In the last week there have been new updates relevant to employees and employers.

EMPLOYERS CAN MANDATE VACCINATION WITH LIMITED EXCEPTIONS

The question that everyone wants answered is whether it is legal for employers to mandate vaccinations. The answer is generally YES. Employers can mandate vaccination of its employees. However, employers cannot do so if the employee has a “sincerely held” religious belief or have a disability that prevents them from getting the vaccine. In both instances, an employee may have to provide documentation to support their request for exemptions. For more information about what may need to be shown to obtain an exemption contact Sheree Donath.

NEW YORK STATE HERO ACT NOW IN EFFECT

On September 6th, New York Governor Kathy Hochul announced that the New York State Department of Health designated COVID 19 as a highly contagious and communicable disease that presents a serious risk of harm to the public. As a result, employers must now activate their airborne infections disease exposure plans under the New York State’s HERO Act that were previously prepared, posted and disseminated to their employees. For more information on the New York State’s HERO Act and its requirements click here.

The New York State’s HERO Act contains an anti-retaliation provision for those employees who exercise their rights under the law.

The New York State Department of Labor has also issued information and frequently asked questions regarding the New York State HERO Act.

The New York State Department of Health’s designation is currently only in effect until September 30th. At that time, the commission will review the level of COVID-19 transmission in New York and make a determination as to whether the designation will halt or remain in effect.

PRESIDENT BIDEN’S PROPOSED “PATH OUT OF THE PANDEMIC”

President Biden has proposed a path to reduce the number of Americans that have not yet been vaccinated against COVID-19. There is currently no timeframe for implementing the plan but it is expected to move forward quickly.

The plan includes, among others: mandating the COVID-19 vaccine for employers with 100 or more employees or requiring a negative test from unvaccinated workers on a weekly basis; requiring COVID-19 vaccinations for federal workers and contractors that conduct business with the federal government; requiring COVID-19 vaccinations for health care workers at hospitals that receive Medicaid and Medicare reimbursement; requiring employers to provide paid time off to employees to obtain the vaccination and/or to recover from any symptoms that arise due to receipt of the vaccine.

There are various open issues that need to be resolved with this plan. Among them, who is required to pay for unvaccinated employees to be tested on a weekly basis? Will the testing time for those who opt out of the vaccine be compensable? Can employees opt out of testing if they have religious or medical exemptions? When are the above to be implemented?

COBRA SUBSIDY COMING TO AN END

Employees who were eligible for COBRA subsidy under the American Rescue Plan due to an involuntary termination, the COBRA subsidy is set to end on September 30, 2021. If you are receiving the COBRA subsidy and your COBRA is paid on a monthly basis then you may be responsible for payments starting October 1st. If your COBRA is paid mid-month, then your subsidy may continue until the middle of October. To date, the subsidy has not been extended.

UNDERSTANDING YOUR OPTIONS AND OBLIGATIONS

Contact Sheree Donath at 516-804-0274 or at sheree@donathlaw.com or through Donathlaw.com for more information on your rights and obligations in the workplace or to try and navigate your employment in this continuously changing environment.

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The New York Health and Essential Rights Act , also known as the New York HERO Act, is currently in effect. The New York HERO Act was passed in response to the Covid 19 pandemic. By August 5, 2021, all New York employers must establish policies and procedures to be distributed to their employees; posted in a well-viewed location; and to be followed when required.

According to the New York State Department of Labor “The airborne infectious disease exposure prevention plans must go into effect when an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health.”

The New York State Department of Labor has set forth new Airborne Infectious Disease Exposure Prevention Standard, a Model Airborne Infectious Disease Exposure Prevention Plan, and various industry-specific model plans for the prevention of airborne infectious disease that employers can follow and utilize in creating their own policies to protect employees from airborne infectious diseases in the workplace.

The plan applies to all “employees” which has been defined to mean “any person providing labor or services for remuneration for a private entity or business within the state.” The term “employees” includes part-time employees, independent contractors, consultants, temporary and seasonal workers, domestic workers, home care and personal care workers, farmworkers, day laborers, individuals working for digital applications or platforms, staffing agencies, contractors/subcontractors on behalf of the employer at any individual work site, individuals delivering goods or transporting people on behalf of the employer. “Employees” as defined is without regard to the individual’s immigration status.

For more information on the New York HERO Act Airborne Infectious Disease Exposure Prevention Standard click here.

To view a copy of the New York HERO Act Model Airborne Infectious Disease Exposure Prevention Plan/template that sets forth the minimum standards employers are to implement click here.

The plan requires minimum controls to be put into place during an outbreak, including, without limitation: health screening, face coverings, physical distancing, stay at home policies for those with symptoms or who have been exposed, hand washing and sanitizing, disinfecting and cleaning by the employer. The plan also requires advanced controls be put into effect alongside the minimum controls when the minimum controls are not deemed sufficient. Some such controls, include the following, among others: ventilation systems, barriers such as partitions or plastic guards, additional PPE to be provided to employees at no cost to the employee, change in traffic flow, limiting the use of shared work stations, etc.

The new law also contains an anti-retaliation provisions to protect employees who exercise their rights under the law.

While employers are required to prepare and distribute the plans by August 5th, currently as of the date of this posting, they are not required to be put into effect.

For more information regarding your rights and obligations, contact Sheree Donath at sheree@donathlaw.com, (516) 804-0274 or by clicking here.

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As Covid restrictions are lifted and employers require employees to return to the workplace, many employees are debating about whether they want to return to their current job or if they should resign and seek new employment. Many feel that they are on a merry go round that simply doesn’t stop turning and want to make a quick change.

