Posts tagged ‘vaccination’

OSHA Mandate Alive and Well, For Now

Usually I dedicate my last blog of the year to highlighting what’s best about the credit union movement, but recent events have made me feel like an extra in a movie where Scrooge meets Groundhog Day. Here’s more news on the OSHA mandate with which employers of 100 or more individuals must be in compliance with, starting January 10th.

On November 5th OSHA issued an Emergency Temporary Standard (ETS) generally requiring employers with 100 or more employees to either mandate all of their employees wear masks and agree to get tested on a weekly basis or mandate all of their employees get vaccinated.

Groups opposed to this standard ran to court quicker than the Omicron variant is spreading. The Court of Appeals for the Fifth Circuit issued an order banning OSHA from enforcing the emergency standard. On Friday, the Court of Appeals from the Sixth Circuit reversed this ruling meaning that you should be preparing to comply with OSHA’s mandate. The next stop is the Supreme Court.

Remember that the core legal issue that the courts are ultimately deciding is not whether employers can mandate that their employees get vaccinated or wear a mask but whether OSHA has the legal authority to issue health and safety standards related to a pandemic. In the meantime none of this has any impact at all on New York City’s mandate requiring employers to mandate that employees working in an office be vaccinated starting December 27th.

This is not a very merry note on which to end my last blog of the year, so Merry Christmas, Happy New Year, thanks for reading and let’s hope that 2022 is a heck of a lot better than the last two years that have preceded it.

December 22, 2021 at 9:09 am Leave a comment

The Direct and Immediate Impact of New York’s COVID Mandate

Yours truly gives himself a wide scope to delve into when it comes to material for this blog. But, I never thought I’d be delving into New York’s Public Health Law as part of my research. But then again we live in strange times, don’t we?

As I’m sure you know, on Friday Governor Hochul announced that businesses are required to either insist that individuals show proof of vaccination or require everyone to wear a mask before entering a building.  This has a direct and immediate operational impact on your credit union.

Most importantly, it applies to your credit union regardless if it is state or federally chartered. In addition, unlike the proposed OSHA mandate which is currently being litigated, it applies to all businesses regardless of how many employees they have.  It also applies to all credit union branches.  You can comply with this new mandate by either requiring all persons entering a branch to show prove that they have been vaccinated or, more realistically, by requiring all persons entering a branch to wear a face mask. 

The new mandate can be enforced by the Department of Health and also by the Department of Labor. Remember that under New York Law, your employees have an explicit right to bring issues regarding the spread and prevention of airborne infectious diseases to your attention and sue you in the event that you fail to take appropriate remedial action.

What I am getting at is that New York’s new mandate will have a more direct impact on your credit union than the proposed OSHA mandate. And whereas the OSHA mandate may never make it through the legal gauntlet, states such as New York have long had the statutory and regulatory framework needed to directly address public health issues. Remember, pandemics have been around for hundreds of years but states and localities have historically had the primary responsibility to deal with them.

On that note, put that mask on and enjoy the day.

December 13, 2021 at 9:13 am 1 comment

What OSHA’s Vaccine Standard Means For Your Credit Union

It’s here! OSHA’s Emergency Temporary Standard mandating that businesses with 100 or more employees establish vaccination or regular testing policies, a regulatory pronouncement that has been more eagerly anticipated than a red wagon on Christmas morning, now starts the clock on additional workplace requirements. 

Here are some of the highlights after my initial review of this regulation:

  • Most importantly, this only applies to those of you with 100 or more employees. That being said, however, OSHA is accepting comments on whether or not it should extend this mandate to smaller employers.

If your credit union has determined that it is going to comply with the Executive Order mandating that employees of all federal contractors be vaccinated, then it does not have to comply with this regulation. However, NCUA has never taken the position that credit unions are federal contractors simply because they accept share insurance. I will provide further details on why I think this is so important to your credit union’s vaccination decisions in an upcoming blog.

  • This mandate does not apply to everyone. The preamble makes it clear that it does not apply to employees who work “exclusively” from home. In addition, remember that even with OSHA’s mandate, employees still get the protection of federal law when it comes to religious accommodations and the ADA.

This morning, I’ve already heard some mischaracterizations regarding precisely what is now mandated.  

  • Employers can mandate that all their workplace employees get vaccinated; mandate that all their employees either get vaccinated or get weekly COVID-19 tests or have a policy which mandates that some employees get vaccinated while others either provide proof of vaccination or weekly COVID tests.

In other words, you can make distinctions based on how isolated an employee’s job is. If you choose to allow employees to undergo regular testing those employees must agree to wear facemasks in the workplace.

If you choose the ongoing test option, the regulation does not mandate that the employer will cover the cost. It does not, however, preclude state law from mandating employer coverage.

Regardless of what policy you choose to adopt, you must obtain and maintain records on the vaccination status of all your employees. There are specific protocols you should follow for securing this information and this is one of the issues you should be sure to address with your HR attorney.

  • Employees must provide you with documentation of their coverage. In the event that an employee insists they have been vaccinated but cannot provide adequate documentation, there is the option of having them sign an affidavit. However, this is not a loophole. The specific language in the affidavit is specified in the regulation and puts the signer on notice that if they are lying they are violating federal law.

