1.  FEDERAL COVID VACCINATION MANDATES

The most closely watched employment law development as we enter the New Year is the fate of several Covid vaccination mandates adopted by the Biden administration.

A.  OSHA and CMS Mandates

In November 2021 the Occupational Safety and Health Administration (“OSHA”) published an Emergency Temporary Standard (“ETS”) that  employers with at least 100 employees must require that employees be vaccinated, or wear face coverings and submit weekly Covid test results.  The deadline was January 4, 2022.  After federal appeals courts issued conflicting decisions, the Sixth Circuit Court of Appeals in St. Louis was selected (by lottery)  to resolve the issue.  On December 17, 2021, this court issued a decision that this ETS was enforceable.

In November 2021 the Centers for Medicare and Medicaid Services (“CMS”) issued a rule that employees of  Medicare and Medicaid certified providers be vaccinated by January 4, 2022. There have been conflicting court decisions over the enforceability of this rule.

The U.S. Supreme Court will hear arguments on January 7, 2022, on the enforceability of the OSHA ETS and the CMS rule.     

OSHA has announced that it will not issue citations for noncompliance with the ETS before January 10, 2022, and will not issue citations for noncompliance with the testing requirements before February 9, 2022, provided that employers exercise reasonable, good faith efforts to comply with the standard.

CMS has announced that it will suspend implementation and enforcement of its rule  pending the outcome of this litigation.

B.  Federal Contractor Mandate

In September 2021, President Biden issued an Executive Order requiring vaccination for employees of federal contractors and subcontractors.  It applies regardless of the number of employees. The compliance deadline was January 4, 2022.

It is not completely clear whether this Executive Order applies to a contact or subcontract which is solely for products, as opposed to a contract for services.

On December 17, 2021, the 11th Circuit Court of Appeals in Atlanta refused to stay a lower court injunction blocking enforcement of this Executive Order nationwide. The 11th Circuit has not yet ruled on the validity of the Executive Order, and has directed that briefs be filed in January.

It is likely that however the 11th Circuit decides this case, it will also be headed to the Supreme Court.

Until this case is resolved, the enforceability of this Executive Order is halted nationwide.      

2.  MINIMUM WAGE

Effective December 31, 2021, the minimum wage for upstate New York is $13.20 per hour for most workers. The minimum wage for New York City and Westchester, Suffolk and Nassau Counties is higher. Since  July 1, 2021, the minimum wage  for fast food workers in all of New York State  has been $15.00 per hour. 

Effective December 31, 2021, the minimum cash wage for tipped food service employees in upstate New York is $8.80 per hour, with a tip credit of $4.40 per hour.  The minimum cash wage and tip credit for New York City and Westchester, Suffolk and Nassau Counties are higher.

3.   MINIMUM SALARY FOR EXEMPT EMPLOYEES

 Effective December 31, 2021, the minimum salary for exempt executive and administrative employees in upstate New York is $990.00 per week.  The minimum exempt salary for New York City and Westchester, Suffolk and Nassau Counties is higher. New York does not have a minimum salary for exempt professional employees, and follows the Federal minimum of $684.00 per week.

4.  PAID FAMILY LEAVE

The following changes in the NYS Paid Family Leave Law took effect January 1, 2022.

• Employees taking Paid Family Leave will receive 67% of their average weekly wage, with a maximum weekly benefit of $1,068.36.
• The employee contribution rate is still .511% of an employee’s gross wages each pay period.  An employee’s maximum annual contribution is $423.71.
• The 60 day cap on intermittent leave has been removed.  The cap is now calculated by multiplying the average number of days the employee works per week by 12 weeks.
• The definition of “family member” has been expanded to include biological siblings, adopted siblings, half-siblings, and stepsiblings.  This is broader than the definition of “family member” under the Family Medical Leave Act.
• The paid leave period is still 12 weeks per year.

5.  NEW YORK HERO ACT

The New York Health and Essential Rights Act (NY HERO Act) was passed in May 2021.  This law  requires workplace health and safety protections in response to the COVID-19 pandemic. These include the following:

• Employers must adopt an airborne infectious disease exposure prevention plan, either by adopting one of the various industry-specific model plans released by the New York State Department of Labor or by establishing an alternative plan that meets or exceeds certain minimum requirements.
•  Employers must implement their prevention plan whenever an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents serious risk of harm to the public health. Currently, the New York State Commission of Health has designated COVID-19 as such and employers must continue to implement their respective prevention plans through at least January 15, 2022, at which time the Commissioner will decide whether to extend the designation further.
• Employers must provide the plan to new hires, post the plan in a prominent location and include it in their employee handbook, if the employer maintains one.
• Employers with at least 10 employees must also permit employees to create a joint employer-employee workplace health and safety committee.

6.  COVID VACCINATION LEAVE LAW

Beginning in March 2021, all New York private and public sector employers are required to provide up to 4 hours of leave for employees to receive each dose of Covid vaccination. This has since been expanded to cover booster vaccinations.   Employees can also use NYS Paid Sick Leave to recover from the side effects of vaccination.

7.  WHISTLEBLOWER LAW

Some changes to the New York Whistleblower Law are effective January 26, 2022, including the following:

• An employee is protected if they “reasonably believe” that that an action violates the law or poses a substantial and specific danger to public health or safety.  The law previously covered actual only violations of the law.
• The law now protects former employees and independent contractors.
• The statute of limitations has been expanded to 2 years.
• Employers must post a notice of employees’ rights under this law.

8.  EMPLOYEE MONITORING LAW

The New York Employee Monitoring Law takes effect on  May 7, 2022, and requires the following:

• Employees who are subject to monitoring of telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, must be provided with a written or electronic notice.
• Employers must also post a notice of electronic monitoring.
• This law will not apply to processes that are designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage, that are not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual, and that are performed solely for the purpose of computer system maintenance and/or protection.

9.  SICK LEAVE LAW

New York’s Sick Leave Law, which took effect at the beginning of  2021, is unchanged.  This law requires that  every private sector and non-profit employer in New York, regardless of size, must provide leave to every part time and full time employee.  The amount of leave, and whether it is paid or unpaid, depends on the size of the employer 

Colligan Law is always prepared to assist you in complying with these laws and the many other laws which apply to employers.

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