Tri-State Announcements & Updates
September 6, 2021 Update:
Governor Kathy Hochul Announces Designation of COVID-19 as an Airborne Infectious Disease
Governor Kathy Hochul announced that the health commissioner has designated COVID-19 a highly contagious infectious disease that poses a serious risk of harm to public health.
What Does This Mean for Employers?
- Employers are now required to implement their previously prepared Prevention Plan.
- The plans adopted must address the safety measures outlined in the Model Prevention Standard on the DOL Website resources, including but not limited to:
- Employee health screenings
- Social distancing
- Workplace hygiene stations
- Workplace cleaning protocol
- Quarantine protocol
- Building airflow technology
- Employers should have distributed the work safety plan AND posted the plan in a prominent location at each worksite.
- The NYS HERO Act includes anti-retaliation protections.
- All employers, regardless of size, are now required to implement their workplace safety plan to help protect workers from COVID-19.
Click here to view the reference sheet distributed to our clients in July.
June 17, 2021 Update:
New York State Lifts Mandatory Industry Specific COVID-19 Guidelines Upon Reaching 70% Adult Vaccination Goal
According to the State’s June 15, 2021 press release, the health guidance and New York Forward industry specific guidelines, enacted at the beginning of the COVID-19 pandemic, and updated frequently throughout, are no longer controlling, effective immediately. The preexisting guidance on “social gathering limits, capacity restrictions, social distancing, cleaning and disinfection, health screening, and contact information for tracing” is no longer mandatory in most commercial settings, with one key exception. The lifting of restrictions applies to most sectors, including retail, real estate, offices, food services, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and personal care services.
One key rule remains in place, however. Masks are still required for those who are unvaccinated, as New York is still following CDC recommendations.
The State’s health guidelines also remain in place for large-scale indoor event venues, pre-K to grade 12 schools, public transit, homeless shelters, correctional facilities, nursing homes, and health care settings per CDC guidelines. “Large scale indoor event venues” are those indoor venues that can hold more than 5,000 attendees. Even those locations will enjoy some relief, however, as masking and social distancing requirements can be eliminated for fully vaccinated workers and visitors. Further, those who have tested negative in a recent COVID-19 test need not adhere to masking and social distancing guidelines, allowing large indoor venues to open at 100% capacity if all attendees are either fully vaccinated or provide proof of a negative test.
Counties, cities, and businesses may still choose to implement their own restrictions or continue to apply some or all of the industry-specific guidelines. The State made clear that businesses are authorized to require social distancing and masking if they choose, regardless of vaccination status, as long as any mask requirements remain in compliance with any applicable state and federal laws, such as the Americans with Disabilities Act.
Separately, although the NY Forward Safety Plan is no longer required, employers should consider the HERO Act’s impending requirement for safety protocols, as discussed here, and incorporate the DOL’s model plan or a compliant plan in accordance with the Act.
July 7, 2021 Update:
New York State Passes Significant Amendments to the HERO Act
On June 7, 2021, the New York State legislature amended certain provisions of the HERO Act which, as we previously reported, requires all employers in New York to adopt a prevention plan to protect against further spread of COVID-19 and other airborne infectious diseases in the workplace. A detailed summary of the amendments is below.
On the evening of July 6, 2021, the NYS Department of Labor (DOL) published the long awaited “Airborne Infectious Disease Exposure Prevention Standard” (Standard), a general “Model Airborne Infectious Disease Exposure Prevention Plan,” and several industry specific model prevention plans as well. These are now available on the DOL’s website. The model plans are currently available in English, but the website states that they will also be available in Spanish soon, as required by statute.
Private employers in New York State now have 30 days, or until Aug. 5, 2021, to either adopt one of the model plans or develop an alternative plan that meets or exceeds the requirements in the Standard. Employers that choose to develop an alternative plan must adopt a plan pursuant to an agreement with the collective bargaining representative (if any), or where there is no collective bargaining representative, with meaningful participation of employees, for all aspects of the plan. The alternative plan must be tailored and specific to the hazards in the specific industry and worksites of the employer.