The clock has started to tick.  You now have 30 days to put a policy in place and 60 days to start the mandatory testing if you choose to go that route.  Let the lawsuits begin!  I sure do hope this is the year I get my red wagon.

November 5, 2021 at 9:05 am 1 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

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

Is Your CU Eligible For ECIP?

On Thursday the Treasury unveiled regulations and guidance implementing the Emergency Capital Investment Program (ECIP) which sets aside $9B to invest in Community Development Financial Institutions (CDFI’s) and Minority Depository Institutions (MDI’s) which can use the money to assist communities negatively impacted by the pandemic.  It has created a lot of interest in CU Land because of its extremely attractive terms.  Funds provided to CUs under the program are interest free for the first 24 months. The program however is trickier than it appears, particularly as it relates to secondary capital.

 To be eligible for funding, your credit union must be either a CDFI or a MDI.  This means that even if your credit union has become a Low Income Credit Union (LICU) it does not qualify to participate for these loans.

Congress created the program in the second round of stimulus funding in December. Under Section 104A the program was created   

“…to support the efforts of low- and moderate-income community financial institutions to, among other things, provide loans, grants, and forbearance for small businesses, minority-owned businesses, and consumers, especially in low-income and underserved communities, including persistent poverty counties, that may be disproportionately impacted by the economic effects of the COVID-19 pandemic, by providing direct and indirect capital investments in low- and moderate-income community financial institutions.”

With this charge it is still not entirely clear how the treasury will decide how much $ eligible FIs will be awarded.

Here is where I will get a little into the weeds.  If a credit union does qualify for funding under the program your credit union will still have to be eligible for and be approved by NCUA to have the funds classified as Secondary Capital.  Otherwise it will reduce your net worth ratio.  These funds are not being set aside for financially struggling institutions they are being set aside for financial institutions in financially struggling communities.  

What regulations apply in making a secondary capital classification request?  Good question.  As readers of this blog know NCUA has approved regulations basically replacing secondary capital with subordinated debt.  However, these new regulations don’t become effective until next year.  Credit unions should follow the existing secondary capital regulations, paying special attention to this detailed and, in my ever-so-humble opinion, overly burdensome guidance on secondary capital.

Vaccine Eligibility Expansion

As you may have heard, and judging by the number of emails on the subject, many of you did, the Governor announced yesterday that vaccine eligibility would be expanded to include:

  • Public-facing government and public employees
  • Not-for-profit workers who provide public-facing services to New Yorkers in need
  • Essential in-person public-facing building service workers

At this point we are just dealing with a press release.  The Association has reached out for clarification on precisely which employees are going to be included in this expansion and once we get additional information we will pass it on.   

March 10, 2021 at 9:08 am Leave a comment

Can You Mandate That Your Employees Get the Vaccine?

That was the question a blog reader recently asked me. 

On the one hand, issues of pandemics and mandatory vaccinations are nothing new. As early as 1905, the Supreme Court rejected a challenge to an ordinance passed in Cambridge, MA mandating that all individuals 21 years of age or older get vaccinated in response to a smallpox outbreak. In addition, healthcare professionals and school districts have long had to balance the concerns of their employees and students against medical protocols. That being said, this time is different. We are dealing with a broader scope of “essential” employees, including credit union staff, and people are being asked to trust a vaccine for which there is, rightly or wrongly, a substantial amount of public skepticism. All of these competing crosswinds raise the stakes for any employer who decides to mandate vaccinations. Plus, it also means that legal principles will be applied to novel situations.

On the federal level, Title VII of the Civil Rights Act provides some protections for employees who refuse to get vaccinations on religious grounds. For instance, in Horvath v. City of Leander, a firefighter refused, on religious grounds, to comply with a new city mandate requiring Tdap vaccinations for its employees. He was fired and subsequently sued the Department for religious discrimination under Title VII. His suit was dismissed, but only because he refused the town’s reasonable accommodation, which included either a transfer to a job for which vaccination was not required, or wearing PPE while on the job.

The EEOC has also commented in passing about the applicability of Title VII to vaccination disputes. This decision is consistent with guidance from the EEOC issued in March 2020, in which it noted that once an employer is on notice that an employee’s “sincerely held religious beliefs” prevent them from taking a vaccine, the employer must provide a reasonable accommodation, unless doing so would pose an undue hardship. These protections are broad enough that they leave plenty of room for costly legal disputes. School districts across the state have long had to decide whether students should be exempt from vaccination requirements on the basis of religious beliefs, and I can tell you that most of them rightly do not question an exemption request on these grounds, provided there is a correlation between the beliefs and the exemption request. 

So for those of you considering a vaccination mandate, be prepared to accommodate these concerns. For several months now, many financial institutions have demonstrated that they can accommodate very unique work circumstances. Don’t take a hard line against any employee, even if that employee is simply not comfortable taking the vaccine. In the context of financial services, the benefits of mandating vaccination are outweighed by the burden you would potentially face in implementing this requirement. 

December 9, 2020 at 9:54 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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