Author: Anthony Troia

DOH’s Dear Administrator Letter Offers Relief to Providers Regarding Religious Exemptions

Posted on | by Anthony Troia

The New York Department of Health (“DOH”) has issued a Dear Administrator Letter (“DAL”), stating, “beginning November 22, 2021, all covered entities must ensure that covered ‘personnel’ under the Department’s August 26, 2021 – Prevention of COVID-19 Transmission by Covered Entities Emergency Regulation [the “Vaccine Mandate Regulation”] who were previously granted religious exemptions have documentation of either a first dose COVID-19 vaccination or a valid medical exemption.’

As providers know, since the Second Circuit upheld the Vaccine Mandate Regulation, covered agencies were required to come into compliance and ensure that covered healthcare personnel were vaccinated in accordance with the Vaccine Mandate Regulation. The Second Circuit’s decision, issued on a Friday night, left many providers in a difficult position because they did not have time to remove their caregivers with religious exemptions from field work. Since that time, many efforts have been made to urge the State to issue some sort of relief that would excuse those providers who were unable to come into compliance with the Second Circuit’s decision right away. Today’s DAL arguably provides that relief. While the DOH’s DALs are not binding on OMIG, OMIG will often accept DALs and defer to them in audits. Thus, this DAL should be helpful in the event that OMIG seeks to recover any monies billed and paid for cases worked by unvaccinated caregivers who were working under a religious exemption, at least until November 22, 2021. Providers who have not removed their unvaccinated caregivers from cases should immediately move towards compliance.

This DAL, however, does not provide any relief to covered providers who have been employing caregivers and office staff without a religious or medical exemption since October 7, the date that the Vaccine Mandate Regulation went into effect.

The DOH’s DAL also states that “Facilities should have a process in place to consider reasonable accommodation requests from covered personnel based on sincerely held religious beliefs consistent with applicable Federal and State laws, including Equal Employment Opportunity (EEO) laws such as Title VII of the Civil Rights Act and NYS Human Rights Law, and their applicable guidance.” As we have noted in the past, although the Vaccine Mandate Regulation does not permit the granting of a religious exemption to covered personnel, the DOH cannot preclude the employer from complying with the Title VII and New York Human Rights Law requirements, which require employers to consider provision of reasonable accommodations for sincerely held religious beliefs. While, practically speaking, there is unlikely to be a reasonable accommodation for a caregiver who refuses to vaccinate due to religious reasons, for purposes of complying with federal and State employment laws, providers must ensure that they are at least engaging in the interactive process and considering the provision of reasonable accommodations to every employee who requests one due to religious reasons. The reasonable accommodation process must be followed for all employees, even though the outcome of such process might end up to be the same; termination of employment for refusal to vaccinate. Human Resources departments should work closely with the Directors of Patient Services to ensure that the clinical and employment requirements are being followed in these religious accommodation cases.

If you need any assistance with compliance with the DAL or the vaccine mandate, please do not hesitate to reach out.

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New York Significantly Expands its Whistleblower Law

Posted on | by Anthony Troia

Although New York has had an employment-related whistleblower statute for decades, many employers may not have been aware of it. That is because the statute itself – N.Y. Labor Law Section 740 – has been fairly limited in its scope and application. Indeed, it has only protected employees who disclose employer activity that violates laws relating to public health and safety or to health care fraud. Disclosures of other unlawful activities have not been protected by Section 740.

Starting next year, this is about to change. Gov. Hochul has signed a bill that will amend and expand Section 740. The amended law, which is scheduled to take effect on January 26, 2022, drastically expands the breadth and scope of Section 740 by making it significantly easier for New York workers to bring a claim, lengthening the statute of limitations, and imposing a notice requirement on employers.

The Key Changes to Section 740 are as follows:

  • Independent contractors can bring claims too: As a starting point, under the amended law, not only will current and former employees be able to assert legal claims against the employer, but so will independent contractors.
  • Broad expansion of protected activity: Perhaps the most noteworthy aspect of the amendment is how it expands the types of employee activities that are protected under Section 740 of the Labor Law.

Previously, Section 740 was a narrow statute that primarily barred employers from taking retaliatory action against employees only where the employee had disclosed or threatened to disclose to a supervisor or public body, or had objected to or refused to participate in “an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud.” The prior version of the law thus required that an actual legal violation have occurred – i.e., an employee’s reasonable belief that a violation had occurred was insufficient – and was intended to curb only activities that posed a substantial and specific danger to public health or safety or that constituted health care fraud.

