How could you make such a mistake?

It has long been common practice for employers to require a terminated employee to sign a separation agreement as a condition to receiving a severance payment. Such agreements usually include, among other things, the amount and timing of such payments, a general release in favor of the employer (including specific age discrimination waivers if the employee is 40 years of age or older), and non-compete, non-solicitation and confidentiality provisions (or confirm existing such provisions). In addition, such agreements have often required the employee to not disparage the employer and its business and to keep the terms of the settlement confidential (although confidentiality provisions in cases involving resolution of harassment or discrimination claims have been prohibited in some jurisdictions).

                In a recent decision, the National Labor Relations Board (NLRB) has ruled that confidentiality clauses that prohibit an employee from disclosing the terms of her or his severance agreement and clause that prohibit an employee from disparaging their employer as conditions to receipt of a severance payment violate such employee’s rights under sections 7 (essentially the right to organize) and 8(a)(1) (prohibiting employers from interfering with section 7 rights) of the National Labor Relations Act (NLRA). Set forth below is a discussion of this ruling, its applicability, and certain related issues.

Which Employers and Employees are Covered by the Ruling? Which are Not Covered?

                The NLRB’s authority extends to most US private sector employers and this ruling applies to both unionized and non-unionized employees.

Certain categories of employers are not subject to the authority of the NLRB, namely Federal, state and local government agencies (including public schools, libraries and parks), railways and airlines.

In addition, certain categories of employees are not covered by section 7 of the NLRA, most importantly supervisors and managers with the authority to hire, fire, set pay and discipline workers. In addition, independent contractors, agricultural and domestic workers, and anyone employed by a parent or spouse are not covered by the NLRA. As a result, this ruling does not apply to these individuals.

Are All Confidentiality Provisions Now Prohibited in Severance Agreements?

                No. Even if the employee in question is covered by this ruling, the ruling applies only to disclosure of the agreement’s terms and the terms and conditions of the employee’s job (such as wages, hours, health and safety issues, and other matters pertaining to employment). The severance agreement can still prohibit disclosure of trade secrets and other proprietary and confidential information.

Is the Ruling Retroactive?

                The ruling does not specify whether it is to be applied retroactively. NLRB decisions are generally presumed to be retroactive unless retroactivity would result in an injustice or be unfair to the employer. In this case, as the confidentiality and non-disparagement provisions were permitted by two 2020 NLRB decisions, a good case could be made that it would be unfair now to penalize employers who relied on that decision. However, the NLRB normally applies a six-month window to bring violations of the NLRA to the NLRB, and it could apply the decision to a severance agreement containing these clauses which was signed or enforced during this period.

What Actions Should Employers Take?

                First, unless and until the NLRB ruling is reversed (it is subject to appeal) or overruled, employers should not include provisions pertaining to (a) confidentiality of severance agreement terms, (b) confidentiality regarding terms and conditions of employment, or (c) non-disparagement of the employer, in severance agreements being given to employees subject to the NLRA (as described above).

                Second, review general confidentiality provisions in such agreements to ensure that they are not overly broad. Employers are advised to include language in general confidentiality provisions stating that such clauses do not restrict or impede the employee from exercising protected rights (including under section 7 of the NLRA) to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency.

                Third, whether an employee falls into the supervisor or manager category can be a grey area. If there’s any uncertainty with regard to a specific employee, consider whether the confidentiality and non-disparagement clauses described above are essential or can be eliminated.

                Finally, keep in mind when setting the amount of severance being offered that employees covered by this ruling cannot be prohibited from disclosing this amount to other employees. This is not all that critical if your company has a fixed severance plan or program but can be a concern if amounts are set on a case-by-case basis. An employer who gives a generous severance package to one employee may need to be prepared to justify why that package should not be provided to subsequent employees.