Notably, although employers are required to adopt a compliant airborne infectious disease exposure prevention plan, such plans only go into effect when the New York State Commissioner of Health designates an airborne infectious disease as a “highly contagious communicable disease that presents a serious risk of harm to the public.” The DOL’s website currently provides that as of the current date, no such designation has been made, and therefore the airborne infectious disease prevention plans are not currently required to be in effect.
Employers should carefully review the Standard and the applicable model prevention plan(s) and determine whether to adopt one of the model plans or develop and adopt a compliant alternative prevention plan.
June 8, 2021 Update:
New York State Updates COVID-19 Office Rules as Vaccination Numbers Continue to Rise
On June 8, 2021, the New York State Department of Health released updated interim guidance for office-based workplaces that removes significant prior restrictions. This new guidance comes on the heels of Governor Andrew Cuomo’s recent announcement that once 70% of adult New Yorkers have received at least the first dose of the COVID-19 vaccine, almost all applicable guidance will become optional, except that unvaccinated individuals still need to wear face coverings and maintain social distancing. According to Governor Cuomo, New York is expected to hit the 70% threshold during the week of June 14, if not earlier.
The updated Interim Guidance for Office-Based Work During the COVID-19 Public Health Emergency (Office Guidelines) represents the most substantive overhaul of New York’s guidance to office-based workplaces since it was first implemented last year, including updates to prior guidance on physical distancing, face coverings, workplace activity, reopening processes, and screening/testing. The most significant changes are outlined below.
Screening and Testing
June 9, 2021 Update:
New York Updates COVID-19 Guidance Including Daily Health Screening Requirements
On June 8, 2021, New York State updated the NY Forward Guidance for several industries, including office-based and food services employers, with changes that many people feel are overdue.
In addition to incorporating updated mask, physical distancing, and capacity rules that have been in place since New York adopted the Centers for Disease Control and Prevention (CDC) guidance for fully vaccinated individuals on May 19, 2021, the most significant modification to the NY Forward Guidance update is the change in screening questions. The guidance no longer requires employers to ask about symptoms, close contact, or COVID-19 infections that occurred in the last 14 days. Instead, the new daily health screening questions properly reflect the most current CDC and New York State Department of Health isolation and quarantine guidelines for COVID-19.
The following three screening questions are required:
- Are you currently experiencing, or recently experienced (in the last 48 hours), any new or worsening COVID-19 symptoms?
- Have you had close contact (being within six feet for at least 10 minutes over a 24-hour period) or proximate contact (as determined by health authorities) in the past 10 days with any person confirmed by diagnostic test, or suspected based on symptoms, to have COVID-19?
- Have you tested positive through a diagnostic test for COVID-19 in the past 10 days?
Prior to June 8, the time period for all three questions was 14 days, which was premised on outdated COVID-19 public health authority guidance. In addition, if an employee had a preexisting condition that mirrored COVID-19 symptoms, such as migraines, they were required to answer the symptom screening question in the affirmative. The updated guidance permits employees to account for preexisting conditions.
Finally, the updated NY Forward Guidance now expressly provides an exemption from answering the close-contact question in the affirmative for employees who are either fully vaccinated or who have recently (in the last three months) fully recovered from COVID-19.
The updated guidance is a reminder to employers that the NY Forward Guidance is still applicable for businesses seeking to operate in person.
May 18, 2021 Update:
Governor Cuomo’s “Rollback” Announcement
This announcement included a number of seemingly positive moves for the state, namely with respect to social distancing and capacity limits. New York’s developments can be found at this link – NY Reopening Reference Guide. Specifically: New York’s developments can be found at this link – NY Reopening Reference Guide.
New York’s Developments
Finally, employers in New York are reminded that all of this will need to be blended with an evaluation of the NY Hero Act, see our recent Seyfarth NY Hero Update.
