Posts filed under ‘HR’

NY’s Hero Act Takes Center Stage

With the emergence of the omicron variant (doesn’t that sound like something out of a bad Arnold Schwarzenegger movie?), it may very well feel like we are extras filming a bad sequel, but I’m here to remind all of my faithful readers that the newest surge is coming about under a new statutory mandate which will impact your credit union’s operations regardless of whether you are a state or federal credit union.

I’ve talked about the Hero Act in the past but I think it is worth one more mention as businesses prepare for potential restrictions even as the legality of federal mandates continues to be litigated.

The Hero Act refers to New York State legislation which created minimum state level standards for businesses responding to an airborne infectious disease. Think of it as a state level OSHA mandate but only for airborne infectious diseases as declared by NY’s Department of Health. When the legislation was first enacted in April 2021, we were hopeful that employers would simply have to adopt an infectious disease plan and file it away. In September, however, the Department of Health declared COVID-19 and airborne infectious disease. Now with the emergence of a potentially more infectious variant which may be resistant to existing vaccines, employers should remind themselves of what they have committed to in their workplace policies and the consequences for non-compliance.

For example, in your policies you’ve detailed protocols on a broad range of issues ranging from mask wearing protocols to the appropriate distances between employees.  These are more than aspirational goals. As a matter of New York State law, employees have the right to bring violations of these workplace policies to their employer’s attention. If the employer fails to “cure these conditions” an employee may ultimately refuse to work based on a good faith belief that continuing to do so would expose them to an airborne infectious disease. You can also face fines and litigation.

The bottom line is that not only should you have an airborne infectious disease plan in place but you should make sure that it is being followed and that you have a procedure in place for documenting and responding to employee concerns.

In the meantime, the State has not imposed any additional health and safety requirements for your credit union at this time. However, yesterday Governor Hochul did urge businesses to “encourage” their employees and patrons to wear masks indoors. 

On that happy note, enjoy your day.  Yours truly is going to be scheduling his booster shot.

November 30, 2021 at 9:29 am Leave a comment

Where Do Credit Unions Stand With Vaccine Mandates?

In September the President took two dramatic steps in response to COVID-19, both of which are now subject to litigation: He issued an Executive Order requiring all executive branch agency employees and their contractors to get vaccinated. Secondly, he ordered OSHA to promulgate emergency workplace safety standards mandating employers with 100 or more employees require their employees get vaccinated or agree to get tested for the vaccine on an ongoing basis.

In yesterday’s blog, I explained that credit unions are not subject to the President’s Executive Order because NCUA is an independent agency. In response, a reader asked me if this also meant that credit unions with 100 or more employees were exempt from the OSHA mandate. With the usual caveat that my opinions are my own, and not a substitute for legal advice from your retained attorney, the answer is that credit unions would be subject to OSHA’s vaccine mandate, but it remains to be seen whether or not it will ever take effect.

The financial service industry has not had to give much thought to OSHA in the past because it has never been made subject to industry specific workplace safety standards. Under the law regulating OSHA, however, an employer is any business engaged in commerce, a category which certainly includes credit unions of all shapes and sizes. As a result, if the OSHA mandated vaccine requirement ever takes effect, every credit union with 100 or more employees will have to comply. 

But it is far from certain that this requirement will ever make it through the legal gauntlet. The Court of Appeals for the Fifth Circuit has already issued a nationwide order blocking OSHA from implementing the emergency standard. In its decision, the Court explained that OSHA was exceeding the power given to it by Congress because the vaccination mandate “is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address.” BST Holdings, L.L.C. v. Occupational Safety and Health Administration, United States Department of Labor, 2021 WL 5279381, at *4 (C.A.5, 2021)

The next stop is the Sixth Circuit, but there is virtually no doubt that the issue will ultimately be decided by the Supreme Court, a court which has taken an increasingly narrow view of administrative powers.

So where does this leave credit union HR professionals as they ponder next steps? Most importantly, if you were hoping that the law would mandate that your employees be vaccinated, then you should prepare yourself for disappointment. That being said, no matter what happens with the President’s proposals, your credit union still has all the authority it needs to mandate vaccination and/or testing if it chooses to do so for those employees in the workplace.

On that note, enjoy your Thanksgiving and don’t let your crazy Uncle Al get under your skin.

