Posts tagged ‘OSHA’

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

What The End of New York’s State of Emergency Means For Your Credit Union

When you specialize in compliance, even good news can keep you up at night. So it goes with Governor Cuomo’s announcement that he was ending the state of emergency he imposed on March 7th 2020 in response to this thing called COVID-19.

On the one hand, this is of course great news; on the other hand almost immediately, the Association started receiving phone calls about what effect this would have on existing policy and procedures put in place during the pandemic. With the caveat that this is not intended as a definitive list, here is what we know so far:

The executive orders authorized notaries to notarize documents over the internet. This authority has ended. The Department of State issued this memo informing us that effective June 24th, this authority came to an end. Clearly this prohibition is intended to apply prospectively but for those of you who do mortgages don’t be surprised if title insurers raise questions about the validity of your notarizations. They are a nervous a lot. The good news is that the legislature passed a bill to permanently authorize remote notarization.  Perhaps this will spur quicker action on that bill.

An executive order had extended the expiration date of licenses. I know credit unions have relied on this authority when opening up new accounts for members. This authority also came to an end on June 24th 2021. You may want to put a note in your files so that future employees and examiners reviewing account documentation understand that appropriate procedures were used.

Lending was of course another area where the executive orders had a big impact. But many of those early executive orders issued by the Department of Financial Services have been superseded by laws passed by the Legislature. Most importantly § 9-X of the Banking Law which mandates loan forbearance periods for individuals impacted by COVID-19 applies between March 7th 2020 and the latter of December 31st 2021, or the end of the emergency orders. In addition, pursuant to law, New York’s foreclosure moratorium remains in effect until August 31st 2021.

Then there are of course the HR issues. You still have an obligation under both New York law and general OSHA standards to protect your employees against the spread of COVID. This means that you still have to address issues such as mask mandates and vaccination requirements.

All this means that, as my man Winston Churchill would say, “Now, this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”

On that note, enjoy your day.

June 28, 2021 at 10:14 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

Preparing for the COVID-19 Endemic

“Vaccination drives hold out the promise of curbing Covid-19, but governments and businesses are increasingly accepting what epidemiologists have long warned: The pathogen will circulate for years, or even decades, leaving society to coexist with Covid-19 much as it does with other endemic diseases like flu, measles, and HIV.”

So said the Wall Street Journal earlier this week. This reality several important legal issues for your credit union to manage as it transitions from pandemic to endemic operations. For instance, one of the key questions with which you should all be grappling, if you haven’t done so already, is whether or not to mandate that your employees receive the vaccine. As I explained in this blog, the EEOC has provided guidance for those institutions which choose to make the vaccine mandatory. Keep in mind that this is a very fluid area of the law. For example, one case that will provide some guidance to New York State businesses on the interplay between the Americans With Disabilities Act (ADA) and vaccine requirements is Norman v. NYU Langone Health System. The district court ruled in September that an employee’s allergy did not qualify them for an exemption from a mandatory vaccination under the ADA. But this case is being appealed, giving the court the opportunity to explain its thinking on this important area of the law just as businesses look to determine their new policies. 

Another important source of information is this guidance issued by OSHA within days of the Biden Administration taking over. It suggests that employers should make COVID-19 vaccinations available to eligible employees, as well as to provide information and training on the benefits and safety of vaccinations. Against this backdrop, you should all consider updating your policies to – at the very least – encourage your employees get voluntarily vaccinated. A voluntary policy avoids many of the legal complications involved with a vaccine mandate while still effectively stressing the importance of workplace safety. In the meantime, the Association has stressed to both the Department of Financial Services and the Governor’s office the importance of making frontline financial workers eligible for the vaccine as soon as possible. 

Another issue for your credit union to consider as it learns to live with COVID is to recognize that even after vaccination becomes widespread, many of the new conditions you put in place are here to stay. As the Wall Street Journal pointed out, there are already burgeoning industries based on that assumption. In the future, rapid testing – not only for COVID-19, but for the flu – will probably become par for the course.  What this means is that one should not assume that the conditions you have put in place today like increased social distancing and an emphasis on healthier buildings will disappear with the pandemic. 

On that note, enjoy your long weekend. Yours truly has no idea what he will do with all the free time he has now that the football season has come to an end.

February 12, 2021 at 9:30 am Leave a comment

Are you prepared for the next pandemic?

I certainly don’t want anyone to overreact, but as I was getting ready to go this morning, I listened to the news that the coronavirus is continuing to spread. In addition, with an incubation period of 14 days, an epidemiologist interviewed on Bloomberg predicted that as many as 100,000 people could ultimately be infected.

It’s time to start dusting off those continuity plans addressing what steps your credit union would take in the event of a wide-spread virus. Here are a couple of good places to start:

In 2006, there was wide-spread fear of an influenza pandemic. The financial regulators, including the NCUA, responded with this inter-agency statement on Pandemic Planning.

In 2014, we had the Ebola Outbreak. One of the most helpful analyses of the legal issues confronted at the time by employers was this blog post from Bond Schoeneck & King, which addressed issues such as the extent to which employers could inquire about employees’ travel plans.

There are also regulations you are already subject to. For example, Federal law requires employers to provide employees a place of employment free of “recognized hazards that are causing or are likely to cause death or serious physical harm” to employees (29 USCA section 654). Consistent with this obligation OSHA issued this guidance during the flu epidemic.

Now I want to stress that all of these outbreaks are unique and raise different issues. Furthermore, I’m not aware of any formal regulatory requirements that have been imposed on financial institutions as a result of the coronavirus. But as I like to say, I am paid to be paranoid, and now is a good time to start answering the questions that you could be asked if this virus spreads.

Another day, another data breach

In the immortal words of the second greatest American entertainer of the 20th Century, Ray Charles, “Here we go again.” KrebsonSecurity is reporting that convenience store chain Wawa has been victimized by a nine month data snatching security breach. This is based on news that the bad guys are already offering to sell personally identifiable information on the dark web. Rather than go through the usual litany of complaints I think I’m just going to let Ray Charles finish out the blog with one of my favorite songs:

I’ve been there before
And I’ll try it again
But any fool knows
That there’s no way to win
Here we go again
She’ll break my heart again
I’ll play the part again
One more time

 

 

 

 

 

 

January 29, 2020 at 9:32 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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