May 17, 2021 Update:
New York is Adopting the CDC’s Lifting of Mask Mandates
As of this Monday, 5/17 Governor Cuomo announced that New York will be adopting the Centers for Disease Control and Prevention’s (CDC’s) lifting of mask and social distancing mandates for the fully vaccinated public. This means that among other things, as of Wednesday, 5/19 fully vaccinated people may forgo face masks and social distancing in most places, regardless of being inside or out, or of the crowd size itself. Face coverings will still be required for all on public transportation and in health care facilities. For those who are immunocompromised or not yet vaccinated masks and social distancing, mandates must still remain in place and followed as circumstances dictate.
While this may offer those who have fully vaccinated some much anticipated good news, it is important to keep in mind that from an employment perspective PrestigePEO still suggests folks headed back into a physical office, and who may be sharing common work areas with the unvaccinated, proceed with caution. While allowable for vaccinated employees to take off their masks, it may not be prudent while working in close quarters with others who either cannot forgo their masks or perhaps do not feel comfortable in doing so. It is important to keep in mind too, that exercising the right to forgo a mask while another co-worker cannot within a certain work location it may raise conflict or discrimination concerns for some. In order to avoid possible employment issues like these, clients are encouraged to speak with their HRBP for guidance prior to creating policy or setting precedent in the office regarding whether or not they should, or want to, allow similar rules at their location.
April 21, 2021 Update:
New York State Enacts Worker Safety Legislation and Considers Other Employee-Friendly Bills
The New York State Legislature is keeping busy with new employment legislation as the local and national economies continue to recover from the COVID-19 pandemic.
On April 21, 2021, both houses of the Legislature announced passage of portions of the NY Hero Act, which requires extensive new workplace health and safety protections in response to the pandemic. The Legislature is also advancing two additional employment-related bills: one would ban “no-rehire” clauses in employment settlement agreements, and the other would prohibit “no-poach” agreements between franchisors and franchisees.
NY Hero Act
Prohibition of No-Rehire Clauses
Next Steps for Employers
In the short-term, employers should begin working with counsel to develop compliant policies and procedures under the NY Hero Act, which is expected to be signed shortly. Employers should also consider how the prohibitions on no-rehire clauses and no-poach agreement might impact their operations.
April 21, 2021 Update:
The New York State Department of Health updated its COVID-19 Travel Advisory (the “Advisory”) for domestic and international travel on April 10, 2021. The state has now altered its recommendations based on vaccination status and the advisory relaxes restrictions on international travel as well.
The definitions of “domestic travel,” “fully vaccinated,” and “recently recovered” in relation to the travel guidance are as follows:
- “Domestic travel” is defined as travel lasting for twenty-four (24) hours or longer to states or U.S. territories other than contiguous states (i.e., New Jersey, Pennsylvania, Connecticut, Massachusetts, and Vermont).
- An individual is considered “fully vaccinated” if two (2) or more weeks have passed after the individual received the second dose of either the Pfizer or Moderna vaccine or the single dose of the Janssen/Johnson & Johnson vaccine.
- “Recently recovered” is defined as being: (1) recovered from laboratory-confirmed COVID-19 as to meet the criteria for discontinuation of isolation; (2) within three (3) months since the initial onset of COVID-19 symptoms or, if asymptomatic during the illness, the date of a positive COVID-19 test; and (3) asymptomatic.
All international and domestic travelers (as defined by the Advisory) are still required to complete the New York State Travel Form. Please note: New York State residents who voluntarily engage in non-essential travel are not eligible for benefits under New York’s COVID-19 Sick Leave Law.
Travel Restrictions for Unvaccinated Healthcare Workers
April 1, 2021 Update:
As of April 1st, domestic travelers are no longer required to quarantine after entering New York from another U.S. State or U.S. Territory. While no longer required, the NYS Department of Health still recommends quarantine after domestic travel as an added precaution. Mandatory quarantine remains in effect for international travelers. All travelers must continue to fill out the Traveler Health Form. Individuals should continue strict adherence to all safety guidelines to stop the spread—wearing masks, socially distancing and avoiding gatherings.