*****

                For further information on this ruling or guidance on drafting or revising your severance agreements, please contact David Paseltiner.

zerbrochener Bauhelm

“This bill seeks to protect workers from corporations and their agents that fail to comply with safety protocols by amending the penal code to create new offenses and substantially increasing the fines that can be imposed upon a corporate defendant convicted of certain crimes.”[1] The bill has not yet been signed by Governor Hochul.

“Carlos’ Law is named for 22-year-old Carlos Moncayo, an Ecuadorean immigrant . . .  who was buried alive at a construction site in New York City’s meatpacking district in April 2015 while working in an unreinforced 13-feet-deep trench that had been cited by safety inspectors.”[2] “On the morning of April 6, 2015, according to the New York Times, an inspector visited the site, noticed a trench without proper earth-retaining equipment, and issued a warning. Mere hours later, the walls of the trench collapsed on Moncayo, who was pronounced dead on the scene.”[3]

The contractor “was convicted of manslaughter in the second degree, criminally negligent homicide, and reckless endangerment. . . . But despite these criminal convictions, the Moncayo family, who faced the tragic loss of a son and brother, reportedly did not receive any compensation.”[4] The Occupational Safety and Health Administration (OSHA) fined the contractor approximately $10,000 (the maximum fine possible) for this negligence.”[5]

The proposed bill would raise the maximum fine for criminal liability from $10,000 to no less than $500,000, or, in the case of a misdemeanor, no less than $300,000.[6]   The proposed bill explains that:

Workplace deaths and serious injuries continue to be commonplace in the construction industry. Of the more than 400,000 workplace fatalities since Congress, enacted the Occupational Safety and Health Act (OSH Act), fewer than 80 have been prosecuted, and only about a dozen employers have been convicted. That is roughly 1-conviction for every 33,000 fatalities. In the few cases that have resulted in conviction, the penalty was only $1,000 on average. Under the OSH Act, the criminal penalty is considered as a Class B misdemeanor, and carries, at most, up to 6 months imprisonment. The weakness of OSH’s punitive measures has therefore failed to encourage safer work environments.[7]

“This bill increases punitive measures so that corporations and their agents who ignore or fail to follow safety protocols and procedures and put workers at risk are less likely to write off serious workplace injuries as a minimal cost of doing business, and more likely to give workplace safety the serious attention it requires.”[8]

It is hopeful that this proposed bill will encourage contractors to maintain a safe construction site. The information in this article is subject to change depending on whether the proposed bill is signed by the Governor.  We will keep our readers informed with respect to any new developments.

The material in this article is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, contact Christopher E. Vatter at cvatter@jaspanllp.com.

[1] https://www.nysenate.gov/legislation/bills/2021/S621

[2] https://www.nysenate.gov/newsroom/in-the-news/jessica-ramos/what-happened-carlos-law

[3] Id.

[4] Id.

[5] Id.

[6] https://www.nysenate.gov/legislation/bills/2021/S621

[7] Id.

[8] Id.

Construction Worker Using Theodolite Surveying Optical Instrument for Measuring Angles in Horizontal and Vertical Planes on Construction Site. Engineers and Architect Discuss Plans Next to Surveyor.

Effective as of June 9, 2022, the Administrative Code of the City of New York[1] was amended to require that “certain businesses that supply their employees to clients for the performance of construction work or manual labor on the client’s construction site, in exchange for compensation, be licensed.”[2]

These businesses are defined as “construction labor providers”[3].  “Construction Labor Providers, also known as body shops or temp agencies, are businesses that supply temporary workers to third-party clients for non-union construction work or manual labor.”[4]  Notwithstanding, “[t]he term ‘construction’ in this bill explicitly excludes handyman work.”[5] A license is also not required for employment agencies, professional employer organizations, general contractors and subcontractors (as defined in §20-564 of the NYC Administrative Code[6]).

As explained by Commissioner Vilda Vera Mayuga of the  Department of Consumer and Worker Protection, ‘“[t]emporary construction workers are often immigrants or individuals reentering the workforce and vulnerable to mistreatment and fear retaliation for reporting abuse.”’[7] This law is designed to ensure that: ‘“businesses employing these workers are licensed, inform [Department of Consumer and Worker Protection] of their business operations, maintain records, and provide their workers with information about their rights and responsibilities, which will increase transparency and safety in the industry.”’[8]

“Applying for a license would require certain signed statements and select information on business operations, and each covered business would have to supply their workers with a series of notices: on their rights as workers covered by this bill; training and certifications the employees would need to perform their work duties; and information on the employees’ work assignments.” [9]

“Businesses that violate the bill’s subchapter would also be subject to penalties. Employees of the businesses aggrieved by a violation of the bill’s subchapter would be able to initiate a private right of action against their employers for violations of the bill, including for retaliation against employees for availing themselves of rights provided by this bill.”[10]

This is another issue to be considered when performing construction work in New York City. Jaspan Schlesinger LLP can help you navigate these issues and other construction law related matters. If you need assistance, please contact Christopher E. Vatter at cvatter@jaspanllp.com.

 

[1] 2022 N.Y.C. Local Law No. 150, N.Y.C. Admin. Code §§150-564.

[2] https://www1.nyc.gov/site/dca/about/new-laws-rules.page

[3] A construction labor provider “means a person who employs and supplies a covered construction worker to a third party client for the performance of construction work or manual labor for a construction project of such client on a site in the city, in exchange for compensation from such third party client, provided that the completion of such project is directed by such client or such client’s contractor and not such person.” (2022 N.Y.C. Local Law No. 150, N.Y.C. Admin. Code §§150-564.1).

[4] https://www1.nyc.gov/site/dca/media/pr060922-DCWP-Begins-Licensing-Construction-Labor-Providers.page

[5] https://www1.nyc.gov/site/dca/about/new-laws-rules.page; see also NYC Administrative Code §20-564 and 28-105.4.2.1/

[6] https://www1.nyc.gov/site/dca/businesses/license-checklist-construction-labor-provider.page

[7] https://www1.nyc.gov/site/dca/media/pr060922-DCWP-Begins-Licensing-Construction-Labor-Providers.page

[8] Id.

[9] https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=4966517&GUID=23CA198A-0612-439D-AB54-14065535D735&Options=ID|Text|&Search= see also Construction Labor Provider License Application Checklist.

https://www1.nyc.gov/site/dca/businesses/license-checklist-construction-labor-provider.page#:~:text=Who%20Must%20Have%20a%20Construction,worksites%20in%20exchange%20for%20compensation.

[10]  https://www1.nyc.gov/site/dca/about/new-laws-rules.page#:~:text=require%20certain%20businesses%20that,provided%20by%20this%20bill.

hiring techology

Many employers use computer-based technology such as artificial intelligence, software, and algorithms throughout the hiring and employment process. Examples of the types of tools used in the hiring process include resume-screening software, chatbots, and digitized interviews. These tools have replaced many basic human resource tasks in employment recruitment and have streamlined the hiring process.

While such technology-enabled employment selection promotes efficiency and cost-savings, employers must ensure that its use is not in violation of the Americans with Disabilities Act (“ADA”). The ADA is a federal civil rights law that prohibits employers, employment agencies, labor organizations, and joint labor-management committees with 15 or more employees from discriminating based on disability.[1]

If a computer-based tool improperly “screens out” or rejects an applicant for employment who has a disability, the employer may be in violation of the ADA. This is the case whether or not the rejection was intentional or unintentional. For instance, digitized interviews use software that assesses an applicant’s tone of voice, speech patterns, and facial movements to evaluate the applicant’s fit for the role. However, if the applicant has a speech impediment, the software may not evaluate the applicant effectively and may automatically reject the applicant due to a low evaluation rating.

Employers should be mindful of tools that indicate they are “bias free” as this designation may be misleading. “Bias free” tools typically mean that steps have been taken to prevent discrimination under Title VII, based on race, sex, national origin, color, or religion.[2] However, the steps required to prevent disability discrimination are unique based on the disability and must be distinguished from the steps required to prevent Title VII discrimination.

Employers who choose to use AI in the hiring process can and should take steps to reduce the chances of prejudicing individuals with disabilities. For example:

  • Employers should develop and select tools that measure abilities or qualifications that are truly necessary for the job, including for individuals who are entitled to a reasonable accommodation.
  • Employers must provide a reasonable accommodation to qualified individuals with disabilities, unless doing so would cause undue hardship. Therefore, employers must provide clear and accessible instructions for requesting such accommodation to those who are being evaluated. The ADA permits employers to request reasonable medical documentation in support of a request for reasonable accommodation, when necessary.[3]
  • Employers should clearly describe, in accessible formats, what traits the AI will be assessing and how, so applicants will better understand when they may need to request a reasonable accommodation.
  • Decision-making tools that rate an applicant’s ability by measuring the similarity between an applicant’s personality and the typical personality for successful individuals holding the open position should be avoided.
  • Prior to purchasing employment technology that is administered by an outside vendor, employers should request that the vendor forward all requests for accommodations to be processed by the employer in accordance with the ADA, or enter into an agreement with the outside vendor to provide reasonable accommodations on the employer’s behalf, in accordance with the ADA. It is important to note that any potential liability extends to the employer even if the tool is administered and/or developed by an outside vendor.

Employers must be able to navigate the pitfalls of employment selection technology and ensure that these tools are used to enhance the hiring process to build an inclusive and accessible workforce.

For further information or guidance on how this law may affect your business, please contact Tyleana K. Venable at tvenable@jaspanllp.com.

[1] 42 USC 12101 et seq.

[2] https://www.eeoc.gov/laws/guidance/americans-disabilities-act-and-use-software-algorithms-and-artificial-intelligence

[3] https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada

Person monitoring closed circuit surveillance

In the latest Jaspan Schlesinger Labor and Employment Law blog, attorney Stanley A. Camhi discusses New York’s recent amendment to the New York Civil Rights Law.

On November 8, 2021, New York Governor Hochul signed into law an amendment to the New York Civil Rights Law creating a new section (§52-c) that took effect on May 7, 2022. The new law requires that employers with a place of business in New York State who engage in electronic monitoring of phone calls, e-mails, and internet use must now provide notice to their employees of such monitoring.

The New York law requires written notice (either paper or electronic) to be provided upon hire to all new employees if the business monitors and/or plans to monitor its employees, the receipt of which must be acknowledged by the employee in writing.  For current employees, the employer must post the notice “in a conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring.”

The notice advising employees of the employer’s monitoring shall inform them that “any 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.”

However, the amendment does not apply to processes that: (1) are designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage”; (2) “are not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual, and”; (3) “are performed solely for the purpose of computer system maintenance and/or protection.”

The Attorney General is authorized to enforce the provision.  Any employer who is found to be in violation of the new amendment is subject to a fine up to $500 for the first offense, $1,000 dollars for the second, and $3,000 for the third and each subsequent offense.

For further information or guidance on how this law may affect your business, or for assistance in revising your policies and procedures in accordance with this law, please contact Stanley A. Camhi at scamhi@jaspanllp.com.