November 23, 2021 at 10:13 am Leave a comment

NYS Issues Guidance On Cannabis Use In The Workplace

When it comes to employee use of cannabis in the workplace, you better be using a scalpel and not a sledge hammer. That’s my Captain-Obvious takeaway from recently released and helpful guidance issued by New York’s Department Of Labor answering a series of questions it has received from New York employers scrambling to comply with New York law now that the recreational use of pot is legal for individuals 21 years of age or older. 

The Marijuana Regulation and Taxation Act (MRTA) has two major components. First, it authorizes the creation of a licensed industry to facilitate the production, sale, and distribution of recreational cannabis to individuals 21 years or older in New York State. This component of the bill is behind schedule as the state has only recently appointed the key individuals who will be responsible for overseeing the creation of this new industry. A second component of the bill legalized the recreational use of cannabis. This part of the bill is already in effect. This has several challenging implications for employers big and small in New York State.

To provide just one narrow example of the type of issues employers have to deal with, keep in mind that, subject to certain exceptions, an employer can only take action against an employee when the employee, while working, manifests specific articulable symptoms of cannabis impairment that interfere with the employer’s obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws. This promises to be one of the great tripwires of litigation for years to come. There is no definitive list of what satisfies this criteria. Instead, the determination will be an extremely fact sensitive one. 

This means of course that if you haven’t started training your supervisors on what steps to take when confronted with a potentially stoned employee you better start now. This is just one small example of the type of issues raised by the new law. The guidance won’t provide you all of the answers but it will give you a concise place to find all the questions you should be asking. 

FinCEN Documents Sharp Rise in Ransomware Attacks

A report released by FinCEN on Friday confirms what we have known anecdotally for months: the COVID 19 pandemic has been accompanied by a sharp rise in ransomware attacks over a broad cross section of industries. There have been a total of 590 million ransomware SAR filings in the first 6 months of the year. According to FinCEN this represents a 42% increase compared to the same period last year.

Of course, this makes it the perfect time to increase financial reporting requirements for perfectly legal account transactions. Note the sarcasm.

On that happy note enjoy your day. 

October 18, 2021 at 9:30 am Leave a comment

What To Do When Your Employee Requests A Religious Accommodation

There are three things I know for certain this morning: One is that I will get more sleep with the Yankees not in the playoffs (I have no idea why they have to start games so late).

Secondly, the Bronx Bombers will overpay for marquee talent in the off-season and be proclaimed World Series favorites by the baseball intelligentsia even though they have won only one World Series in the last 19 years.

Finally, your credit union will most likely have to decide how to respond to an employee who wants a workplace accommodation based on their religious beliefs. As much as I would like to continue my Yankee diatribe, I have a sneaking suspicion that the last topic has more relevance to your credit union day. Here is a quick primer designed to get you thinking about your own HR protocols.

First, under both state and federal law, employers are responsible for working with employees whose genuine and sincere religious beliefs conflict with their employment obligations. This means that if your credit union either mandates vaccinations or is ultimately mandated to make sure it’s employees are vaccinated, there may be employees who refuse to get vaccinated on religious grounds. 

What is a genuine and sincere religious belief? Suffice it to say that the courts are not comfortable with employers second guessing what constitutes a religious belief. In one recent case, a West Virginia coal miner successfully sued for religious discrimination after he resigned rather than use a hand scanner to check into work. He explained that hand scanners constituted the mark of the devil. In upholding his lawsuit the court explained that “it is not an employer’s place, nor a court’s place, to question the correctness or even the plausibility of an employee’s religious understandings.” [U.S. Equal Employment Opportunity Commission v. Consol Energy, Inc., 860 F.3d 131 (C.A.4 (W.Va.), 2017)]. On a practical level, this means that if you find yourself debating how religious the employee really is or debating doctrine you are going down the wrong path. You can, however, ask for a connection between the religious beliefs and refusal to get vaccinated. 

Assuming the employee has a genuine and sincere religious belief which conflicts with a vaccine mandate, are you required to accommodate the employee? Maybe, maybe not. Under both state and federal law an employer doesn’t have to accommodate an employee where doing so would constitute an “undue burden.” Under federal law, an undue burden has been defined as any accommodation that requires an employer to make any accommodation for an employee’s religion if doing so would pose more than a “de minimis” burden. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).

