Archive for year: 2020

As the newly released Covid 19 vaccine makes its way throughout the United States, the question of whether employers could mandate whether an employee must vaccinate has been somewhat answered.  The government, through the Equal Employment Opportunity Commission (“EEOC”), has stated that employers can indeed mandate that employees comply with the request to vaccinate.  The EEOC reasoned that the employer’s entitlement to guarantee a safe workplace comes from the American’s With Disabilities Act (“ADA”), that stipulates that “an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”  [1]

Although the ADA sets limitations on the employer’s ability to compel employees to receive medical exams, the EEOC’s recent declaration has made it clear that such a vaccination does not fall into the category of a medical exam.  This provision basically ensures that a vast majority of employees will be required to comply with the request to vaccinate, because such a request is entirely in keeping with the Employer’s responsibility to ensure a safe and productive work environment.

The mandatory nature of the current process brings to light several potential issues with employees who are unwilling to get themselves vaccinated for a variety of reasons, and their potential remedies through the ADA.  As stated above, a vast majority of employees will be required to comply with a request to vaccinate for Covid-19.  However, there are still some minor exceptions for individuals in particular categories.  An employee with a disability which would prevent vaccination, or a sincerely held religious belief which would prevent vaccination would be exempt from having to comply with the required vaccination.  Under the ADA and Title VII respectively, an employee can request an accommodation for either a disability that would prevent vaccination or an exemption based on their personal religious beliefs.  In instances where an employee falls into one of these two categories, an employer must make a reasonable accommodation for them that will likely take the form of either working from home or unpaid leave.

It is important to note that even with the accommodations in place, an unvaccinated individual who poses a threat to themselves or others can be physically barred from entering the workplace.  It is also apparent that an employee who is required to be physically present at the workplace, and subsequently refuses to take the vaccine and becomes a threat to others can be terminated.  Employers dealing with this current crisis should keep the EEOC guidelines and provisions of the ADA and Title VII in mind when they implement their vaccination protocols, in order to ensure compliance with the law and facilitate a safe and productive work environment.

If you or your H.R. department have any questions concerning the implementation of the Covid-19 vaccination in your workplace or drafting policies concerning same, please do not hesitate to call us at 516-888-1208 or email Cynthia Augello at [email protected]

Thank you to Joel Thomas, JD for his assistance with this post.

[1] U.S. Employment Opportunity Commission, What You Should Know About Covid-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, (2020), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

The Coronavirus pandemic has caused issues for employers around the nation, as hundreds of thousands of employees have been made sick and families have had increased difficulties with schooling and childcare.  Employers have been put into a situation of determining how to allocate sick days and medical leave for their employees who may be affected by Covid 19 while also complying with state and federal law.  Mainly, it is important to note that the federal government has made mandates to expand existing protections for family leave for employees through the introduction of Families First Corona Response Act (“FFCRA”).

The FFCRA requires employers in certain specified categories to provide their employees with paid sick leave or expanded family and medical leave when it is for reasons associated with Covid-19.  Employers who are considered to be “covered” by the FFCRA include certain public and private employers with fewer than 500 employees.

Generally, the FFCRA requires that “covered” employers provide their employees with two weeks of paid sick leave when the employee is in quarantine at the behest of federal, state, local or a healthcare professional’s direction, or if they are experiencing symptoms and seeking a diagnosis.[1]  Additionally, the act requires “covered” employers to provide two weeks of paid sick leave, at two-thirds of the regular rate of pay, in the event that the employee is unable to work because of the genuine need to care for an individual subject to quarantine or a child under the age of 18 whose school or child care provider is closed due to the Covid-19 pandemic.[2]  Notably the FFCRA even requires that employers grant up to an additional 10 weeks of paid expanded family and medical leave to employees who have been employed for a mere 30 days and are unable to work due to the need to care for a child whose school or child care provider is closed for Covid-19 related reasons.

Employers operating in this difficult time should make sure that they are complying with the standards set by the United States Department of Labor for providing family and medical leave.  If you are a private employer who employees less than 500 employees, you are required to comply with the mandate, unless your business meets an exemption created for businesses employing less than 50 employees.  If you fit into this category, you qualify for an exemption to this policy which provides leave to care for children due to school or childcare issues, if your business would risk its viability in implementation.  If you have any questions about the implementation of family and medical leave during Covid-19 please do not hesitate to call us at 516-888-1208 or email Cynthia Augello at [email protected].

Thank you to Joel Thomas, JD for his assistance with this post.

[1] U.S. Department of Labor, Families First Coronavirus Response Act: Employer Paid Leave Requirements, (2020), https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

[2] See Id.

Amongst the many issues amplified by the plight of a global pandemic, Covid-19 has brought with it questions and concerns regarding the investigation of incidents in violation of Title IX.  Title IX refers to federal law that prohibits sex-based discrimination in schools and grants protections for students from harassment and sex-based violence.

When the pandemic initially occurred, universities and the different parties involved in a Title IX investigation were left unsure of how investigations would proceed, and whether significant delays would occur in the process.

Most universities have transformed the investigatory process in their Title IX offices by allowing the entire process from reporting a claim, to hearings and investigations to proceed via virtual communication.  Many colleges and universities have also begun virtual support services.  Pausing Title IX investigations should not be considered a preferred solution during the pandemic, as some students in institutions have reported feeling abandoned by the process and left without a means of recovering from the harm that they suffered.

Some attorneys representing students being accused of a Title IX violation have raised the issue  that moving forward with purely virtual hearings may place the accused at a disadvantage, because of factors like the inability for investigators conducting the hearing virtually to accurately see facial expressions and nonverbal cues, which are typically utilized in accessing the guilt of accused students.

In some cases, accused students have argued in court to delay proceedings over the process being tarnished or corrupted by the use of technology.  Notably there have been two instances during the pandemic where federal courts declined to intervene on behalf of accused students and restrain or stop a proceeding from continuing via virtual communications.  In both Doe v. Oberlin College and Doe v. Transylvania University, courts declined to stop universities from continuing Title IX investigations based on the argument that all parties could not physically attend the proceeding. [1]  The argument that the hearing process was being corrupted by virtue of the fact that the parties could not physically gather in the same room was not found to be credible because the virtual hearing process was a live hearing where parties could still question and cross examine witnesses.  The process was also found to be secure as the footage of the hearing was recorded and maintained in a secure manner that would keep the footage from being improperly distributed to outside parties.

An additional issue that has arisen concerning the adjudication of Title IX investigations during the pandemic has been the implementation of new rules concerning the process.  The current Secretary of Education recently introduced new rules regarding the investigation procedure and the process that is to be afforded to all parties.  The mandatory implementation of the new rules by August 20^th of this year also created additional challenges.  The new rules include provisions for live hearings including the cross-examination of witnesses by representatives of the accused, and an increased standard of evidence needed to sustain a finding of sexual misconduct.

Suggestions for Colleges and Universities

Despite the difficulties that Universities may have with implementing the changes in the law and the overall continuation of investigations by their respective Title IX office, institutions of higher learning should strive to ensure that the process can continue to occur despite the difficulty of the pandemic.  Official guidelines published by the United States Department of Education Office for Civil Rights specifically state that schools are not permitted to deliberately delay proceedings by instating a blanket policy of pausing all investigations during this Covid-19 era.

Universities are still required to make a good faith effort to respond effectively to reports of discriminatory harassment and to conduct fair and impartial investigations of student and employee complaints in a reasonably timely manner, while also taking into the consideration the health and safety of students and staff.[2]  Institutions of higher learning have been advised to use technology to conduct the various activities associated with an investigation via virtual communication while still conducting the investigation in a timely manner and in compliance with due process protections. Institutions should take the confidentiality and privacy issues associated with virtual communication into account when using virtual communication platforms.  Institutions are required to notify students and staff of changes in the means of communication with the Title IX coordinator and make provisions for the virtual reporting of harassment claims.

Schools should provide the avenues for the entire process to flow safely and efficiently via virtual communication platforms and ensure that all parties have access to the virtual platforms to make certain that everyone can properly hear and communicate with one another.  It is important to note that in instances where parties do not wish to make visual contact in any way, parties are permitted to request different rooms for virtual cross-examination so as to not come into any contact with one another.  This ensures that victims are not further traumatized by the events of a hearing while also ensuring that the proceeding can still take place with all involved parties.  Guaranteeing the safety and integrity of the virtual conference by making sure the virtual feed is secure from outside interference is also key.  As courts have already determined that video conferencing with full access by both parties already amounts to affording due process to both parties, schools should not hesitate to fully implement virtual hearings and investigations and allow for virtual reporting of any purported violations of Title IX law.

If you, or your institution, have any questions concerning Title IX Investigations during Covid-19, please do not hesitate to call us at 516-888-1208 or email Cynthia Augello at [email protected].

Thank you to Joel Thomas, JD for his assistance with this post. 

[1] Doe v. Oberlin College, No. 19-3342 (6th Cir. June 29, 2020); Doe v. Transylvania Univ., No. CV 5:20-145-DCR, 2020 WL 1860696 (E.D. Ky. Apr. 13, 2020).

[2] OCR Technical Assistance Document: Questions and Answers for Postsecondary Institutions Regarding the Covid-19 National Emergency

Starting tomorrow, New York’s new paid sick leave law (“New York Sick Leave Law” or “NYSLL”) goes into effect, although employees are not entitled to use it until January 1, 2021.   There are several key points employers and employees should be aware of[1].  Specifically:

• The amount of NYSLL employees will be entitled to use will vary based on employer size and income as follows:

EMPLOYER SIZE	HOURS OF SICK LEAVE THAT MUST BE PROVIDED	NET INCOME REQUIREMENT
100 or more	56 hours of paid sick leave	None
5-99	40 hours of paid sick leave	None
4 or less	40 hours of paid sick leave	Over $1,000,000.00 in the previous tax year
4 or less	40 hours of unpaid sick leave	Less than $1,000,000.00 in the previous tax year

• NYSLL Accrual:

NYSLL will accrue at a rate of 1 hour for every 30 hours worked unless an employer elects to frontload all sick time at the beginning of the year.  Moreover, employers may set a reasonable minimum increment for us, which cannot exceed 4 hours.  Even though employees are unable to use NYSSL until January 1, 2021, the law goes into effect September 30, 2020. This means that employers selecting an accrual method must be prepared to start tracking accrual, provide information upon request regarding accrual, and be prepared to carry over accrued time for employee use starting January 1, 2021.

It is also important for employers to review their employee handbook(s) to ensure that there is a clear policy concerning pay-out policies on unused sick time upon an employee’s separation from employment.  NYSLL does not require employers to pay out unused sick time when an employee separates from employment. Unused sick leave must be carried over to the following year.  Moreover, if an employee requests that the employer provide a summary of the amount of sick leave accrued/used by the employee, the employer must provide such information within three days of the request.  The request can be made either in written form or verbally.

• NYSSL can be used for:

1. Employee’s physical or mental illness, injury, or diagnosis, care, treatment, or preventive care of same;
2. Covered Family Member’s[2] mental or physical illness or injury or diagnosis, care, treatment, or preventive care for said covered Family Member’s mental or physical illness or injury;
3. Absences related to employee’s status as a victim of domestic violence, family offense, sexual offense, stalking, or human trafficking; or
4. Absences related to a covered Family Member’s status as a victim of domestic violence, family offense, sexual offense, stalking, or human trafficking.

Employers must ensure that they are not requiring employees to disclose any confidential information in verifying the need for NYSLL.  Additionally, employees have a right to reinstatement and protections against retaliation for exercising rights under the NYSLL.

Although the NYSLL is separate from the already existing New York State Quarantine Leave Law which went into effect on March 18, 2020, it remains to be seen how these two laws will interact in 2021.

If you, or your organization, have any questions concerning the NYSLL or any other laws addressed in this post, do not hesitate to call Cynthia Augello at 516-888-1208 or email [email protected].

[1] It is important to note that New York City and Westchester County already have their own sick leave laws.  It is unclear, at this time, how NYSLL will interact with the existing requirements in NYC and Westchester County.  Moreover, Westchester County also has a separate Safe Leave Law.

[2] The term “Family Member” is broadly defined under the NYSLL to include: (1) an employee’s child (biological, adopted, foster child, a legal ward, or a child of an employee standing in loco parentis); (2) spouse, domestic partner, parent (biological, foster, step, adoptive, legal guardian, or person who stood in loco parentis when the employee was a minor child); (3) sibling; (4) grandchild; (5) grandparent; and (6) the child or parent of an employee’s spouse or domestic partner.

Q. Is an employer required to inform its employees if an employee contracts COVID-19? If so, will the employer be in violation of any medical privacy laws?

A. An employer can appropriately disclose that someone in the workplace has been exposed to Coronavirus, but should avoid disclosing the identity of that employee to meet their obligations under laws like the Americans with Disabilities Act (ADA).

Q.  Can an employer perform medical tests on its employees to determine if said employee has the virus?

A.  Generally, the ADA prohibits mandatory medical examinations of current employees, including taking their temperatures, unless the employer can show this is necessary to respond to a “direct threat.” The EEOC (Equal Employment Opportunity Commission) issued guidelines in 2009 about pandemic preparedness, in which the EEOC cautioned employers that even a pandemic does not necessarily justify medical examinations. However, the CDC (Centers for Disease Control and Prevention) now recommends that employers in certain geographical areas start checking employees’ temperatures, employers in those places likely now would be able to justify it.  This is, however, a fact-intensive inquiry.

Q.  Can an employer send an employee who “appears sick” home? UPDATED MARCH 23, 2020

A.  According to the EEOC guidance, if the employee’s symptoms are not worse than those of the seasonal flu, the employee is not “disabled” under the ADA, so the ADA would not apply. Alternatively, if the employee has very serious symptoms, the employer may be able to send the employee home and not violate the ADA under the exception for employees who pose a “direct threat.”  Here, the symptoms of Coronavirus largely mimic those of the flu and many states and cities have laws that are more narrowly tailored concerning “disabilities” which must be considered. The EEOC has made it clear that advising workers to go home is acceptable and not considered disability-related.

Q.  If an employee gets the virus, must an employer hold the employee’s job?

A.  On March 17, 2020, Governor Andrew M. Cuomo announced a three-way agreement with the Legislature on a bill guaranteeing job protection and pay for New Yorkers who have been quarantined as a result of novel coronavirus, or COVID-19. The bill also includes the permanent comprehensive paid sick leave policy first advanced in the Governor’s FY 2021 Executive Budget proposal.

This follows the Governor Cuomo’s announcement last week that the state will guarantee two full weeks of paid leave for all state workers who are subject to a mandatory or precautionary order of quarantine as a result of the novel coronavirus.

Q.    Are there any resources employers can access to obtain information and updated guidance?

A.     Yes.  Below are some helpful links for employers and employees.  Also, if you have any questions or need any guidance, please call Cynthia Augello at 631-693-6399 or email her at [email protected]

Guidance from OSHA Guidance can be found here:  https://www.osha.gov/Publications/OSHA3990.pdf.

Guidance from the DOL concerning the FMLA and ADA can be found here:  https://www.dol.gov/agencies/whd/fmla/pandemic.

The NYS Interim Guidance can be found here:  https://ocfs.ny.gov/main/news/2020/COVID-2020Mar11-Interim-Guidance-Employee-Risk-Factors.pdf.

The NYC Guidance can be found here:  https://www1.nyc.gov/assets/doh/downloads/pdf/imm/novel-coronavirus-faq-for-businesses.pdf.

.Q. Can an employer require an employee to use his/her vacation time/other paid time off for a COVID-19 related absence? UPDATED MARCH 23, 2020

A. Yes, subject to (a) the provisions of the employer’s current vacation time, paid time off, and other applicable policies, and (b) any state laws (e.g., implied contract of employment) restricting an employer’s ability to interpret or amend those policies. Employers with fewer than 500 employees should review obligations under the “Families First Coronavirus Response Act”

Q. Under what circumstances is an employee entitled to the enhanced FMLA? ADDED MARCH 23, 2020

A. Covered employers must provide 12 weeks of leave for “the employee [who] is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”

“Public health emergency” means an emergency related to COVID-19.  “School” includes elementary or secondary schools as defined in the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801).  “Child care provider” means a provider who provides child care serves on a regular basis for compensation.

No change has been made to the definitions of “health care provider” and “son or daughter.”  They have the same meanings under the FMLA.

Q:  What are employers required to pay an employee on leave under the emergency paid family and medical leave act? ADDED MARCH 23, 2020

The first 10 days of leave are unpaid.  Employers may allow employees to substitute any other paid leave for accrued vacation, personal, medical or sick leave.  Employers cannot mandate that employees substitute paid leave.

The next 10 weeks of leave are to be paid.  Employees are entitled to be paid not less than 2/3 of their regular rate of pay for the number of hours the employee would otherwise normally be scheduled to work.  “Regular rate of pay” is determined under section 7(e) of the FLSA (29 U.S.C. 207(e)).

Variable hour employees are entitled to the average number of hours worked over the past six- month period.  Employees working for less than a six-month period, the employer shall use the “reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.”

The paid leave described above is capped at $200 per day and capped at a total of $10,000.

Q:  What does the emergency paid sick leave act (“EPSLA”) require? ADDED MARCH 23, 2020

A:  Full time employees are entitled to up to 80 hours of paid sick leave.  Part time employees are entitled to be paid for the number of hours the employee works, on average, over a 2-week period.  For part time employees with variable hours, employer shall average the number of hours worked over the past six- month period.  Employees working for less than a six-month period, the employer shall use the “reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.”

Q:  What do employers have to pay employees taking leave under EPSLA? ADDED MARCH 23, 2020

A:  Employers must pay employees their regular rate of pay, or minimum wage, whichever is greater, for leave taken for reasons 1-3.  Employers must pay employees at 2/3 their regular rate of pay, or minimum wage, whichever is greater, for leave taken for reasons 4-6.  Employers must pay part time employees for the number of hours they would normally work during a two-week period.

Paid sick leave it capped at $511 per day or a total of $5,110 if they take leave for the following reasons:

1. Employee subject to fed, state, local quarantine or isolation order related to COVID-19;
2. Employee has been advised by health provider to self-quarantine due to concerns related to COVID-19; or
3. Employee experiencing symptoms of COVID-19 and seeking medical diagnosis.

and $200 per day or a total of $2,000 if the employee takes leave for the following reasons:

1. Employee caring for a person who is subject to fed, state, local quarantine or isolation order related to covid-19 or has been advised by health provider to self-quarantine due to concerns related to COVID-19
2. Employee caring for son or daughter of employee if school or place of care has been closed, or child care provider of son or daughter is unavailable due to COVID-19 precautions
3. Employee experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with Secretary of Treasury and Secretary of Labor.

Q:  Are the employers entitled to tax credits under the new paid leave laws? ADDED MARCH 23, 2020

A:  There will be a credit against the tax imposed each calendar quarter in an amount equal to 100 percent of the qualified sick leave wages and 100 percent of the qualified family leave wages paid by the employer with respect to that calendar quarter.

The Secretary of the Treasury shall prescribe regulation and other guidance as may be necessary to carry out the acts.

Q:  Are there any exceptions under these new paid leave laws? ADDED MARCH 23, 2020

A:  The Secretary of Labor has the authority to issue regulation that may provide some exceptions for small businesses with fewer than 50 employees “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”  No such regulations are in place at this time.