The amended statute, however, broadly expands this scope of protected activity. Specifically, the law now bars employers from taking retaliatory action where the employee discloses or threatens to disclose to a supervisor or public body, or objects to or refuses to participate in “an activity that the employee reasonably believes is in violation of law, rule or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.” The new definition, therefore, essentially protects, and bars employers from retaliating against workers who report any actual, or reasonably perceived by the employee, violation of any law, rule, regulation, executive order, or judicial or administrative decision, ruling, or order at all, regarding of its subject matter.

  • Broadened definition of retaliatory action: Section 740 has always barred employers from taking retaliatory action against employees who engage in activity that is protected by the statute. However, previously, “retaliatory action” was defined to include only the discharge, suspension, or demotion of an employee, or other adverse employment action. Under the revised statute, the definition of “retaliatory action” has been expanded. It now includes any actual or threatened (i) adverse employment actions, (ii) actions that would adversely impact the individual’s current or future employment, or (iii) reporting of the suspected citizenship or immigration status of an employee or their family or household members.
  • Lengthened statute of limitations: To date, Section 740 has provided for a one-year statute of limitations for whistleblower claims. As amended, the statute of limitations for filing a retaliation claim will be increased to two years.
  • Additional forms of relief: Previously, Section 740 provided that a plaintiff-employee could seek injunctive relief, reinstatement to the same or an equivalent position, reinstatement of full fringe benefits and seniority rights, compensation for lost payments and benefits, and attorney’s fees. Under the revised statute, a prevailing plaintiff may now also be entitled to recover front pay, punitive damages, and a civil penalty of up to $10,000. The amended law also makes clear that parties to a Section 740 claim are entitled to a jury trial (though this portion of the law may well be preempted by the Federal Arbitration Act).
  • Notice requirement: The prior iteration of Section 740 contained no notice requirement. The amended statute, however, requires that all Empire State employers post a notice of employee whistleblower protections, rights, and obligations in an easily accessible, well-lighted place that is often frequented by employees and applicants. Note, Section 741 of the N.Y. Labor Law, which pertains to the health care industry, was also amended to include a notice requirement, but otherwise, it remains substantively unchanged.

Recommendations

Employers should immediately train their human resources personnel and supervisors about this new law and update any relevant policies (including but not limited to whistleblower policies, retaliation policies, and complaint procedure policies).  These expanded provisions will create a very easy way for disgruntled employees to sue their employers. Thus, managers and first-line supervisors will need to be trained to better recognize these new “traps.”

Lastly, employers should ensure that a notice of employee whistleblower protections, rights, and obligations is posted by January 26, 2022.

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Employers who Electronically Monitor Employees Must now Notify their Employees of the Monitoring

Posted on | by Anthony Troia

On November 8, 2021, Governor Hochul signed legislation amending the State civil rights law to add a new provision requiring employers who engage in electronic monitoring to notify workers of such. The amendment (A.430/S.2628), which takes effect 180 days after the governor’s signature, applies to any private employer with a place of business in New York that “monitors or otherwise intercepts” any employee’s telephone conversations, emails, or internet access or usage by “any electronic device or system.”

Under the new provision, a private employer who engages in such monitoring of employees must give prior written notice upon hire to all employees who are subject to electronic monitoring. This notice must be in writing or in an electronic record, and must be acknowledged by the employee in writing or electronically.

Employers must also post the notice of electronic monitoring “in a conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring.”

The contents of the notice must advise employees that:

“[A]ny and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.”

The amendment additionally imposes fines on employers violating the new requirement: a maximum of $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.

In addition to providing and posting the notice as required, any private employer with a place of business in New York is advised to add an additional policy to their handbook in response to this new requirement.

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Most NY Employers Soon to be Required to Provide Retirement Savings Plan

Posted on | by Anthony Troia

The New York Secure Choice Savings Program Act (the “program”) was enacted into law as part of the 2018-19 New York State Budget. The program was designed to create a system where employees that work for employers who do not already offer a retirement saving plan could voluntarily opt in to fund an individual retirement account (IRA) through payroll deductions. The program – as originally designed – never really took off because it was voluntary. However, recently, New York amended the program to make it mandatory for covered employers to enroll their employees into the savings program. Here, we describe the program, as amended, and where it stands.

Coverage and Applicability

Initially, the program applies to for-profit and non-profit employers in New York state that meet the following:

  • the employer had at all times during the previous calendar year at least 10 employees in New York,
  • the employer has been in business for at least 2 years, and
  • the employer does not offer a qualified retirement plan such as a 401(k) or 403(b).

All three of these requirements have to be met in order for an employer’s participation in the program to be mandatory.

