Amy H. Sachs, Jill Turner Lever, Patricia M. Prezioso
Employment and Labor
September 10, 2021
Coming Soon: Federal
Mandate for Vaccine or Weekly Testing
September 9, 2021, President Biden announced that he would be directing the
Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to
issue an emergency rule requiring healthcare workers, federal workers and
contractors, and companies with 100 or more employees to ensure that workforces
are fully vaccinated or, alternatively, test negative for COVID-19 at least
once a week. The emergency rule will also require employers to provide paid
time off for employees getting vaccinated. According to White House officials,
failure to comply with this forthcoming emergency rule may result in government
enforcement actions which could include fines up to $14,000 per violation. The
new rule, which will be published as an emergency temporary standard, is
anticipated to be published in the next several weeks and to go into effect
For further details about the above, and President’s Biden’s six-pronged
approach to combat the pandemic, please refer to President Biden’s remarks here and here. There is expected to be opposition to this measure and we will continue
to monitor this important development.
Update to New York
HERO ACT – Activation Now Required
we have previously reported, on May 5, 2021, Governor Cuomo signed the New York
Health and Essential Rights Act (“NY HERO Act”), and subsequent amendments on
June 7, 2021. As set forth in our prior alert, the NY HERO Act mandates extensive
workplace health and safety protections against exposure and disease during an airborne
infectious disease outbreak (“AID”).
On July 6, 2021, the New York State
Department of Labor (“NY DOL”) issued the Airborne Infectious Disease Exposure
Prevention Standard (“Exposure Prevention Standard”) and the Model Airborne
Infectious Disease Exposure Prevention Plan (the “Model Plan”). By August 4, 2021, all New York employers
were required to either adopt the Model Plan or create their own Airborne
Infectious Disease Exposure Prevention Plan (“Exposure Prevention Plan”). The
adopted or crafted plans were required to be distributed to all employees by
September 4, 2021.
the requirements for employers under NY HERO Act were limited to creating and
distributing the plans because New York State had not officially designated any
AIDs. That status changed on September 6, 2021, when Governor Kathy Hochul
announced that the New York Commissioner of Health officially designated COVID-19
as an AID under the NY HERO Act, stating that COVID-19 presents a serious risk
of harm to the public health. Accordingly, the adopted Model Plans or alternative
Exposure Prevention Plans must now promptly be activated and go into effect.
A compliant Exposure Prevention
Plan will meet or exceed the requirements of the Model Plan and be crafted in
accordance with a collective bargaining agreement or with meaningful participation
from employees. As set forth in more detail in our prior alert, every plan must
include appropriate exposure controls for activities performed at worksites
including health screenings, requiring face coverings, implementing physical
distancing, cleaning and disinfecting worksites, and providing hand hygiene and
personal protective equipment.
In accordance with the NY HERO Act, now that New York State
has designated COVID-19 as an AID, all employers in New York State should
immediately review and update their prevention plan, activate the plan, provide
each employee with a written copy of the plan in English or the primary
language of the employees, and post a copy of the plan in a visible and prominent
location. Additionally, employers must conduct a “verbal review” of the
employer’s policies and employee rights under the NY HERO Act, including the
employer’s Exposure Prevention Plan.
Failure to comply with the NY HERO
Act may result in civil penalties of $50 per day for failing to adopt an appropriate
plan and a fine of $1,000-10,000 for failing to comply with an adopted plan.
Employees may also bring a civil action seeking injunctive relief against
employers alleged to have violated an adopted prevention plan.
The attorneys in our Employment and
Labor Practice will continue to monitor the evolving circumstances, including
the pending federal mandate, and are available to assist on any aspect of the
NY HERO Act, including the creation and implementation of compliant Exposure
This Client Alert has been prepared by Sills Cummis & Gross P.C. for informational purposes only and does not constitute advertising or solicitation and should not be used or taken as legal advice. Those seeking legal advice should contact a member of the Firm or legal counsel licensed in their state. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. Confidential information should not be sent to Sills Cummis & Gross without first communicating directly with a member of the Firm about establishing an attorney-client relationship.