdles involved in downsizing. Negotiate settlement and release packages for employees and departing executives in various industries. Track pending legislation such as EFCA and paid FLMA for clients. Counsel employers with regard to labor practices, and assist employers to recognize unlawful practices prior to the commencement of proceedings challenging the labor practices. Handle grievance and arbitration proceedings pursuant to collective bargaining agreements. Advocate on behalf of employers relative to unfair labor practice charges, as well as other proceedings, before the National Labor Relations Board. Litigate improper practice charges, as well as other proceedings, before the New York State Public Employment Relations Board. Counsel and train management personnel and supervisors regarding the handling of unions, union issues and grievances. Counsel large clients regarding union-organizing campaigns. OUR LABOR & EMPLOYMENT ATTORNEYS: Aaron M. Griffin Labor & Employment, Litigation Rochester, NY Alina Nadir Labor & Employment, Litigation Rochester, NY Stephanie B. Hoffmann Labor & Employment, Litigation Rochester, NY Colin D. Ramsey Health Care, Labor & Employment, Litigation Buffalo, NY Paul F. Keneally Labor & Employment, Litigation, Municipal Law Rochester, NY Jennifer A. Shoemaker Family Law, Labor & Employment, Litigation Rochester, NY Thomas F. Knab Construction, Corporate & Business, Labor & Employment, Litigation Buffalo, NY View Our Labor & Employment Law Articles & Posts

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