Year-End NY COVID Updates: NYC Amends Guidance for Private Worker Vaccine Mandate and NYS Releases Proposed HERO Act Regulations

Soon before the ball drops in Times Square for the New Year: (i) the City of New York amended its guidance regarding the mandate that private workers receive the COVID vaccine, as well as confirmed verbally the answers to additional FAQs about the mandate; and (ii) the New York State Department of Labor released proposed regulations to govern Section 2 of the NY HERO Act, which requires employers to permit employees to form workplace safety committees and raise workplace safety and health concerns to employers.

NYC Amendments and Clarifications to Guidance for Private Worker Vaccine Mandate

Seyfarth has learned that, without announcement, NYC amended its FAQs for Covered Entities and its Guidance on Accommodations for Workers, dated December 20, 2021. 

The FAQs now confirm that “Covered entities or individuals who are covered by the OSHA rule that allows either employee vaccination or testing must comply with this [the NYC vaccine] order – their workers must be vaccinated if they do not have a reasonable accommodation.”  In other words, unlike in the OSHA Emergency Temporary Standard (currently slated for Supreme Court review in January), testing cannot be a substitute for vaccination absent a reasonable accommodation.

The most significant amendments to NYC’s Guidance on Accommodations for Workers include:

1. Acknowledging that religious accommodations may not need supporting documentation from a cleric.  
2. Adding that “medical reasons relating to pregnancy” are included in the documented medical reasons for which reasonable accommodation may be granted.
3. Noting that “[i]n some cases it may be appropriate to allow a brief extension of time to be vaccinated for a person who is the victim of domestic violence, sex offenses or stalking.”
4. Reinforcing that requests for vaccine-related accommodations should be addressed in accordance with applicable NYC, NYS, and federal standards by referencing guidance from the New York City Commission on Human Rights and the Equal Employment Opportunity Commission.
5. For medical-accommodation requests, requiring certification from the broader category of a “health care provider” rather than just a “treating physician.”
6. Explaining that the circumstances outlined in the medical accommodation checklist are those deemed “worthy of a medical exemption” by the CDC and New York City Department of Health and Mental Hygiene.
7. In the Accommodation for Religious Reasons checklist, replacing strict language such as “must” and “no accommodation” with broader terms like “should” and “may”.

In addition, during a webinar on December 22, several high-level City officials provided verbal confirmation on the following additional FAQs.

Following December 27, 2021, can individuals be hired with only one dose of a multi-dose vaccine so long as they receive the second dose within 45 days?

Yes.  The same standard applies to new hires after December 27 as applies to current workers through December 27.

Do owners / proprietors decide on their own potential reasonable accommodations?

Yes.  NYC expects owners / proprietors to do so in good faith and document their reasoning.

Does the private worker mandate apply to customers and clients?

No.  While customers and clients who interact with others in-person in NYC may be required to provide proof of vaccination or a reasonable accommodation under other mandates such as the Key to NYC applicable to entertainment, recreation, dining, and fitness establishments, they are not required to do so under the private worker mandate.

Why does it seem like the private worker mandate is built upon the Key to NYC framework?

Because it is.  While attempting to customize the private worker mandate to the circumstances of employees and independent contractors engaging in in-person work in NYC, the City attempted to duplicate as much of the framework of Key to NYC — including complaint and enforcement mechanisms — as possible.  If you were wondering why the requirement in the private worker mandate that the affirmation be posted in a “public place” seems akin to what is expected of entities covered by Key to NYC such as restaurants, this helps explain why.

What are the escalating potential penalties beyond the initial $1,000 and how are they assessed?

Section 3.11 of the NYC Health Code governs penalties.  While this Section would have allowed NYC to set the initial fine anywhere between $200 and $2,000, it is clear from the issued guidance that NYC chose $1,000 as the initial penalty.  The penalty for a subsequent violation would be somewhere between $1,000 and $5,000, with double this amount ($2,000 to $10,000) assessable if “a person fails to appear in a proceeding brought to enforce this Code,” and up to $10,000 assessable “if the violation directly results in serious physical harm to any person.”

Notably, in keeping with the statements in the FAQs about “[o]ur goal is always to educate and work with businesses to help them achieve compliance” and “[i]t’s always our preference to ensure compliance and to avoid fines and penalties,” NYC officials hesitated before citing to the Health Code section, reemphasized a focus on persuasion rather than penalties, and pointed to the general dearth of penalties assessed in relation to the long-in-place Key to NYC requirements.  This said, there have been some publicized instances of NYC making examples of businesses that were open and notorious in their disregard of the Key to NYC requirements.

What are the chances that a legal challenge may stop the mandate?

NYC remains confident that its private worker mandate would withstand any legal challenge.  A NYC official confirmed that NYC, like Seyfarth, is only aware of one very short and unfocused pro se legal challenge to the private worker mandate having been filed to date.  NYC was also heartened by the fact that, on December 13, 2021 the U.S. Supreme Court upheld the NYS vaccine mandate for health care workers even though that mandate, unlike the NYC private worker mandate, does not allow for a religious exemption.

Proposed Regulations for HERO Act Workplace Safety Committees

As previously reported (here, here, and here), Section 2 of the NY HERO Act requires employers to permit employees to form a joint labor-management workplace safety committee with employee- and employer-designees.  This obligation is independent of the requirement in Section 1 for employers to adopt, distribute, and, when applicable, activate various mitigation measures for airborne safety hazards.  The Section 2 obligations took effect on November 1, 2021.

The DOL previously issued guidance that primarily focused on compliance with Section 1.  On December 22, 2021, it finally issued proposed regulations for Section 2.  Below is a summary of the key issues in the proposed regulations:

• Committee Establishment. The proposed rule states that a committee can only be established following the submission of a written request by two non-supervisory employees.  Employers must respond to a request with “reasonable promptness,” though the rule intentionally avoids providing a specific time period.  Finally, the rule provides that separate committees may be established for geographically distinct worksites.
• Committee Composition. The proposed rule sets the minimum number of committee members at three and the maximum number at twelve depending on the size of the relevant worksite.  Irrespective of the committee’s size, the committee must always have at least two non-supervisory employees for every employer representative.  Where a collective bargaining agreement governs a worksite, the union may select the employee members for the committee.  In worksites where there is no CBA, the proposed rule permits employees to select the members of the committee in any way they see fit and prohibits employer involvement in the selection process.  The rule provides examples of committee member selection, such as self-selection for smaller workforces and an election for larger workforces.
• Committee Rules. The proposed rule allows committees to establish their own operating rules, including procedures for the selection of new members, terms of members, and the training of new members. If no procedures or rules are adopted, the committee may take action by a majority vote.  The proposed rule clarifies that committee members are required to be paid for a maximum of four hours of committee training per calendar year, and for up to two hours per quarter for committee meetings.  Members can hold additional committee meetings, but not during work hours.  Finally, the rule makes clear that committee members’ work on workplace safety committee matters, aside from quarterly meetings, may not interfere with the performance of their work responsibilities, and the quarterly committee meetings may not be scheduled at times that unreasonably conflict with the employer’s business operations.
• Employer Obligations. The proposed rule provides that, once a committee is established, the employer must, among other items, (1) provide written notice to all employees at a worksite within five days of establishment of the committee at that site (2) respond in writing “within a reasonable time period” to each safety and health concern raised by the committee or a member, (3) provide written or electronic notice to the committee of any government site visit related to workplace safety and health concern; (4) appoint an employer representative to the committee (who can be a non-supervisory employee, an officer, the employer, or other representative), and (5) not interfere with the committee’s performance of its authorized duties.

The DOL will a hold a public hearing at 11:00 a.m. on February 9, 2022, likely by videoconference, to receive public comments and feedback on its proposed regulations.  After the hearing, the DOL will consider the feedback and issue final regulations that may or may not substantively differ from the proposed regulations.

Although not yet final, these proposed regulations provide much insight into the DOL’s interpretation of Section 2 and a general framework for the ultimate regulations the DOL will implement.  Employers should review these proposals and consider policies and materials to educate managers at each covered worksite to enable them to properly process requests for establishing a workplace safety committee and selection procedures for the committees.

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Seyfarth will continue to monitor developments in this space and provide updates when available.