March 30, 2021 Update:
New York Department of Labor Issues Guidance on Paid Leave for COVID-19 Vaccinations
On March 12, 2021, Governor Cuomo signed a new law that grants paid leave to employees to get vaccinated for COVID-19. Under the statute, employees may take up to four hours of paid time off per vaccine injection however, the new law is silent on several key issues, which has left employers with numerous unanswered questions. Following the enactment of the law, the New York Department of Labor (NYDOL) issued guidance in the form of Frequently Asked Questions (FAQs) addressing some of these issues. Specifically, NYDOL provides the following information regarding documentation, notice, retroactivity, amount of leave, employer coverage, reason for leave, rate of pay and collective bargaining agreements:
- Documentation: The law does not prohibit employers from requesting proof of vaccination. However, employers are encouraged to consider applicable confidentiality requirements prior to requesting such documentation.
- Notice: The law does not prevent an employer from requiring an employee to provide notice prior to taking leave to get vaccinated.
- Retroactivity: The law does not create a retroactive entitlement to leave. This means that any employees who were already vaccinated as of March 12, 2021 are not entitled to additional paid leave under this law.
- Amount of Leave: The maximum number of hours to which an employee is entitled under this law depends on the number of required COVID-19 vaccine injections. Employees may take of four hours of leave per vaccine injection. This means, for example, that if a vaccine requires two injections, the employee is entitled to two periods of paid leave of up to four hours each.
- Employer Coverage: Both public and private employers are covered.
- Reason for Leave: An employee may only take leave under this law for his or her own vaccine injection, not for vaccination of a relative.
- Rate of Pay: The law requires employees to be paid at their regular rate of pay.
- Collective Bargaining Agreements: The rights afforded under this law may be waived in a collective bargaining agreement that specifically references Labor Law §196-c.
While the FAQs provide some clarity on the leave entitlement, several questions still remain unanswered. For example, NYDOL does not provide a definition as to what constitutes a “sufficient period of time” to receive a COVID-19 vaccine. Further, NYDOL does not address whether an employee may take leave under this law due to symptoms or side effects associated with a vaccine injection.
March 15, 2021 Update:
COVID-19 Vaccine Paid Leave
On March 1, 2021, the New York State Senate followed in the footsteps of the State Assembly by unanimously voting to grant both private and public employees up to four hours of paid leave to receive the COVID-19 vaccine. This measure was supported by Governor Cuomo who signed the bill into law on March 12, 2021. Employers and employees alike should note that this law is effective immediately and will remain so until December 31, 2022.
Click here for more information.
New York’s Travel Advisory 2.0: Frequently Asked Questions
New York’s travel advisory has been substantially altered during the past two weeks. On October 31, Gov. Andrew Cuomo issued Executive Order 205.2, which revised the New York State Travel Advisory for domestic travel. On November 3, the New York State Department of Health issued an updated guidance document (the November 3 Guidance). The changes made by Executive Order 205.2 and the November 3 Guidance have generated confusion. Below, we discuss some frequently asked questions we have received about these updates.
Which states and countries does the travel advisory apply to?
What does the travel advisory require?
Does the 24-hour exemption still apply?
How does the November 3 Guidance impact essential workers?
May international travelers qualify as essential workers?
Who is considered an essential worker?
What are the consequences for non-compliance?
Who must fill out the traveler health form?
Are there any other exemptions to the travel advisory?
March 23, 2021 Update:
New Jersey Governor Murphy Issues Three New Executive Orders
Governor Murphy has issued three new executive orders that will gradually ease the capacity restrictions on indoor and outdoor gatherings (Executive Order 238 and Executive Order 239) and summer youth camps (Executive Order 237). The indoor and outdoor gathering limitations for New Jersey are summarized at NJ.gov here – NJ gatherings guidance. In addition, on May 17, Governor Murphy announced that remote schooling will end after the present school year, all travel advisories have been lifted, and he expects to end the state of emergency by June 14. As of May 17, masking requirements have also been removed for outdoor public spaces and gatherings of fewer than 50 individuals in indoor private spaces, regardless of individuals’ ability to maintain six feet of distance from other individuals or groups and regardless of their vaccination status; but indoor masking requirements will remain in place for all indoor public locations (businesses, events, etc.) for a short while longer (Executive Order 241).
