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Are You Ready for 2022? Updates for New York EmployersJanuary 13, 2022
Last year was an active one for legislation impacting New York employers. With 2021 in the books and 2022 upon us, it is a good time to make sure employers have kept pace with the changes and are ready for what lies ahead.
What’s New In New York State?
In October 2021, the governor signed an amendment expanding New York’s whistleblower law. That law takes effect on January 26, 2022.
For years, New York’s whistleblower law was limited to protecting employees in narrowly defined circumstances. The law prohibited employers from retaliating against employees who threatened to disclose or actually disclosed an employer’s violation of a law, rule or regulation which created and presented “a substantial and specific danger to the public health or safety, or which constitute[d] health care fraud.”
- The law will now protect not only current employees, but also former employees and independent contractors.
- Expands whistleblower protections beyond the scope of health care fraud and reporting of health and safety concerns.
- No longer must an employee prove that the employer actually violated a law, rule or regulation. Instead, the standard is that an individual must reasonably believe that an employer’s activity violates any law, rule or regulation, or executive order.
- The law no longer requires employees to afford an employer notice and a cure period in all circumstances, including when: (i) there is an imminent and serious danger to the public health or safety; (ii) the whistleblower reasonably believes that reporting to the supervisor would result in a destruction of evidence or other concealment of the activity, policy, or practice; or (iii) the employee reasonably believes that the supervisor is already aware of the activity, policy, or practice and will not correct such activity, policy, or practice.
- The amendment expands the remedies available. In addition to lost wages, benefits and attorneys’ fees, courts may hold employers liable for front pay and punitive damages, and assess a penalty of up to $10,000.
- The statute of limitations has been extended from one to two years. Parties are also now expressly entitled to a jury trial.
- Employers must inform employees of their protections, rights and obligations by posting a notice in “easily accessible and well-lighted places customarily frequented by employees and applicants for employment.”
Employers will want to be sure their organizations adopt a compliant policy and train management on the new law, reporting procedures, and, as appropriate, investigations into whistleblower complaints.
Notice of Electronic Monitoring
On November 8, 2021, Governor Hochul signed a law requiring employers to notify employees if the employer monitors telephone calls, email, internet usage, and other electronic communications. The law is effective May 7, 2022.
Employers must give written notice to all employees subject to electronic monitoring at the time they are hired stating: “[A]ny and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.” The notice to newly hired employees must be acknowledged by the employee. A copy of the general notice must be posted in a conspicuous place which is readily available for viewing by employees subject to electronic monitoring.
Any employer violating the law is subject to a penalty of $500.00 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.
Many employer handbooks include monitoring policies. Those policies should be reviewed and employers should take additional steps to ensure employees understand that their communications may be monitored.
NY HERO Act
On May 5, 2021, the New York State Health and Essential Rights Act (“HERO Act”) was signed into law. The HERO Act required employers to adopt an airborne infectious disease exposure prevention plan by August 5, 2021 and provide it to employees by September 4, 2021. Employers must activate the plan when the New York State Commissioner of Health designates an airborne infectious disease as a highly contagious communicable disease that presents a serious risk of harm to the public health. On September 6, 2021, COVID-19 was designated as such and that designation is in place until January 15, 2022, at which time it may be extended.
Among other things, the law allows employees to establish a workplace safety committee, requires employers to provide training to its employees, and permits the Commissioner to assess a civil penalty of at least $50 per day against an employer that fails to adopt a plan. In addition, employers may be sued and subject to additional penalties.
On March 12, 2021, the governor signed legislation giving employees up to four hours of paid leave for COVID-19 vaccinations. The law is effective from March 12, 2021 through December 31, 2022. Employees are entitled to up to four hours per vaccine injection – boosters included. This leave is in addition to any other leave to which the employee may be entitled, including leave under the New York State paid sick leave law and the New York City Earned Safe and Sick Time Law.
What's New In New York City?
In addition to obligations imposed by changes to the state’s laws, New York City employers are dealing with additional obligations.
New York City Vaccination Mandate
On December 6, 2021, former Mayor Bill de Blasio announced expansions to the “Key to NYC” program. Effective December 27, 2021, employers must exclude from the workplace any worker who has not provided proof of vaccination against COVID-19 unless an exception for a religious or medical accommodation applies or the worker “only ever enters the workplace for a quick and limited purpose.” The order requires employers to take several steps, including:
- Verifying a workers’ proof of vaccination and one form of identification. By December 27, 2021, the worker must present proof that he is fully vaccinated, received one dose of a single dose vaccine, or received one dose of a two dose vaccine provided the worker gets the second dose within 45 days.
- Adhere to specific recordkeeping provisions. Vaccination information should be collected and stored in a secure manner to ensure the privacy and security of the information is protected. Only those with a need to know should have access.
- If a worker does not present proof of vaccination, but has requested a medical or religious accommodation by December 27, 2021, the worker may continue working at the workplace while the request is considered. The City has provided a reasonable accommodation checklist that can be found here. If a reasonable accommodation is granted in lieu of requiring proof of vaccination, the company must keep certain records to comply with the mandate.
- Employees who do not present proof of vaccination or request a reasonable accommodation in accordance with the mandate must be excluded from the workplace.
- Employers must complete a certification and post it at a conspicuous location.
Businesses that refuse to comply are subject to a fine of $1,000 and escalating penalties if violations continue.
Keep in mind that employers with 100 or more employees must also comply with OSHA’s Emergency Temporary Standard (“ETS”). Although there may be overlap, the OSHA ETS imposes additional obligations on employers such as requiring employers to implement and enforce a written mandatory vaccination or test policy, distribute certain notices to employees, and maintain a roster of employee vaccination status. The United States Supreme Court heard oral argument on challenges to the OSHA ETS on January 7, 2022. We await the Supreme Court’s decision on the future of the OSHA ETS, but in the meantime employers should be complying with the OSHA ETS.
COVID-19 Child Vaccination Time
To close out the year, New York City amended the New York City Earned Safe and Sick Time Law to provide COVID-19 Child Vaccination Time. The law became effective December 24, 2021 (retroactive to November 2, 2021) and is in place until December 31, 2022.
An employee who is a parent of a child younger than 18 (or older if incapable of self-care because of a mental or physical disability) may take up to four hours of paid leave per vaccine per child (in addition to any other time off the employee may have). The time may be use to accompany the child to a COVID-19 injection or care for the child due to temporary COVID-19 injection side effects. Unlike the sick and safe leave provisions of the New York City Earned Safe and Sick Time Law, which can be waived by a collective bargaining agreement under certain circumstances, child vaccination time cannot be waived.
Employers that violate the law may be subject to penalties of the greater of $250 or three times the wages that should have been paid to an employee who takes the leave without compensation, and for each instance child vaccination time is unlawfully denied or charged against an employee’s paid safe/sick time, $500.Complying In 2022
Along with these changes, 2021 brought amendments to New York City’s Fair Chance Act and other laws requiring New York employers to drastically change their policies and procedures. Employers should update policies, post appropriate notices, and train personnel to comply with these laws.
This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Karen Gillen, an O’Melveny Counsel licensed to practice law in New York, New Jersey and Arizona, and Jeffrey Kohn, an O’Melveny Partner licensed to practice law in New York and New Jersey, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.
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