In contrast, New York has a much higher standard for employers claiming hardship under New York law [N.Y. Exec. Law § 296(10)(d)(1)]. An undue hardship means an accommodation requiring significant expense or difficulty including a significant interference with the safe or efficient operation of the workplace. What standard will ultimately be applied to your credit union may vary depending on the legal basis for a vaccine mandate. For now, keep in mind that as New York employers, your credit union may have to deal with a higher standard. 

So what does all this mean? It means that you are not going to categorically reject an employee’s request for religious accommodation. Instead, you are going to discuss the need for a religious accommodation and assuming that the requested accommodation is genuine and sincere you are going to develop a framework for accommodating employees when it is reasonable to do so and be prepared to explain to both the employee and the courts when you decide doing so constitutes an undue burden. You want to make sure that you treat all accommodations in as fair and equitable a way as possible given the need to run your credit union.

As you can see, these are tricky issues.  If you are confronted with a request, you are being penny wise and pound foolish if you don’t consult with your friendly neighborhood HR attorney.

On that note, Go Rays!

October 6, 2021 at 10:53 am Leave a comment

Will Biden’s Executive Order Apply to Credit Unions?

Yesterday, President Biden took his most aggressive action yet to combat the spread of COVID-19.  First, he ordered the Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard that will “require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work” and must give employees paid time off to get the vaccine and paid time off to recover from any side effects.  Secondly, the President is ordering the establishment of guidelines mandating that federal contractors be vaccinated.  The precise impact of these orders on your credit union’s operations remains to be seen.

With the exception of certain industries, OSHA has not promulgated federal workplace safety standards in relation to COVID-19.  This is why New York felt the need to fill this gap by passing the HERO Act.  As I explained in a recent blog, New York’s Commissioner of Health has declared COVID to be a highly infectious disease which means that all New York employers must now have health screening protocols in place.  We will have to wait for the OSHA standards to see precisely what is going to be required of larger employers beyond the state mandates.

Another tricky issue that needs to be clarified is whether or not financial institutions are going to be considered federal contractors for purposes of the President’s vaccine mandate.  The President’s Executive Order technically does not mandate vaccinations, but instead mandates that guidance be issued defining precisely who is to be considered a federal contractor.  However, the President’s order stipulates that the definition of a federal contractor will be based on regulations being promulgated by the Department of Labor mandating that contractors provide a $15 minimum wage to their employees.  In addition, there must be a regulatory finding that the President’s actions will advance efficiency in the federal government’s procurement processes.  This last point is particularly important since the inevitable legal challenges to the President’s announcement yesterday will most likely be based on challenging the regulatory authority of the executive to issue these mandates. 

All this means we are weeks, and maybe months away from any additional vaccine mandates.  In the meantime, an increasing number of employers are mandating that their employees be vaccinated.  Of course, check with your attorney, but they are on solid legal ground in doing so, and your credit union would be as well. 

September 10, 2021 at 10:59 am Leave a comment

Can You Answer These Questions?

Just like there are people out there who read the obituaries, taking silent satisfaction from the fact that they are not the ones being written about, let’s face it, there are those of us who are silently relieved when they read the latest blogs and trade press and confirm that their credit union has not been victimized in a way that makes the news. 

Recently there has been a lot of talk in credit union land about the fired credit union employee who plead guilty to taking revenge on her former employer by destroying sensitive information maintained on the credit union’s computer network. The credit union apparently had the right procedures in place but the employee’s access to the computer network was not turned off, resulting in $10,000 in recovery costs.

While you may be relieved that your credit union is not the victim, the incident underscores that, irrespective of your credit union’s size, it is incumbent to know precisely where your information is, and who has access to it. By the way, this is important not only to guard against an employee going mad but because federal and state law will increasingly make it essential for your financial institution to know who has access to what information and why as well as to accommodate the requests of your member’s to transfer or delete information.

With that long winded lead-in, how would you answer these questions?