With these new Orders, New Jersey will join New York and Connecticut in dropping many of the remaining indoor and outdoor gathering restrictions by May 19, including completely removing the outdoor gathering limit, increasing the indoor gathering limit for general social gatherings, removing all percentage-based capacity limits for indoor and outdoor businesses and houses of worship, and increasing the indoor large venue capacity – though some mask and social distancing regulations will remain. Featured in New Jersey’s diminished restrictions are six foot distancing aspirations similar to those put forward by New York. In certain sections of the Executive Orders, New Jersey provides a little more detail about its “six foot rule.” In this regard, that rule (at least for dining) is said to require that the operator “ensure that tables in indoor areas where individuals or groups are seated are six feet apart in all directions from any other table or seat. . . . Where six feet of distance is not possible, establishments must erect barriers between tables or at the bar,” subject to New Jersey Department of Health (“NJDOH”) Standards.
Outdoor Gatherings: Executive Order 238 and Executive Order 239
Indoor Gatherings: Executive Order 238 and Executive Order 239
Executive Order 238 also lifted the prohibitions on indoor bar seating and self-service food, as of May 7. Food and beverage establishments may now:
In sum, on May 19, what remains for New Jersey businesses are restrictions that are largely geared toward a six foot rule and indoor public space masking requirements. As with New York, it is expected that New Jersey will be further delineating reopening rules through its own evaluation of vaccine, antibody, and/or testing passports or requirements.
March 23, 2021 Update:
New Jersey issues guidance confirming employers can mandate COVID-19 vaccines
New Jersey recently confirmed that employers can mandate their employees be vaccinated for COVID-19. This move aligns New Jersey with federal guidance previously issued by the EEOC.
Consistent with federal guidance from the EEOC, the New Jersey guidance provides that employers may require employees to be vaccinated to be present on the worksite, however, employers must provide reasonable accommodations for employees who: (i) have a disability, (ii) have been advised not to get the vaccine while pregnant or breastfeeding, or (iii) who will not get the vaccine due to sincerely held religious beliefs. Note, however, that if no reasonable accommodation can be provided, an employer can enforce its policy of excluding unvaccinated employees from the workplace.
Importantly, the guidance also confirms that employers may request medical documentation to confirm a disability or medical condition. Employers should be sure to follow all state and federal requirements in requesting such information and must treat the information as confidential.
While this guidance paves the way for New Jersey employers to mandate COVID-19 vaccines for their workforce, there are several considerations before implementing such a policy.
March 8, 2021 Update:
New Jersey Travel Restrictions
New Jersey strongly discourages all non-essential interstate travel at this time. At this time, individuals who have been vaccinated against COVID-19 should continue to follow the State’s travel advisory.
Travelers and residents returning from any U.S. state or territory beyond the immediate region (New York, Connecticut, Pennsylvania, and Delaware) should self-quarantine at their home, hotel, or other temporary lodging following recommendations from the CDC:
- If travel is unavoidable, travelers should consider getting tested with a viral test (not an antibody test) 1-3 days before the trip and again 3-5 days after the trip.
- If travelers test positive, they should self-isolate for at least 10 days and should postpone travel during that time.
- If travelers test negative, they should quarantine for a full 7 days after travel.
- If testing is not available (or if the results are delayed), travelers should quarantine for 10 days after travel.
The advisory is no longer specific to certain states. Because of the high number of case counts across all states, there is an increased risk of spread of COVID-19 upon return from any travel.
The self-quarantine is voluntary, but compliance is expected. Travelers arriving from areas with increasing COVID-19 cases may wish to postpone their travel to the region if they are unwilling or unable to follow the quarantine advisory.
