Workforce Bulletin

Ready for the “new normal”? Starting January 15, 2022, Boston’s “B-Together” Vaccine Mandate (“the mandate”) will require certain indoor establishments to require proof of COVID-19 vaccination for entry from employees, contractors, and customers.

1. The mandate applies only to indoor portions of certain commercial food services, gym and fitness settings, and entertainment/recreation facilities in Boston

“Indoor food services” means indoor portions of food service establishments offering food and drink including restaurants, bars, and nightclubs. Fully enclosed “outdoor” areas are considered “indoor” under the policy. The mandate does not apply to open-air, outdoor areas, food service establishments offering food and/or drink exclusively for off-premises or outdoor consumption, or to food service establishments providing charitable food services, such as soup kitchens.

As we previously reported, in December New York Governor Kathy Hochul issued a mandate requiring that masks be worn in all indoor public places, unless the business or venue requires proof of vaccination for entry.  As part of the state’s “Winter Surge Plan 2.0”, the mandate, which was initially set to expire on January 15, has now been extended for an additional two weeks, through February 1, 2022.

New York recently updated two significant aspects of its Paid Family Leave program: (1) expanding the definition of “family member” to include siblings and (2) increasing the cap on weekly benefits available.

Since its inception in 2018, Paid Family Leave has offered eligible employees the ability to take  job protected, partially-paid time off to bond with a new child, care for a family member with a serious illness, or provide assistance when a family member is deployed abroad on active military duty. In 2020, after years of gradual increases in the maximum amount of leave and benefits, eligible employees may use up to 12 weeks of Paid Family Leave per rolling 52-week period.

On December 22, 2021, the New York State Department of Labor (NY DOL) issued the long-awaited proposed rule (Proposed Rule) regarding the workplace safety committees that are required by the New York HERO Act (HERO Act). While there is no current effective date for the Proposed Rule (which is first subject to a public comment period and a February 9, 2022 hearing), employers should become familiar with, and consider taking actions to timely comply with the Proposed Rule should it be adopted as currently drafted.

The HERO Act

In May of 2021, New York responded to workplace safety and health issues presented by the COVID-19 pandemic by enacting the HERO Act.  Since that time, the State has amended the HERO Act to allow the NY DOL additional time to create model safety standards for infectious disease exposure plans (“safety plans”) mandated by the HERO Act and to allow employers additional time for compliance.

Earlier this year, the New York State Workers' Compensation Board adopted amendments to the regulations for the New York Paid Family Leave Benefits Law clarifying that when Paid Family Leave (PFL) is taken intermittently, the maximum number of intermittent leave days an employee may take is based on the average number of days the employee works per week.

On December 27, 2021, the Centers for Disease Control and Prevention (CDC) announced an update to its isolation and quarantine guidance. Although the CDC’s update shortens both the isolation and quarantine periods, as described more fully below, the changes largely affect only asymptomatic individuals. Moreover, because local guidance may differ from the CDC’s recommendations, employers should keep in mind all applicable state and local requirements when deciding whether to amend their own rules.

On December 22, 2021, the New York Department of Labor (“DOL”) adopted rules (“Rules”) implementing the state’s sick leave law (NY Labor Law §196-b, or the “Sick Leave Law”), providing long-awaited clarification of the Sick Leave Law, which went into effect over a year ago on September 30, 2020. The Rules, codified as Section 196 to Title 12 of the NYCRR, were proposed on December 9, 2020, and adopted without change. In addition to providing definitions of terms used in the Sick Leave Law, the Rules address three topics: (i) documentation an employer may require to verify an employee’s eligibility to use sick leave; (ii) how to count the number of employees an employer has for the purposes of determining employees’ sick leave entitlement; and (iii) how to calculate an employee’s accrual of sick leave. In addition, the DOL’s response to public comments it received after the Rule was proposed, explain how carryover of accrued unused sick leave works.

On the evening of Wednesday, December 22, 2021, the Supreme Court of the United States announced that it will hold a special session on January 7, 2022, to hear oral argument in cases concerning whether two Biden administration vaccine mandates should be stayed. One is an interim final rule promulgated by the Centers for Medicare and Medicaid Services (“CMS”); the other is an Emergency Temporary Standard (“ETS”) issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”).  The CMS interim final rule, presently stayed in 24 states, would require COVID-19 vaccination for staff employed at Medicare and Medicaid certified providers and suppliers. The OSHA ETS, which requires businesses with 100 or more employees to ensure that workers are vaccinated against the coronavirus or otherwise to undergo weekly COVID-19 testing, was allowed to take effect when a divided panel of the United States Court of Appeals for the Sixth Circuit, to which the consolidated challenges had been assigned by the Judicial Panel on Multidistrict Litigation, issued a ruling on December 17, 2021, lifting a stay that had been previously entered by the Fifth Circuit. Multiple private sector litigants and states immediately challenged the decision.

New York City’s private employer vaccine mandate became effective Monday. December 27, 2021 and, the City has updated its FAQs document and the Accommodations Guidance document (“Guidance”).

Guidance Updates: The Guidance was amended to reflect that the New York City Human Rights Law provides for accommodations for pregnancy and for victims of domestic violence, sex offenses, or stalking in addition to medical and religious reasons. The Guidance also clarifies that the examples for medical exemptions for vaccination were those that had been found worthy by the CDC and New York City Department of Health and Mental Hygiene. Further, the Guidance modifies some language on the religious accommodation checklist around the types of information needed to support religious accommodation requests. As we previously shared, the checklist the City recommends that employers maintain and complete in connection with each religious accommodation request does not alleviate an employer’s need to analyze such requests on a case-by-case basis.

On Monday, December 20, District of Columbia Mayor Muriel Bowser announced a “situational update,” declaring a state of emergency due to the “Winter 2022 Surge” in COVID-19 cases driven by the Delta and Omicron variants. The District will combat the current rise in COVID-19 cases with a six-pronged approach outlined in an action plan (the “Plan”) published by the Mayor’s Office and implemented under Mayor’s Order 2021-147 (the “Order”).  The Plan includes expanding free testing programs, a new indoor mask mandate, and a vaccine mandate for city employees and contractors.

Expanded Testing

The District has been operating a program called “Test Yourself DC,” which provides free PCR testing kits for use at home. On December 20, 2021, nine new pick-up/drop-off sites were added to the program, making a total of 36 locations available. The Test Yourself locations are in addition to the eight public testing sites staffed by health professionals administering free PCR COVID-19 tests. Further, the program will be expanded to include “Test Yourself Express,” which will offer free at-home rapid antigen COVID-19 testing kits at eight DC public libraries. District residents who provide proof of residency will be permitted to get two free rapid tests per day and must report their results via an online portal.