Posts tagged ‘hero act’

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

Updated COVID Guidance To Which Your Credit Unions Should Pay Attention

On June 10th, OSHA published updated guidance called for by the Biden administration intended as general workplace recommendations for employers and industries not subject to specific OSHA mandates.

The most important line in the document is that “Unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure. This guidance focuses only on protecting unvaccinated or otherwise at-risk workers in their workplaces (or well-defined portions of workplaces).” In other words, you have a continuing obligation to protect individuals who are not vaccinated.

For many of us the last year has been a crash course in OSHA regulations. Federal law requires all employers to provide workers with a safe and healthy workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm.”  The pandemic falls into this category. Some industries, such as healthcare, are subject to specific health and safety regulations implemented by OSHA. The guidance to which I am referring is a generic guidance issued for the benefit of all industries not subject to those more specific requirements.

For example, it stresses that “employers should take steps to protect unvaccinated or otherwise at risk workers in their workplaces from the continuing risk posed by COVID. Such steps may include but are not limited to measures we are all very familiar with at this point such as granting paid time off for vaccinations, which is a legal requirement in NYS, and implementing physical distancing for unvaccinated workers in all communal work areas.

The issuance of this regulation raises further questions as to the need for a new law passed in New York which requires employers to adopt workplace health and safety standards for protections against airborne infectious diseases. Employers will have the option of adopting sample policies to be provided by NYS. It’s not clear to me how these policies will be much different than the suggested OSHA guidelines. Then again, New York’s law has a lower standard for imposing legal liability against employers who violate these policies and requires that employers with 10 or more employees give their employees the option of creating workplace safety committees.

On that note, enjoy your weekend. If you’re looking for something to do this morning I will be hosting a webinar looking back at some of the key legislation passed in the recently concluded legislative session.

June 18, 2021 at 9:18 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

Gov Approves HERO’s Act

Good morning folks, with a special shout out to those of you who work in the great state of New York.

The Governor has approved the HERO Act, legislation which mandates that all businesses in NYS implement policies addressing a wide range of issues related to airborne illnesses, such as COVID. For those of you with ten or more employees, you also must give your employees the option of creating committees to address work place health related issues on an ongoing basis.

The bill is phased-in over a six month period with the first requirements taking effect in 30 days. Adopting an approach similar to what we saw when the state passed sexual harassment legislation, the state will be providing sample policies that your credit union can adopt.

One other piece of good news is a reminder that this law applies to both federal- and state-chartered credit unions.

Stay tuned, the Association will be hosting a webinar next Wednesday to take a first look at this important new mandate.

Remote Notarization Hearing Today

At 10 o’clock today, the Assembly will be holding a virtual hearing to analyze issues related to authorizing remote notarization on a permanent basis in New York. Remote notarization refers to the ability of a notary to verify the authenticity of a signature without the signer being physically present. Lisa Morris from Hudson Valley Credit Union will be testifying for the Association.

He’s Back!

The former Benign Dictator of Consumer Finance is back. Ricard Cordray has been given a high profile job at the U.S. Department of Education from which he will oversee issues related to the federal student loan program.  Not coincidentally, his portfolio gives him a high-level platform to address one of the key issues the Biden administration is being pressured to address — whether to forgive or not to forgive all of those student loans — while not being so high as to require Senate confirmation.

California Chimes In

California joined  Illinois’s  financial regulator in prohibiting lending platform Chime from implying in its advertisements and websites that it was a bank as opposed to a lending platform that passes through loans. The state’s actions come as federal and state regulators continue to grapple with the issue of when FinTechs should be classified as banks with the accompanying regulatory requirements that this classification would impose.

Earlier this week the Federal Reserve board issued proposed guidance for the Federal Reserve banks to consider when deciding whether or not FinTechs should be given access to the Federal Reserve System. Don’t underestimate this power: remember it was a Federal Reserve Bank which blocked Colorado from starting a state-level bank to provide marijuana banking services.

Captain obvious here: this is an issue that Congress needs to address sooner rather than later.

On that note, enjoy your weekend. If all goes according to plan, yours truly will be gathering with a group of vaccinated middle age men to play his first round of in-person poker in more than a year.