While employees say they tired of the zoom/ teams/ google meets they are also concerned about commuting 1-2 hours each way on a daily basis. Employment during the pandemic has shown what jobs can be performed remotely and what roles need to be in person. Many employees are now faced with the choice of return to the office or resign. For those employees who have been able to work remotely, in some form, for the past 1.5+ years, some are deciding whether they are ready to transition back to the “normal” office.

For those considering whether to return to the office or to resign, we suggest making a pro/con list to determine the job values that are important to you and your family. We suggest that you rank your job priorities to help with your decision and to help you find your ideal job. This will assist you in deciding if the job you currently have is the right one for you or if it is time for a transition.

Some factors to consider are:

– In office experience/ Working from home/having the ability to work in a hybrid model

– Salary/ compensation/ commission

– Benefits (health, 401k, equity, etc.)

– Flexible work schedule

– the role you are being asked to perform vs. the role you thought or hoped to perform

– travel on behalf of the company and commuting

– childcare costs

– relation with your current Manager?

Keep in mind that resigning from your job without forth thought and/or new employment may not bring you 100% satisfaction. Many people often believe that it will be better somewhere else only to learn that isn’t the case and the same issues they had at their previous job exist at the new job.

If you are going to resign from your job, there are various factors to consider. For more information, click here.

To find out more about transitioning out of your current role and possibly seeking severance, click here.

For assistance in reviewing and negotiating the terms of your new employment, click here.

To schedule a consultation with Sheree Donath, Esq. click here or contact Sheree Donath at sheree@donathlaw.com.

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Employers to cover 100% of COBRA costs for employees:

The American Rescue Plan Act (ARPA) was signed into law on March 11, 2021. ARPA contains regulations relating to COBRA and an employer’s responsibility to its employees.

Specifically, ARPA requires: Employers to cover 100% of the employee’s cost of continuing health coverage under COBRA for up to six months if an employee has lost health coverage due to (a) a reduction in force or (b) the employee was involuntarily terminated. Basically, an employee terminated for any reason, other than gross misconduct, will fall within this provision. The COBRA subsidy period covered by ARPA is from April 1, 2021 to September 30, 2021. It applies to all employees who are or would’ve been covered during this six month period. It is not applicable if an employee is entitled to any other health insurance coverage.

For more information regarding your rights to the COBRA subsidy or to find out if you are entitled to additional benefits from your company due to a recent termination and/or receipt of a severance package, contact Sheree Donath at sheree@donathlaw.com.

Employer’s are required to give employees PAID time off to get the Covid-19 vaccine:

New York employers are required to provide employees time off to get a Covid-19 vaccination. This requirement became effective on March 13, 2021 and currently runs through December 31, 2022. The vaccination leave law applies to all private employers regardless of their size.

Per the new vaccination leave law:

•  entitles employees to paid time off of up to four (4) hours for each vaccine injection. Employees are entitled to paid time off of up to four (4) hours for each dose of the vaccine they receive (i.e. so if the employee gets a Covid-19 vaccine that requires two doses and the employee has to go twice to be vaccinated, they are entitled to up to eight (8) hours of paid time off).
• prohibits employers from requiring employees to use PTO or sick leave or any other leave
• requires that employees be paid their regular rate of pay.
• doesn’t affect rights under a collective bargaining agreement that may allow for additional time off.
• prohibits employers from discriminating or retaliating against employees for exercising their rights under the vaccination law.

For more information regarding the vaccination law or updating employment policies, contact Sheree Donath at sheree@donathlaw.com or by clicking here.

Coming Soon  … legalizing recreational marijuana in New York’s effect on the workplace.

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Performance Improvement Plans, also known as a P.I.P or an action plan, are sometimes used to help employees improve their performance but are often used by employers as a means to terminate employees. They are a written record of the employee’s alleged deficiencies.

A performance improvement plan requires that the employee meet certain expectations within a 30, 60 or 90 day period. The expectations are ones that usually cannot be achieved in this short period of time and ones that come as a surprise to the employee receiving the plan.

A performance improvement plan generally comes after a performance review. The employee is left with a sense of confusion of how can I make the situation better, if at all. The employee struggles with what their options are and how to proceed.

A lowered performance review and/or receipt of a performance improvement plan is done to force the employee to make a decision. Fight to keep their job and achieve the seemingly unachievable goals, or resign from their job and lose out on benefits, unemployment and/or vesting. Employees often wonder whether they should quit or work through the performance plan.

Employees should take action upon receipt of the performance improvement plan and should respond to the plan, in writing. The performance plan should be reviewed to see if it violates any contracts, policies or company practices. The plan should be compared to the employee’s job description to see if the plan requirements are outside the parameters of the job. It should be determined whether the employee received any prior warnings. Whether there was a change in management that sparked the lower performance rating or performance plan. Or, among others, whether the employee is being placed on the plan for an improper or illegal reason.

If you have received a performance improvement plan or a poor performance review, you have options and you should take action to determine how to proceed.

EMPLOYEES CAN TAKE ACTION WHILE THEY ARE STILL EMPLOYED AND DO NOT HAVE TO WAIT UNTIL THEY ARE FIRED OR FORCED TO RESIGN!

For more information about your options contact Sheree Donath to schedule a consultation.

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The EEOC has been offering continuing guidance about discrimination laws in the workplace and how they relate to the current pandemic.

Yesterday, they updated their frequently asked questions to include a section on the new vaccine and requiring vaccinations.

Click on this link for more information and to read the frequently asked questions and response from the EEOC.

If you have questions or concerns regarding your employment, contact Sheree Donath at 516-804-0274 or sheree@donathlaw.com to find out your rights and options.

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