A “qualified retirement plan” most often comes in the form of a 401(k) or 403(b), but the definition includes other types of retirement plans too.

The legislation contains a provision prohibiting an employer from terminating a employer sponsored retirement plan for purposes of participating in the Secure Choice Savings plan. Thus, employers who already have a qualified retirement plan in place are not required to participate in the State’s program.

What are Covered Employers Required to do?

A participating employer’s duties under the program are intended to be administrative. Participating employers must:

  • set up a payroll deposit retirement savings arrangement,
  • automatically enroll each employee who does not opt out of the program,
  • withhold and remit employee contributions to the program, and
  • disseminate the state’s employee informational materials (which have not yet been published).

This program is designed with the intention of not creating an employer-sponsored retirement plan subject to ERISA. Thus, unlike with a 401(k) plan, for example, participating employers will not have to perform nondiscrimination testing or the like for the plan.

For employees who do not elect a deferral amount, the default election will be 3% of wages. Additionally, the individual retirement accounts created under this program will be Roth which means they will be after tax contributions. Pre-tax contributions are not permitted.

To what Employees does this Apply?

This program covers all employees in the State who are at least 18 years old and who earned wages working for an employer in the State. Interestingly, the program does not distinguish between part-time and full-time employees, so all must be included. Nonetheless, employees can opt-out of participation in the program at any time.

When is this Effective?

This is unclear. The legislation technically became effective immediately, but it calls for enrollment of employees to begin no later than December 31, 2021. The implementing regulations and guidance from the State will need to be issued before the law’s requirements can even take effect.

Additionally, participating employers must set up their payroll deposit arrangements within 9 months of the program opening for enrollment. However, the State may delay implementation of the program by up to 12 months if they determine it is necessary.

Operating and Maintaining the Program

The program is designed to be run by a 7-member New York Secure Choice Savings Program Board (the “Board”). This Board is a fiduciary of the program and they are tasked with designing and operating the program. The implementing legislation provides just a general framework for the Board to work within and leaves the Board to make many important decisions, such as the investment options offered to the participants.

It should be noted that participating employers are not fiduciaries under this program. This means they will face no liability with regard to investment returns, program design, and benefits paid to program participants.

Who is paying for this?

The legislation allows the State to pay administrative costs associated with the creation and management of the program until the program has sufficient assets to cover these costs itself. At that point, costs associated with the program–including any repayment of start-up funds provided by the State–must be paid out of money deposited in the program.

Will this impact the NYC auto-IRA law?

This is unclear, but it seems likely. Earlier this year, New York City (NYC) became just the second city to enact a mandatory auto-IRA law. The NYC legislation, however, provides that if the State enacts a retirement savings program that “requires a substantial portion of employers who would otherwise be covered employers to offer to their employees the opportunity to contribute to accounts through payroll deduction” the NYC program will be discontinued. Thus, there would seem to be pre-emption of the NYC law by the NYS law. However, there is some uncertainty because the NYC program applies to employers with 5 or more employees in NYC while the New York State program applies to employers with 10 or more employees in the State. Despite this difference, there is a possibility that New York City will discontinue its program.

Penalties for Noncompliance

The law does not specify a penalty, however, this might change once implementing regulations or guidance are issued.

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States Sue to Halt CMS Rule Requiring Vaccination

Posted on | by Anthony Troia

On November 10, 2021, 10 states led by Eric S. Schmitt, the attorney general of the State of Missouri, filed a lawsuit in the U.S. District Court for the Eastern District of Missouri seeking a declaratory ruling, as well as preliminary and permanent injunctions enjoining CMS from imposing its November 5 vaccine mandate regulation (the “Mandate”). Alaska, Arkansas, Iowa, Kansas, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming are the other states in the suit. This lawsuit is similar to ones challenging OSHA ETS vaccine mandate for companies with 100 or more employees.

Employers (or third parties indirectly covered by the Mandate) should continue planning for compliance, absent further rulings from the court. For CMS purposes, key compliance dates are December 5 and January 4.

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Fifth Circuit Injunction Against OSHA ETS 100+ is Continued

Posted on | by Anthony Troia

Last night, the OSHA regulation requiring vaccination or weekly testing for all employees of employers with 100 or more employees was blocked again by the Fifth Circuit Court of Appeals in New Orleans, which called the OSHA rules a “mandate” and added that it “grossly exceeds OSHA’s statutory authority.”

The court had previously stayed the order pending a range of legal challenges. The court ordered OSHA to “take no steps to implement or enforce the Mandate until further court order.”

As we have noted on various seminars, the legality of the OSHA ETS likely will not be definitively decided until it is reviewed by the U.S. Supreme Court. The Justice Department, which was contesting the appeals court’s original stay, responded to the ruling in a statement: “Today’s decision is just the beginning of the process for review of this important OSHA standard. The department will continue to vigorously defend the standard and looks forward to obtaining a definitive resolution following consolidation of all of the pending cases for further review.”

We will provide more information on the OSHA ETS as the litigations make their way through the courts. In the meantime, employers who might be covered by the ETS should reach out to counsel and discuss how/if/when to prepare for the potential implementation of this regulation.

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OSHA ETS Faces Legal Challenges

Posted on | by Anthony Troia

Over the weekend, on Saturday, the federal Fifth Circuit Court of Appeals (which covers Texas, Mississippi and Louisiana) issued a temporary injunction, “blocking” the OSHA ETS from taking effect. The Court noted “grave statutory and constitutional issues” with the ETS. While the intent of the plaintiffs who commenced the litigation against the OSHA ETS was certainly to put the ETS on hold nationwide, the Court’s order does not explicitly state that its injunction is being issued on a nationwide basis. Thus, at the moment, the Fifth Circuit’s injunction does not appear applicable to New York.

In addition to the Fifth Circuit, a number of other federal court litigations have been commenced to block the ETS from taking effect. One of the lawsuits was filed by a coalition of 11 attorney generals from largely-Republican states, while other claims were filed by state representatives and private businesses.

We will probably see further rulings in the coming days and weeks from the federal courts, some following in the Fifth Circuit’s footsteps and blocking the ETS, while others may rule that the ETS was lawfully promulgated and should proceed to take effect. With a patchwork of various legal rulings expected, there will ultimately be a unifying judicial order having the final say on this OSHA ETS matter. Whether that ruling comes from the multidistrict litigation panel (an assembly of federal judges that manages certain kinds of national litigation spanning several jurisdictions) or the U.S. Supreme Court remains to be seen.

At the moment, however, the outcome of the OSHA ETS is uncertain. For home care providers, in view of the NY DOH’s strict vaccination mandate that has already been implemented, the OSHA ETS is, practically, only meaningful because of its potential to apply to CDPAP providers who are considered joint employers of the personal assistants. Moreover, once the RFO takes effect and FIs are definitively declared to be joint employers of personal assistants for all employment purposes, the OSHA ETS will certainly apply to CDPAP. For CHHAs and LHCSAs, however, as discussed above, the OSHA ETS has limited applicability.

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OSHA ETS Impact on LHCSAs and CHHAs in New York

Posted on | by Anthony Troia

Last week, when the OSHA ETS was first issued, we provided a high-level overview of the requirements of the ETS. Since that time, we have received a number of questions regarding the impact of the OSHA ETS on LHCSAs and FIs.

OSHA’s ETS will not apply to New York’s healthcare workers, who are already covered by OSHA’s June 2021 ETS. Providers are reminded to review our alerts from this summer, where the earlier ETS’ requirements were discussed in detail.

More importantly, the stricter NY Department of Health regulations mandating vaccination, and which do not provide for a religious exemption or for a weekly testing option, will supersede the OSHA ETS standards. Thus, insofar as New York’s CHHAs and LHCSAs are concerned, the New York Department of Health regulation requiring vaccination continues to control the vaccination obligations of healthcare personnel in New York. The requirements of the OSHA ETS, concerning PPE, training, and recordkeeping, will apply in conjunction with the more employee-protective vaccination mandate that was passed by the Department of Health.

Insofar as the office employees of CHHAs and LHCSAs are concerned, such employees will also be covered by the stricter New York Department of Health regulations mandating vaccination which, again, do not allow for a religious exemption or for a weekly testing option. The recently published OSHA ETS regulations will apply to New York’s CHHAs and LHCSAs (assuming such companies have at least 100 employees) insofar as the recordkeeping requirements, education of employees, and paid time off requirements are concerned.

The vaccination obligations applicable to office employees who work strictly on FI matters will depend on joint employment and corporate structure considerations.

In summary, as between the New York Department of Health vaccination mandate that providers have been complying with since October 7, and the new OSHA ETS standard that was announced and is scheduled to take effect on December 5, 2021, the stricter and more employee-protective provisions of the DOH’s vaccine mandate will “trump” the less employee-protective measures of the OSHA ETS. Otherwise, where the federal OSHA ETS requirements and New York’s regulations can be reconciled and apply in tandem, they will.

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CMS also Mandates Vaccination for Healthcare Employees, but NY FIs and LHCSAs do not appear to be Covered by the CMS Mandate

Posted on | by Anthony Troia

On the same day that OSHA issued its emergency temporary standard (“ETS”) requiring vaccination of employees of companies with 100 or more employees, the Centers for Medicare & Medicaid Services (“CMS”) published its own regulation mandating the vaccination of employees of covered healthcare providers.

Per the CMS regulation, covered facilities must ensure that workers receive either the first dose of a two-dose vaccine or a single-dose vaccine, or otherwise request an exemption from such requirements, by December 5, 2021.  Except for those workers granted an exemption or delay in vaccination per Centers for Disease Control (CDC) recommendation, all staff must be fully vaccinated by January 4, 2022.  There is no option to test weekly and opt out of vaccination under the CMS regulation.

The CMS regulation applies to certified home health agencies, but notably does not apply to home and community-based services. Thus, it appears that the CMS regulation will not apply to New York’s LHCSAs or FIs.

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OSHA Regulation Requiring Vaccination of all Employees of Companies with 100+ Employees is Out. Is CDPAP Covered?

Posted on | by Anthony Troia

This morning, the Occupational Safety and Health Administration (“OSHA”) released its highly anticipated emergency temporary standard (“ETS”) requiring businesses with at least 100 employees to mandate that their employees get vaccinated against the coronavirus or wear a mask and test for COVID-19 on at least a weekly basis. Personal assistants – to the extent they are deemed to be jointly employed by the consumer and the FI – would be covered by this ETS.

We are currently reviewing the 490-page OSHA regulation and analysis, but here are some quick takeaways, as relevant to home care providers in New York:

1.   The ETS applies to companies with 100 or more employees. Part-time and full-time employees “count” for purposes of determining if this threshold is met.

2.   The ETS requires employees to be either fully vaccinated or to receive a weekly COVID-19 test in lieu of vaccination. The ETS defines what constitutes an acceptable COVID test, but notably a self-administered and self-read test is not acceptable unless observed by the employer or an authorized telehealth proctor.

3.   The White House has announced that covered employers are not required to pay for or provide the COVID tests for employees who undergo weekly testing, unless they are otherwise required to by state or local laws or in labor union contracts.

4.   Religious and medical exemptions from the vaccine mandate will be permitted.

5.   Employees who are not fully vaccinated will be required to wear face coverings in work settings (e.g., office, car if traveling with a coworker). Religious and medical exemptions from the face covering requirement are permissible.

6.   Employees who work from home and never come into the office “count” for purposes of determining the 100-employee coverage threshold. However, employees who work remotely full time and are not “exposed to any potentially infections individuals at work” are exempt from the vaccine mandate. Employees who switch back-and-forth between telework and working in a workplace setting will be covered by this ETS.

7.   Previously-infected employees who might have natural immunity to COVID are not exempt from the ETS.

8.   Employers are responsible for determining the vaccination status of their employees. Employees will be considered “fully vaccinated” two weeks after the full required vaccine course is completed.

9.   The ETS is in many respects similar to the DOH’s regulation requiring vaccination of healthcare workers; recordkeeping and proof of vaccination standards are the same.

10. Covered employers must provide paid time off to employees to become vaccinated and in the event that an employee experiences side effects from the vaccine. For New York providers, however, these obligations are already codified in the law and require paid time off to be provided in these circumstances. Thus, this paid time off requirement will not impose any new obligations on employers in New York State.

11. Healthcare employers who are covered by OSHA’s earlier ETS for healthcare employers will not be required to comply with today’s released ETS. However, as we previously noted, because the healthcare employer ETS is likely inapplicable to most LHCSA office settings, today’s new ETS will apply.

12. Any employee who tests positive or is diagnosed with COVID must be immediately removed from the workplace until the employee receives a negative test result, receives a recommendation to return to work from their health care provider, or meets the CDC isolation guidance standards. These requirements would apply regardless of the employee’s vaccination status.

13. The commentary to the ETS states, “For enforcement purposes, traditional joint employer principles would apply.” Thus, to the extent the personal assistants are deemed to be jointly employed by the FI, those personal assistants who are working for FIs with 100 or more employees will be subject to the vaccine or weekly testing requirements.

14. The ETS will take effect 30 days from November 5, 2021, which is December 5. However, the requirement to conduct weekly tests for employees who are not vaccinated will not take effect until January 4, 2022. From December 5 until January 4, unvaccinated employees will be required to wear face masks in workplace settings.

For clients who have any questions or need assistance with preparing to comply with these requirements, please do not hesitate to reach out to us.

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