On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) requiring all employers with 100 or more employees, with a few exceptions, to mandate vaccination or test employees weekly for COVID-19. OSHA justified the ETS by citing a “grave danger” posed by the coronavirus. Covered employers are required to develop, implement and enforce either a mandatory COVID-19 vaccination policy or a policy requiring employees to choose to get vaccinated or to undergo regular testing and wear a face covering at work. In addition, the ETS requires employers to provide paid time off for workers to get vaccinated and paid sick leave for employees to recover from any side effects resulting from vaccination.
On Oct. 31, 2021, the NYS Commissioner of Health announced the further extension of the designation of COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” through Dec. 15, 2021.
On Sept. 30, 2021, the Department of Health and Human Services published guidance, “HIPAA, COVID-19 Vaccination, and the Workplace,” (the Guidance) that details the ways in which the Health Insurance Portability and Accountability Act (HIPAA) intersects with workplace and other third-party inquiries regarding COVID-19 vaccinations.
Executive Order 14042 (the Order) generally requires federal agencies and executive departments to ensure that covered contracts and contract-like instruments include a clause that requires covered contractors (and subcontractors) to comply with COVID-19 safety protocol guidance published by the Safer Federal Workforce Task Force, including as it may be updated in the future.
It is official–the NYS Commissioner of Health officially posted the extension of the designation of COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” through October 31, 2021.
The federal District Court for the Northern District of New York issued a temporary restraining order (TRO) on Sept. 14, 2021, enjoining New York State officials from enforcing emergency regulations imposing a vaccination mandate for certain healthcare workers to the extent that the regulations do not allow for a religious exemption to the mandate. The TRO is available here. As reported here previously, the emergency regulations, which were issued on August 26 by the Public Health and Health Planning Council under the New York State Public Health Law, apply to hospitals, nursing home and home health agencies, among other entities. The emergency regulations were notable for not including provisions for a religious exemption or any test out provisions. The court’s TRO places the lack of a religious exemption provision on hold, pending the outcome of the proceeding.
New York employers are presently “activating” their HERO Act plans, after the New York State Department of Health (DOH) officially designated COVID-19 as a “highly contagious communicable disease that poses risk to the public health.”
On Sept. 6, 2021, Gov. Kathy Hochul directed the NYS Commissioner of Health to designate COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health. The designation is official and available on the NYS Department of Health (NYSDOH) website.
The following article ran as a guest opinion in the July 29, 2021 edition of the Rochester Beacon and it is reprinted here with permission.
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Since the first COVID-19 vaccines were granted emergency use authorization by the Food and Drug Administration in December, many businesses have wrestled with whether to impose vaccine mandates for their employees. This is a difficult question, with many considerations, including whether such a requirement is necessary or practical. Perhaps the most significant consideration, with which businesses and lawyers have struggled, is whether such a requirement is “legal.”
On the evening of July 6, 2021, the NYS Department of Labor (DOL) published the long awaited “Airborne Infectious Disease Exposure Prevention Standard” (Standard), a general “Model Airborne Infectious Disease Exposure Prevention Plan,” and several industry specific model prevention plans as well. These are now available on the DOL’s website. The model plans are currently available in English, but the website states that they will also be available in Spanish soon, as required by statute.
As previously reported, the New York Health and Essential Rights Act (HERO Act) was signed into law by Gov. Andrew Cuomo on May 5, 2021. The governor announced that his approval was based on his having secured an “agreement” with the NYS Legislature to make certain “technical changes” to the bill. On May 26 the amendments passed in the NYS Senate, and on June 7, they passed in the NYS Assembly. On Friday, June 11, the bill was delivered to and signed by Governor Cuomo.