May 7, 2021 at 9:35 am Leave a comment

Are You Nudging Your Employees To Get Vaccinated?

The HR obstacle course that is the COVID-19 pandemic is entering one of its trickiest phases for employers and employees alike.  In New York, the initial rush to get the vaccine has ebbed and you can now walk in and get a shot without spending hours refreshing your internet browser or scouring your medical history for a qualifying condition.  While this is of course good news, it means that employers must confront the question of whether or not to require their employees to get the vaccine?  Are they going to provide incentives?  Or are they going to simply let the situation play itself out naturally?  Each one of these choices has legal risks and benefits.  And remember, the framework for these considerations could be impacted by the HERO Act, New York State legislation currently pending before the Governor which I talked about in a recent blog.  

First, let’s start with the basics.  Contrary to what your Uncle Al may have told you, you can require your employees to get vaccinated as a condition of employment.  The EEOC has made this abundantly clear, provided you comply with the ADA’s mandate to reasonably accommodate employees who face risks from the shots or who have genuine and sincere religious beliefs.  For example, you may have employees with weakened immune systems for whom taking the vaccine poses clear risks.  For more on this nuanced area of employment law, go to section K5 of this EEOC guidance.  

Let’s assume that your credit union has decided it is better to use a carrot than a stick when it comes to vaccinations.  I was just reading this morning how Orlando Disney is going to make it a wonderful day for its employees who get vaccinated by giving them a bonus. 

But even this simple incentive raises potential legal concerns.  For example, are you violating the ADA if you provide a bonus for which certain employees – such as individuals with weak immune systems – cannot qualify? 

As more and more employees return to the workplace, how are you going to deal with those who have gotten vaccinated and those who have not?  For instance, are you discriminating against employees if you say they can only go on business trips if they have gotten vaccinated?  For an excellent analysis of these issues go to this link.

These questions are not simply the meandering thoughts of a blogger midway through his second cup of coffee.  Yesterday, the EEOC held a hearing in which it asked questions to a wide range of stakeholders urging the EEOC to address precisely these and other issues ASAP.  The good news is that the EEOC has indicated that it plans to do so in the near future. 

In the meantime, take the time to discuss these issues if you haven’t done so already and remember, that even subtle changes could have negative legal consequences if implemented improperly.  Best not to be penny wise and pound foolish; keep your HR attorney in the loop in these discussions. 

April 29, 2021 at 9:59 am Leave a comment

NY Employers Face Extensive New Mandates Under the HERO Act

The Legislature has passed a bill that would require all employers in New York state to adopt comprehensive workplace policies outlining basic obligations related to combating airborne infectious diseases.  The bill is currently before the Governor. 

The HERO Act (S1034B) requires that all New York employers, regardless of their size, adopt minimum policies which address, among other things employee health screenings; availability of PPE; regular cleaning of office equipment and effective social distancing for employees and customers which includes consideration of flexible work hours and remote services. 

Employers would be prohibited from taking action against employees who raise concerns regarding violations of these policies and could face both legal and regulatory actions for policy violations.  The Commissioner of Health will be responsible for developing model policies which take into account industry specific concerns; presumably this means that policies adopted for banks and credit unions would be different than policies adopted for restaurants, for example.  Your credit union will have the option of either adopting these model policies or developing its own policy that meets the requirements of this legislation.    

A second part of the bill creates a framework for a joint employer-employee workplace safety committee applicable to all employers with ten or more employees.  This committee will be empowered to review and comment on workplace safety concerns.  Selecting this committee won’t be as straightforward as you might think.  Employee members of the committee shall be selected by, and from among, non-supervisory employees. Committees shall be co-chaired by a representative of the employer and non-supervisory employees. 

As drafted, it is not entirely clear when these mandates will take effect.  The bill is effective thirty days after it is signed, but the Health Department will have to develop model policies.  What is clear is that employers will have six months to get the workplace committees up and running. 

Go West Young Man

The Census confirmed what we have all known for a while: people are moving to the mountain west.   This will result in a further diminishment of New York’s political power.  The state is slated to lose a Congressional District.

April 27, 2021 at 9:59 am Leave a comment


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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