  • Does your computer network allow you to make distinctions between the level(s) of access provided to employees?
  • Assuming it does, who decides what person(s) get access to the different parts of the network?
  • In your vendor contracts, do you require that vendors only have access to the computer network that they need to perform their job?
  • That vendors will only use the information for the purposes for which they have contracted?
  • That they have protocols in place to ensure that access to your network is terminated when employees leave or the job is done?
  • Do you require your employees to use multi factor identification to access the computer network?
  • Do you hold employees accountable for repeatedly failing to comply with basic cyber security protocols such as repeatedly clicking on suspicious links?
  • Most importantly, do you think Toronto is going to pass the Yankees or the Red Sox to get a wild card spot? I asked that last question to see how many of you were still paying attention.

The point I’m trying to make with all these questions is that your credit union must design safety protocols which limit network access to employees that need the access; that allow you to track where your information is located and that allow you to quickly access this information. No one is capable of anticipating or guarding against all of the wacky ways your network may be attacked, but proper compartmentalization of data will help minimize damage and help prepare you for data portability standards.

September 9, 2021 at 9:57 am Leave a comment

Time To Activate Your Infectious Disease Safety Plan

On September 6th, New York’s Commissioner of Health triggered increased employee protections by classifying COVID-19 as a communicable disease that presents a “serious risk of harm to the public health in New York State.” This means that all New York State credit unions should review and activate their workplace safety plans. Remember, failure to do so is a violation of the law.

As readers of this blog know, former Governor Cuomo signed legislation mandating that the State’s Department of Labor, in consultation with the Department of Health, promulgate model standards describing the minimum steps employers must take to protect their employees in the event of an outbreak of an airborne infectious disease. Under the law, all employers had to have these policies and procedures in place by August 5th. However, since the Commissioner of Health had not formally designated COVID-19 as an infectious disease under the statute the policies and standards were not in effect. The Department of Health’s announcement changes all that.

Now that the designation has been made, your credit union should be reviewing its policy and implementing its provisions. I’m assuming that for many of you, this won’t be difficult as many of your practices already complied with steps that have been taken to mitigate the spread of COVID, such as rearranging work spaces and having appropriate PPE. However, for those of you who need to take additional steps, or worse yet, have not gotten around to adopting a policy and standard, you should do so now.

In activating these policies remember that one of the primary purposes of the law was to provide employees increased protections in the event that adequate workplace safety procedures are not being implemented or complied with. Your employees are protected against retaliation in the event they bring alleged violations to your attention and your credit union could be fined and sued for violating the law.  Remember, this applies to you whether you are a state or federal credit union. 

September 8, 2021 at 9:27 am 1 comment

What FDA’s Vaccination Approval Means For Your Credit Union

The announcement yesterday that the FDA has given final approval to the Pfizer COVID-19 vaccine puts employers at the center of the debate about how to respond to the continuing COVID-19 health crisis.

The FDA’s decision provides further clarity regarding the rights of employers to mandate that employees get vaccinated as a condition of employment. Before yesterday’s announcement, vaccination opponents had argued, without legal success, that the emergency process used to initially approve the COVID-19 vaccine meant that individuals could not be forced to get vaccinated as a matter of federal law.

Now that argument is irrelevant. Within minutes of the announcement several employers announced that vaccinations would now be mandatory for their employees. Federal guidance already authorizes vaccine mandates and the Supreme Court ruled more than 100 years ago that there is no constitutional right not to be vaccinated. The vaccine announcement also comes at a unique time for employers in New York State. We have a new Governor and in recent weeks the state has largely avoided imposing new statewide mandates. Once again, this means that as employers you have more flexibility than ever before.

Now don’t get me wrong, just because you can legally do something doesn’t mean it’s a smart thing to do. The goal should be to maximize the number of employees who are safe and vaccinated. Whether this goal is best accomplished with a carrot instead of a stick is a case-by-case decision. But now that the legalities have been dealt with, policies should be clarified. Time to get that HR attorney back on the phone.

August 24, 2021 at 9:21 am 1 comment

What the CDC’s Announcement Means for Your Credit Union

The CDC’s announcement that it was altering its guidance to encourage vaccinated individuals to wear masks indoors in areas with substantial and high transmission rates may very well result in your credit union having to refine its workplace policies and procedures. The Governor issued a statement indicating that the state is reviewing the announcement. In the past the state has used CDC guidance to establish the baseline expectations for businesses in New York. Here is what we know for sure.

The state lifted its mask mandate for fully vaccinated individuals because, as of June 15th, 70% of New Yorkers had received at least one dose of the vaccine. What’s changed? The Delta variant of the virus has proven to be particularly tenacious and evidence is emerging that even fully vaccinated individuals can transmit the disease. Plus there are still a substantial number of individuals reluctant to get vaccinated. As can be seen from this map issued by the CDC, New York State has substantial numbers of new COVID cases.

The surging virus has forced employers to reconsider legal options when it comes to keeping their workplace safe. For example, the Veterans Administration announced that it was mandating that some of its employees get vaccinated and New York City is taking similar steps. The shift to a more aggressive posture reflects the mounting number of administrative rulings and judicial decisions which have reinforced that employers can mandate employee vaccinations provided they are mindful of genuine and sincere religious objections as well as the need for ADA accommodations.

One bellwether case that the legal community is watching is Bridges v. Houston Methodist Hospital, 2021. The case involves a nurse who was fired by the hospital after refusing to get vaccinated. The case is one of the first in which a federal court has directly addressed an argument, popularized on the internet, which contends that since the vaccines were approved on an emergency basis by the Secretary of Health and Human services they can’t be mandated by employers. The plaintiff also contends that the status of the vaccines mandates that employers explain the potential benefits and risks of taking the vaccine.

The district court swiftly rejected this argument. According to the court, federal law permits the Secretary of Health and Human services to authorize the vaccines on an emergency basis. Crucially, according to the court, “it neither expands nor restricts the responsibilities of private employers; in fact, it does not apply at all to private employers like the hospital in this case.”  This case is currently up on appeal before the Fifth Circuit.  If this case doesn’t give employers confidence to mandate vaccinations, the Secretary of Health is expected to approve the vaccine on a non-emergency basis sometime in the fall.

In addition to this case, in May the EEOC issued guidance authorizing employers to mandate vaccinations consistent with Federal Civil Rights Law.

And then of course there is New York State’s Hero Act. At this point the law requires nothing more than for employers to have an infectious airborne disease plan in place by August 5th. The plan only needs to be activated in the event that the Commission of Health issues a declaration that an airborne infectious disease presents a serious risk of harm to the public health. No such announcement has been made but recent events underscore the need to make sure you are ready to comply with NY’s law.

July 28, 2021 at 9:40 am Leave a comment

Important Updates on EEOC guidance and NYS Infectious Disease Standards

Memorial Day may mark the unofficial start of summer but last week added several things to your HR person’s to-do list before she goes on vacation.

First, amendments have been proposed to a recently passed NYS law – the HERO Act – imposing state level infectious disease work place safety standards on all employers and mandating that those with ten or more employees authorize the creation of worksite health committees. The changes will narrow employer obligations but even with the anticipated changes there is still work to be done.

Under the original legislation, the state was going to be responsible for developing infectious disease standards by industry. This chapter amendment clarifies that standards will only vary for the largest industries in the state and those determined by the Commissioner Of Health to have unique requirements. This means that many employers will be able to comply with this law by adopting a general model policy standard to be issued by the state.

You’ll also have more time to prepare for these changes.   Under the existing legislation, parts of the law were going to take effect in less than 30 days. In contrast, you are now required to implement these policies within 30 days after they are published by the Commissioner of Health.

Another area of concern addressed by these changes involves an employer’s scope of liability.  Most importantly, only employees who can demonstrate they are harmed by violations of the new standards will be able to sue employers.  The changes also eliminate liquidated damages and require employers to be given notice of violations before being sued.

Under the law, employers with 10 or more employees will have to give employees the option of creating workplace safety committees. The proposed changes slightly narrows the scope of these committees by clarifying they have no jurisdiction to analyze Workers Compensation policies. In addition, committee meetings can now be limited to two hours per quarter.

                                                                EEOC Issues Vaccination Guidance

On Friday the Equal Employment Opportunity Commission issued important guidance clarifying that employers can require employees to be vaccinated provided they are mindful of the need to reasonably accommodate employees with disabilities and those who hold genuine and sincere religious beliefs that may keep them from wanting to get vaccinated. It also gives a green light to employee vaccination incentives.

Since the roll-out of vaccinations, employers have grappled with how best to get their workplaces vaccinated. The guidance closely tracks advice that many lawyers have already given employers. There are several qualifications to the EEOC’s guidance and you would be well advised to closely read the guidance before making any policy changes.

June 1, 2021 at 9:40 am Leave a comment

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Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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