Modern Electronics Research, Development Facility: Black Female Engineer Does Computer Motherboard Soldering. Scientists Design PCB, Silicon Microchips, Semiconductors. Medium Close-up Shot

According to the United States Census Bureau, women make up nearly half of the United States work force.[i] Notwithstanding, as of 2019, women make up only 27% of workers in the fields of science, technology, engineering and mathematics (“STEM”).[ii]  “Women employed full-time, year-round in STEM occupations earned more than their non-STEM counterparts but the gender earnings gap persisted within STEM occupations.”[iii] Men also outnumber women majoring in most STEM fields in college. [iv] “The gender gaps are particularly high in some of the fastest-growing and highest-paid jobs of the future, like computer science and engineering.”[v]

“Women and minorities are severely underrepresented in STEM, often because they were not encouraged to early on. In a 2010 survey by the Bayer Corporation of female and minority chemists and chemical engineers, 77 percent said significant numbers of women and minorities are missing from the U.S. STEM work force because ‘they were not identified, encouraged or nurtured to pursue STEM studies early on.”’[vi]

In an attempt to address this issue, on December 22, 2021, Governor Hochul signed a Bill[vii] “directing the urban development corporation to conduct a study regarding the assistance needed to encourage women and minorities to pursue technology careers in science, technology, engineering and mathematics (STEM)”. It is hopeful that: “[t]his bill will help identify the types of assistance necessary to encourage more women and minorities to enter STEM fields.”[viii]

According to Senator Anna M. Kaplan, “[s]o many employers in today’s high-tech, global economy consistently struggle to find enough qualified individuals to fill the high-skill, high-paying jobs they create, and the workforce has never been truly reflective of the diversity of our community. It’s time we helped more young women and people of color to pursue careers in the fields of science, technology, engineering, and math, and by encouraging these underrepresented groups to pursue STEM studies, we can provide greater opportunities for more young people in our community, and fill a critical need for workers skilled in the areas of demand in today’s economy.”[ix]

According to Assemblymember Linda B. Rosenthal, “[t]his new law will help increase the numbers of women and minorities who pursue technology-based careers. While some of the fastest-growing and highest-paying jobs are in the STEM field, the number of women and people of color employed in these fields continues to lag behind. A better understanding of the availability of grants designed to encourage underrepresented people to pursue careers in STEM is vital to help level the playing field and ensure access to well-paying and intellectually stimulating jobs.”[x]

For further information, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Samantha M. Guido at sguido@jaspanllp.com.

[i] https://www.census.gov/library/stories/2021/01/women-making-gains-in-stem-occupations-but-still-underrepresented.html (men make up 52% of the workforce).

[ii] Id.

[iii] Id.

[iv] https://www.aauw.org/resources/research/the-stem-gap/

[v] Id.

[vi] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[vii] https://www.nysenate.gov/legislation/bills/2021/s531/amendment/b

[viii] Id.

[ix] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[x] Id.

Newborn baby's cute little foot

On December 22, 2021, Governor Hochul signed a Bill[i] directing “the department of financial services, in consultation with the department of health to prepare a report with recommendations on their review of covered benefits related to childbirth offered by all health insurance providers in New York state.”[ii]  The purpose of the Bill is: “[t]o uncover hidden costs related to childbirth, shine a light on disparities in rates negotiated by insurers covering the birth, and determine if Statewide standards should be adopted.”[iii]

Pursuant to the Bill, the Department of Financial Services, in cooperation with the Department of Health, is to conduct a review of the benefits related to childbirth and “must include an examination of length of stay periods, costs incurred by patients and reimbursed to providers, and additional benefits offered, or not.”[iv]

Senator Julia Salazar in addressing this Bill stated that: “People expecting a child face many unknowns, which often cause anxiety and uncertainty. One of these is the difficulty many face in ascertaining the costs they will incur for labor and delivery. This bill alleviates that concern by requiring the Department of Financial Services to study and report on the coverage actually provided by insurance companies in New York for these services.”[v]

Assemblymember Chantel Jackson in discussing the Bill stated that:  “Maternal Health has been of critical importance across the nation and here in New York State, as more needs to be done to close the gap in maternal mortality among women of color.  Race, poverty and discrimination still play a role in the maternal care and delivery options available and afforded to women of color.  This legislation will focus on creating a study that will shed a light and better understanding on the current insurance benefits and coverage related to childbirth. This legislation will help identify and address the areas where insurance coverage standards must be revised to better serve the maternal health needs of expectant mothers before, during and after delivery.”

The report and recommendations will be used to “determine if state-wide standards should be adopted in addition to taking measure of how the State already fulfills requirements set by the Federal ACA [Affordable Care Act].”[vi]

For further information, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Samantha M. Guido at sguido@jaspanllp.com.

[i] https://www.nysenate.gov/legislation/bills/2021/s4827

[ii] Id.

[iii] Id.

[iv] Id.

[v] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[vi] https://www.nysenate.gov/legislation/bills/2021/s4827

Hands holding yellow paper house on blue background, family home, homeless shelter housing and home protecting insurance, mortgage concept, foster home care

One of the many unspoken issues facing homeless women is access to feminine hygiene products.  Governor Hochul, recognizing this issue, signed legislation on December 22, 2021, amending Social Services Law by adding a new section 152-c[i], which requires that feminine hygiene products be provided at no cost to menstruating individuals in homeless shelters.  The products include, but not limited to, sanitary napkins, tampons and panty liners.”[ii]  “This bill will provide feminine hygiene products at no cost to adults and children in shelters throughout New York State.”[iii] “Menstrual products can be unaffordable for those already struggling. This bill provides these products free of charge so those living in homeless shelters do not have to resort to using unsafe alternatives that can result in serious infection.”[iv] Senator Michelle Hinchey, who sponsored Senate Bill S6572, stated: “Access to menstrual supplies is a fundamental health necessity, and yet in almost every community across our state, there are people who cannot afford period products – a dilemma that no one should ever have to face.”[v] Assemblymember Linda B. Rosenthal echoed this sentiment and stated that woman should not be forced between deciding whether to buy food or menstrual products.[vi] This legislation is a small step in ensuring that women are treated fairly.

It is important that issues specific to women are brought to light and that women are treated equally and fairly. For further information, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Samantha M. Guido at sguido@jaspanllp.com.

[i] Senate Bill S6572/A.529-A.

[ii] Id. at “Summary”.

[iii] Id. at “Purpose”.

[iv]https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[v] Id.

[vi] Id.

Women's History Month. Brush calligraphy style vector template design for banner, card, poster, background.

Jaspan Schlesinger is proud to celebrate Women’s History Month. March is designated Women’s History Month by Presidential proclamation.[i] “Every March, Women’s History Month provides an opportunity to honor the generations of trailblazing women and girls who have built our Nation, shaped our progress, and strengthened our character as a people.”[ii]

“Women’s History Month had its origins as a national celebration in 1981 when Congress passed Pub. L. 97-28 which authorized and requested the President to proclaim the week beginning March 7, 1982 as ‘Women’s History Week.”’[iii]   In 1987, “Congress passed Pub. L. 100-9 which designated the month of March 1987 as ‘Women’s History Month.’ Between 1988 and 1994, Congress passed additional resolutions requesting and authorizing the President to proclaim March of each year as Women’s History Month.”[iv]  These proclamations celebrate the contributions women have made to the United States and recognize the specific achievements women have made over the course of American history in a variety of fields.[v]

President Biden, in issuing this year’s Proclamation, stated that: “[t]his Women’s History Month, as we reflect on the achievements of women and girls across the centuries and pay tribute to the pioneers who paved the way, let us recommit to the fight and help realize the deeply American vision of a more equal society where every person has a shot at pursuing the American dream.  In doing so, we will advance economic growth, our health and safety, and the security of our Nation and the world.”[vi]

Governor Hochul in signing legislature addressing women’s issues stated: “New York must continue to break down barriers for women and fight inequality throughout our state.”[vii] “These laws will address a variety of important issues, supporting STEM [ Science, Technology, Engineering, and Mathematics fields] careers and helping to ensure equity and access in women’s health.”[viii]

Despite progress being made, women still face obstacles in many endeavors and further progress is needed to ensure that women have the same opportunities as men and are treated equally. Jaspan Schlesinger proudly joins the Nation in recognizing March as Women’s History Month.  As we recognize Women’s History Month, we will be updating our blog with relevant and timely information and resources regarding laws which address and highlight women’s issues.

[i] Pub. L. 100-9.

[ii] https://www.whitehouse.gov/briefing-room/presidential-actions/2022/02/28/a-proclamation-on-womens-history-month-2022/#:~:text=NOW%2C%20THEREFORE%2C%20I%2C%20JOSEPH,2022%20as%20Women’s%20History%20Month.

[iii] https://womenshistorymonth.gov/about/

[iv] Id.

[v] Id.

[vi] https://www.whitehouse.gov/briefing-room/presidential-actions/2022/02/28/a-proclamation-on-womens-history-month-2022/#:~:text=NOW%2C%20THEREFORE%2C%20I%2C%20JOSEPH,2022%20as%20Women’s%20History%20Month.

[vii] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[viii] Id.

New York state now requires all health care workers to receive a COVID-19 booster shot within two weeks of becoming eligible. An individual is considered eligible for the booster five months after receiving the second shot in a two-dose regime (either the Moderna or Pfizer vaccine) or two months after receiving the J&J single dose vaccine.  Governor Hochul announced this mandate on January 7, and the New York Public Health and Health Planning Council formally adopted the mandate on January 11, citing the importance of the booster to controlling the spread of COVID-19 in healthcare facilities and to limiting staffing shortages in healthcare facilities due to sick and quarantined employees.

The mandate went into effect immediately following its adoption and impacts all personnel working in hospitals, nursing homes, adult care, and other congregate settings as defined in the original regulation. Covered personnel is broadly defined and includes “all persons employed or affiliated with a covered entity, whether paid or unpaid, including but not limited to employees, members of the medical and nursing staff, contract staff, students, and volunteers, who engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients, or residents to the disease.” (10 NYCRR § 2.61.)

The booster mandate allows for some medical exemptions, but, like the state’s initial healthcare worker vaccine mandate announced in August 2021, does not permit religious exemptions. The original healthcare worker vaccine mandate was challenged in federal court based on the religious exemption issue. But on November 4, 2021, the United States Court of Appeals for the Second Circuit upheld the original vaccine mandate, stating that the failure to provide a religious exemption did not violate the employees’ religious freedoms. In its opinion, the Second Circuit clarified that, despite lacking a religious exemption, the original mandate did not violate employees’ rights as it did not preclude an employer from providing a reasonable accommodation for employees with sincerely held religious beliefs if doing so would not impose an undue burden on the employer and would allow the objecting employee to continue working in a capacity consistent with the mandate, that is, without coming into contact with patients or other employees. The Second Circuit’s findings were upheld by the Supreme Court on December 13, 2021, when it rejected the plaintiffs’ request for a stay of the regulations. The same findings will apply to the booster mandate, making it difficult for employees to mount additional legal challenges. Also as with the original vaccine mandate, the booster mandate does not provide any option for testing-out.

While it has not been met with the same level of resistance as the original healthcare worker vaccine mandate, some groups are already pushing back against the booster requirement. One day after the council adopted the booster mandate, 11 counties published a letter urging Governor Hochul to reconsider the new rule. In the letter, they cited severe staffing shortages and the fear that the new mandate would exacerbate what is already a tenuous situation. However, it is unlikely that these objections will gain traction, and the rule is expected to remain in effect for the foreseeable future.

New York was the first state to mandate the COVID-19 booster shot in any manner, but others are quickly following suit.  On Wednesday, January 20, New Jersey adopted a similar booster mandate requiring employees of New Jersey hospitals, nursing homes, prisons and jails to receive the booster. California has also adopted a booster mandate for healthcare workers that will go into effect on February 1.

If you have questions on this topic, please contact Jillian McNeil at jmcneil@jaspanllp.com or Jessica Baquet at jbaquet@jaspanllp.com.