New York State Department of Labor Adopts Sick Leave Law Regulations

On December 22, 2021, the New York State Department of Labor (DOL) issued final regulations (“Regulations”) regarding the New York State Sick Leave Law (“NYSSLL”), which took effect over a year ago on September 30, 2020.  The Regulations do not contain any changes to those initially proposed on December 9, 2020.  In adopting the Regulations, the DOL also provided insight on its interpretation of the NYSSLL by responding to public comments it received about the law, which in some cases is contrary to its previous guidance. 

Documentation

The Regulations allow an employer to request that an employee provide documentation substantiating sick leave where the employee uses leave for three or more consecutive and previously scheduled workdays or shifts.  Employers may require either: 

(1) An attestation from a licensed medical provider supporting the need for leave which identifies the amount of leave needed and a date the employee may return to work; or

(2) An attestation from the employee of their eligibility for leave. 

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New York State Department of Labor Issues Proposed Workplace Safety Committee Rule

On December 22, 2021, the New York State Department of Labor (DOL) issued a proposed rule regarding the workplace safety committees required by the New York Health and Essential Rights Act (NY HERO Act).  There is no scheduled effective date for the proposed rule and, before taking effect, it will be subject to public comment.  The DOL has scheduled a public hearing for February 9, 2022.  Employers should become familiar with the proposed rule as it is likely that the final rule will be substantially similar.

NY HERO Act

The NY HERO Act consists of two required components:

1. All private employers must adopt an airborne infectious disease prevention plan; and

     2. All private employers with at least 10 employees must allow their employees to form workplace safety committees. 

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U.S. Supreme Court Blocks OSHA’s COVID-19 Vaccinate-or-Test Rule

On January 13, 2022, the United States Supreme Court issued a stay of the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to require that their employees be vaccinated against COVID-19 or submit to weekly testing.  In issuing the stay, the Supreme Court only ruled on whether the ETS should be stayed to prevent irreparable harm while challenges to it continue to be litigated in the United States Court of Appeals for the Sixth Circuit.  Presently, as a result of the Supreme Court’s order, employers with 100 or more employees are not required to comply with the ETS. 

In its decision, the Supreme Court left open the door that OSHA might be able to issue more limited measures to combat COVID-19 in the workplace.  Although employers at this time do not have to comply with the ETS, employers remain subject to state and local COVID-19 mandates and safety rules.  Employers also remain free to adopt mandatory vaccination and testing policies, subject to any state restrictions.  

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New York State Employers Freed From Mask Mandate

On February 10, 2022, New York State Governor Kathy Hochul lifted the statewide indoor mask-or-vaccine mandate that had been in effect since December 13, 2021. This mandate required that all persons entering a business’s premises wear a mask, unless all persons were vaccinated against COVID-19.  As a result of this new action, most businesses no longer have to ensure that all of their employees and patrons are masked to enter their premises if any are unvaccinated.  However, masks must continue to be worn in hospitals, nursing homes, adult care facilities, correctional and detention facilities, homeless and domestic violence shelters, schools and on public transportation.  In making her announcement, the Governor noted that counties, cities and businesses will be able to opt into the mask-or-vaccine requirement if they so choose.   

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New York State Department of Labor Issues Whistleblower Law Notice

We recently reported in “New York State Expands Workplace Whistleblower Protections” that Section 740 of the New York Labor Law was amended effective January 26, 2022, to significantly expand protections for workplace whistleblowers outside of health care.  Before the amendment, such whistleblowers were protected only if they disclosed activity that actually violated a law, rule or regulation and which presented a substantial and specific danger to the public health or safety.  The amendment expands the law’s protections by, among other things, now protecting employees who disclose an activity, policy or practice that they only reasonably believe violates a law, rule or regulation or that they reasonably believe poses a substantial and specific danger to the public health or safety.  This reasonable belief standard now aligns with that for health care employees. 

The amendment also requires that employers inform employees of their protections, rights and obligations under the law by posting a notice “conspicuously in easily accessible and well-lighted places customarily frequented by employees and applicants for employment.”  The New York State Department of Labor (DOL) has issued a  “Notice of Employee Rights, Protections, and Obligations Under Labor Law Section 740” (PDF) that employers can use to meet the posting requirement.

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