COVID-19 Update: Sixth Circuit Dissolves Stay of OSHA ETS; NYC Child Vaccination Leave and COVID Designation Extended under HERO
The employment law landscape is ever-changing when it comes to COVID-19 and compliance issues. This alert summarizes some recent key developments: the dissolution of the stay on the OSHA vaccinate or test mandate, the passage of child vaccination leave for COVID-19 in NYC, and the extension of the designation of COVID-19 as an airborne infectious disease for HERO Act purposes.
OSHA ETS
As employers are aware, on November 5th, the Occupational Safety and Health Administration (OSHA) published an Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to implement policies either mandating vaccination or requiring employees to wear face coverings and engage in COVID-19 testing. The ETS was challenged in courts throughout the country and the Fifth Circuit stayed the ETS. Following this decision, all legal challenges to the ETS were consolidated and transferred to the Sixth Circuit via lottery system.
On December 17, 2021, a three-judge panel of the Sixth Circuit Court of Appeals dissolved the stay and found that OSHA has “the authority to regulate infectious diseases and viruses” and “a wide discretion to form and implement the best possible solution to ensure the health and safety of all workers.” Further, in reviewing the four factors to determine whether a stay pending further judicial review is warranted, the Sixth Circuit found that parties challenging the ETS cannot establish a likelihood of success on the merits. The Court also rejected constitutional challenges to the ETS including challenges under the Commerce Clause and the Non-Delegation Doctrine.
Following the decision from the Sixth Circuit, a group of 26 trade groups filed an Emergency Application for Immediate Stay of Agency Action Pending Disposition of Petition for Review, directed to Supreme Court Justice Brett Kavanaugh. This application requests an immediate stay of the effective date of the OSHA ETS or that this application be treated as both a motion to stay and a petition for writ of certiorari to the Supreme Court.
In response to this decision, OSHA announced that it will be exercising enforcement discretion concerning compliance dates of the ETS. OSHA will not issue citations for non-compliance with any requirements before January 10, 2022, and will not issue citations for non-compliance with the standard’s testing requirements before February 9, 2022, as long as employers exercise reasonable, good faith efforts to comply with the ETS.
At this point, there is still a good degree of uncertainty surrounding next steps. As employers wait for Justice Kavanaugh’s response, and potentially a decision from the Supreme Court on this issue, they should consider whether to take steps to comply with OSHA’s revised timelines.
Child Vaccination Leave for COVID-19
The New York City Council recently passed a bill that, if enacted, would require employers to provide employees with paid time off to take their child to COVID-19 vaccine appointments and to care for their child if they experience any temporary vaccine side effects (“COVID-19 Child Vaccination Time”). Mayor DeBlasio is expected to sign the bill. Although this law would amend the New York City Earned Sick and Safe Time Act (“ESSTA”), COVID-19 Child Vaccination Time is in addition to, and cannot be charged against, the sick or safe leave provided to employees under ESSTA.
Which employers would be required to provide COVID-19 Child Vaccination Time?
All New York City employers would be required to provide COVID-19 Child Vaccination Time to their employees. While ESSTA only requires employers with four or more employees to provide paid sick and safe leave, the current bill appears to require that COVID-19 Child Vaccination Time be paid leave, regardless of the size of the employer.
When could employees use COVID-19 Child Vaccination Time?
An employee who is a parent of a child under the age of 18, or the parent of an older child who is incapable of self-care because of a mental or physical disability, would be able to take 4 hours of COVID-19 Child Vaccination Time per vaccine injection for an absence from work due to any of the following reasons associated with the child’s COVID-19 vaccination:
Accompanying the child to receive a COVID-19 vaccine injection; or
Caring for such child who is experiencing temporary side effects from a COVID-19 vaccine injection
Would employers be required to pay employees for COVID-19 Child Vaccination Time?
Yes. COVID-19 Child Vaccination Time would be paid at an employee’s regular rate of pay.
Could employers require notice of the need for COVID-19 Child Vaccination Time?
Yes. An employer would be permitted to require reasonable notice of the need to use COVID-19 Child Vaccination Time. Where the need for time off is foreseeable, an employer could require reasonable advance notice of the intention to use such time, but could not require notice more than 7 days prior to the date of time off. Where the need for time off is not foreseeable, an employer could only require an employee to provide notice of the need for time off as soon as practicable.
What documentation of the use of COVID-19 Child Vaccination Time could the employers require?
An employer would be able to require that within 7 days of an employee’s use of COVID-19 Child Vaccination Time, the employee provide reasonable documentation that the child received a COVID-19 vaccine injection.
If signed by the Mayor, when would the law go into effect?
The law would go into effect immediately upon the Mayor’s signature. In addition, the law would be retroactive, and deemed to have been in effect as of November 2, 2021. Due to the retroactive effect, employers would be required to pay employees for any leave time or unpaid leave they took to accompany a child to a vaccine appointment or care for them after from November 2, 2021, through the effective date of the law.
Despite the retroactive effect of the law, the NYC Department of Consumer Affairs would not impose penalties on employers for failing to provide COVID-19 Child Vaccination Time during the 60 days after the bill becomes law without first providing an employer with written notice of an alleged violation and 15 days to cure such alleged violation. The law will expire on December 31, 2022.
What else should employers be aware of?
As employers will recall, the provisions of ESSTA can be waived through a collective bargaining agreement if the collective bargaining agreement provides comparable sick and safe time benefits. However, the right to COVID-19 Child Vaccination Time cannot be waived through a collective bargaining agreement.
Employers should prepare to offer COVID-19 Child Vaccination Time to their employees in anticipation of Mayor DeBlasio signing the bill and should consider whether to amend any existing policies related to vaccination leave to reflect this new requirement.
COVID-19 Designation Extended Under the HERO Act
We’ve previously reported on the obligations New York State employers have under the New York State HERO Act to develop airborne infectious disease prevention plans and to implement them when there is a designated outbreak. COVID-19 was designated an airborne infectious disease by the New York State Commissioner of Health on September 5, 2021. This designation had previously been extended to December 15, 2021. On December 15, 2021, the Commissioner of Health extended this designation again until January 15, 2022: the same date Governor Hochul’s recent mask mandate expires. Given the current state of the pandemic and the reported numbers of positive tests, employers should expect that both the mandate and the outbreak designation will be extended again.
Employers with questions about the ETS, COVID-19 vaccination or testing/masking policies, or complying with the New York State HERO Act should contact Caroline Secola at csecola@fglawllc.com, Amanda Baker at abaker@fglawllc.com or any attorney at the Firm.
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