Travelers and those residents who are returning from states and territories beyond the immediate region should quarantine at their home, or a hotel or other temporary lodging. Individuals should leave the place of quarantine only to seek medical care/treatment or to obtain food and other essential items.
Please note that this advisory does not apply to individuals:
- Who are returning to New Jersey after traveling outside of the state for less than 24 hours or those traveling to New Jersey for less than 24 hours – Even where travel is less than 24 hours, however, individuals are still discouraged from engaging in non-essential travel to other states to the extent possible.
- Who are in transit through the state to another destination, provided that the time spent in the state is only the amount of time necessary to complete the transit, make use of travel services, such as a highway rest stop, or make necessary travel connections.
People who have tested positive for COVID-19 in the past 3 months and recovered do not need to quarantine or get tested again during that three-month period as long as they do not develop new symptoms. If new symptoms develop after travel, people should follow instructions for what to do if you’re sick.
April 4, 2020 Update:
Paid Sick Leave & Family Leave Insurance Benefits
- Amended to permit employers to provide sick leave when an employee is unable to work because:
- There is a state of emergency or threat of health to others by the presence of an employee in the community (paid sick leave).
- The same circumstance as above but determination relates to an employee’s family member in need of care by the employee (paid sick leave & FLI).
- The employee is caring for a family member who is in isolation or quarantine because of “suspected exposure to a communicable disease” (paid sick leave & FLI).
- The employee is isolated or quarantined (paid sick leave).
- The employee’s workplace or child’s daycare or school is closed because of a state of emergency (paid sick leave).
April 4, 2020 Update:
Family Leave Act
- FMLA is amended to expand the definition of “serious health condition” during a state of emergency.
- This will apply to employers with 30+ employees.
- It prohibits an employer from denying family leave to any employee during an epidemic of a communicable disease or a known suspected exposure to such a disease.
- This will apply to care for a family member who needs to be quarantined; or because the family member’s place of care is closed due to a state of emergency.
April 4, 2020 Update:
Temporary Disability Insurance
- The law has been modified to waive the seven-day waiting period for benefits during a state of emergency if the disability is for illness caused by an epidemic of a communicable disease, a known or suspected exposure to the disease, or in an effort to prevent the spread of the disease.
- Employers with a private disability plan instead of a New Jersey state plan are required to provide these benefits as well.
March, 4, 2021 Update:
Governor Lamont Lifts Restrictions
Connecticut has signaled what appears to be the simplest return to normal in the tri-state area and perhaps has demonstrated the greatest degree of common sense in the area. In this regard, on May 1, 2021, Connecticut removed all outdoor restrictions and moved back the curfew for bars and restaurants. Further, the state has announced that all other restrictions are being lifted on May 19. Connecticut’s summary industry guidance can be found here and includes links to all applicable industry sector guidance. The published regulations at this point continue to include masking and distancing requirements, but Connecticut Governor Lamont has indicated he will conform the state’s requirements so as to follow the CDC’s recent mask guidance for fully vaccinated people. The Governor went on to clarify that in doing so the state would be relying upon an honor system to confirm vaccinations. It remains to be seen how this will play out in Connecticut and whether vaccine, antibody, and/or testing passports or requirements will be considered or required.
New York State – Guidance for determining whether a business enterprise is subject to a workforce reduction under recent executive orders
- Guidance for Determining Whether a Business Enterprise Is Subject to a Workforce Reduction Under Recent Executive Orders
- FAQs for Whether a Business Is Subject to a Workforce Reduction Under Recent Executive Order Enacted To Address Covid-19 Outbreak
New York State – How Much Paid Sick Time Are Employers Required to provide?
New Jersey Job Protection and Lost Wages
- Worker Benefits, Protections and the Coronavirus (COVID-19): What NJ Workers Should Know
- Legislation concerning time off from work in connection with infectious disease
- Legislation concerning temporary lost wage unemployment Program
NJ Department of Labor links: