In February 2021, New York State Attorney General, Letitia James, filed a lawsuit against Amazon alleging that the retailer failed to sufficiently prioritize hygiene, sanitation and social distancing at its fulfillment center and delivery station in New York City.1 The Complaint also alleged that Amazon unlawfully terminated employees at those locations who complained about conditions they perceived to be unsafe.2 The Complaint asserted causes of action under various sections of the New York Labor Law (NYLL), including Sections 200, 215 and 740, all of which “relate to the obligations of New York businesses to adequately protect the health and safety of employees and to refrain from discrimination or retaliation against employees who complain about potential NYLL violations.”3
On April 1, 2022, New York’s Public Health Law § 2895-b regarding nursing home staffing levels went into effect. The law, initially meant to take effect on Jan. 1, 2022, was suspended by executive order in light of ongoing staffing shortages caused by the COVID-19 pandemic. On March 31, 2022, Gov. Hochul declined to extend the suspension. Nursing homes across New York must now comply with this law.
On March 14, 2022 the EEOC issued new guidance regarding Caregiver Discrimination against employees or applicants who are caregivers, as it relates to the COVID-19 pandemic.1 Note that this guidance supplements, but does not appear to supplant, earlier Caregiver Discrimination Guidance from the EEOC.2 Although these documents are crafted with the pandemic in mind, employers should be mindful of these issues within the broader professional context, as well.
On March 18, 2022, the NYS Department of Labor updated its NY HERO Act website to confirm that the NYS Commissioner of Health’s designation of COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” ended on March 17, 2022.
On March 1, 2022, the EEOC updated its guidance on religious accommodations to COVID-19 vaccine mandates. While the guidance states that job applicants and employees have a right to request a religious accommodation from an employer’s COVID-19 vaccination requirement under Title VII, the new guidance answers many questions specific to COVID-19 vaccination requirements and specifically addresses how employers should evaluate an employee’s religious objection to the vaccine.
On Feb. 15, 2022, the NYS Commissioner of Health extended the NY HERO Act designation for a fifth time through March 17, 2022. The Commissioner will review the CDC’s level of transmission of COVID-19 at that time and determine whether to continue the designation (extend further) or not. Based on the Commissioner’s designations, if the CDC’s level of transmission in New York continues to be “high” or “substantial,” it seems highly likely that the Commissioner will continue the designation.
The wait is over. On Jan.13, 2022, the United States Supreme Court issued a decision to stay the Occupational Health and Safety Administration’s (OSHA) vaccination or test emergency temporary standard (ETS), effectively blocking the enforcement of the ETS for the foreseeable future.
It seems that change is the only constant when it comes to OSHA’s Vax or Test Emergency Temporary Standard (ETS). Here is the current status:
The Supreme Court’s Decision is Pending
On Friday, Jan. 7, the United States Supreme Court heard oral arguments regarding the ETS at a special session of the Court.1 Challengers to the ETS requested that the Court issue a stay to stop the ETS before Jan. 10, stating that the mandate was overly broad and was a question that should be left to Congress or to be decided at the state-specific level. Though one cannot predict how the Court will rule, based on their line of questioning, a majority of the justices appeared to be skeptical of the ETS with Justice Alito quoting the late Justice Scalia when he described OSHA’s interpretation as “squeezing an elephant into a mousehole.” At the hearing, Justice Gorsuch and Justice Kavanaugh focused on the Major Questions Doctrine.2 The justices also focused on whether OSHA had the authority to mandate a vaccine that impacts not only the workplace, but also employees’ lives outside the workplace, and is, to quote Chief Justice Roberts, an “out-in-the-world issue.” Additionally, the justices floated the idea of issuing a brief administrative stay until they could make a decision. Solicitor General Prelogar, appearing for OSHA, obviously disagreed and said that the Jan. 10 deadline did not pose a major burden on businesses, except for imposing mask requirements. The Court has announced that it will be issuing “one or more opinions” on Jan. 13. It is unclear if one of these opinions will be with respect to the ETS. We are awaiting the Court’s decision and will keep you informed.
On Dec. 24, 2021, the New York State Department of Health (NYSDOH) issued updated isolation and quarantine guidance for fully vaccinated healthcare and other essential workers infected with COVID-19, allowing them to return to work after five days of isolation, so long as each worker is asymptomatic, or their symptoms have mostly resolved.
On Dec. 27, 2021, the Centers for Disease Control and Prevention (CDC) issued updated guidance for isolation and quarantine for the general population, which New York State also adopted on Jan. 4, 2022, replacing its December 24 guidance, with the exception of New York State maintaining a separate standard for healthcare workers. Following is a description of the current quarantine standards for the general population and healthcare workers in New York State.
On Dec. 22, the New York State Department of Labor (NYSDOL) published long-awaited proposed regulations relating to the second half of the NY HERO Act relating to workplace safety committees.
By way of brief background, on May 5, 2021 the state signed the NY HERO Act into law. The NY HERO Act added two new sections to the New York Labor Law: (1) New York Labor Law Section 218-b, regarding occupational exposure to airborne infectious disease, which created certain obligations for private employers and protections for employees, including the requirement to adopt an “airborne disease exposure prevention plan”; and (2) New York Labor Law Section 27-d, dealing with employee rights to form workplace safety committees. The first part of the NY HERO Act (NYLL 218-b) went into effect on July 4, 2021. The second part of the NY HERO Act (NYLL 27-d) went into effect on Nov. 1, 2021.
It seems that new details about the status of OSHA’s Vax or Test Emergency Temporary Standard (ETS) are emerging daily! On Dec. 22, 2021, the United States Supreme Court announced that it will expedite hearing arguments regarding the ETS at a special session of the Court on Jan. 7, 2022.1 This announcement comes on the heels of a rapid succession of litigation and court orders. In early November 2021, the Fifth Circuit had temporarily stayed implementation of the ETS, which was later lifted by the Sixth Circuit on Dec. 17. Almost immediately, plaintiffs challenging the ETS filed several requests with the Court asking the justices to order an emergency stay of the rule. Please review Bond’s Dec. 20, 2021 blog post for additional details.
