On June 24, 2020, New York State issued a travel advisory requiring that anyone returning from a travel to states that have a significant degree of community-wide spread of COVID-19 must quarantine for a period of 14 days, consistent with the Department of Health (“DOH”) regulations for quarantine. The travel advisory went into effect at 12:01 a.m. on June 25, 2020.

On July 2, 2020, in response to frequently asked questions concerning the travel advisory, New York provided the following additional guidance.

  • The travel advisory is not a mandatory quarantine order. The travel advisory requires all New Yorkers, as well as those visiting from out of state, to take personal responsibility for complying with the advisory. However, DOH and the local health departments reserve the right to issue a mandatory quarantine order, if needed. Individuals who would like an order for purposes of applying for sick leave benefits should contact the local health department. However, pursuant to Executive Order 202.45, any New York State resident who voluntarily travels to a restricted state will not be eligible for benefits under New York’s COVID-19 paid sick leave law.
  • Special protocols for first responders and essential workers. As set out in DOH’s June 24, 2020 interim guidance for quarantine restrictions on travelers arriving in New York from restricted states, specific protocols must be followed by essential workers to allow such workers to work upon their return to New York, while taking steps to mitigate risk of transmission of COVID-19, including the following:
    • Short Term – essential workers traveling to New York State for less than 12 hours (e.g., passing through, delivering goods, and other short duration activities) should:
      • stay in their vehicle and limit exposure to the public as much as possible;
      • monitor temperature and signs of symptoms, wear a face covering in public, maintain social distance, and clean and disinfect workspaces;
      • avoid extended periods in public, contact with stranger, and large congregate settings, for 14 days.
    • Medium Term – essential workers traveling to New York State for less than 36 hours (e.g., delivering goods in New York, and other medium duration activities) should:
      • monitor temperature and signs of symptoms, wear a face covering in public, maintain social distance, and clean and disinfect workspaces;
      • avoid extended periods in public, contact with stranger, and large congregate settings, for 14 days.
    • Long Term – essential workers traveling to New York State for greater than 36 hours (e.g., working on longer projects, fulfilling extended employment obligations, and other longer duration activities) should:
      • Seek diagnostic testing for COVID-19 as soon as possible upon arrival (within 24 hours) to ensure they are not positive;
      • monitor temperature and signs of symptoms, wear a face covering in public, maintain social distance, and clean and disinfect workspaces;
      • avoid extended periods in public, contact with strangers, and large congregate settings, for 14 days.
    • Special protocols for healthcare personnel. Entities may allow healthcare personnel (“HCP”) who have traveled to a restricted state to work as essential workers if all the following conditions are met:
      • Furloughing the HCP would result in staff shortages that would adversely impact operation of the healthcare entity, and all other staffing options have been exhausted
      • HCP is asymptomatic
      • HCP received diagnostic testing for COVID-19 within 24 hours of arrival in New York
      • HCP is self-monitoring twice a day for temperature and symptoms, and receiving temperature and symptoms checks at the beginning of each shift, and at least every 12 hours during a shift
      • HCP is wearing a facemask while working
      • HCP should be assigned to patients at lower risk for severe complications, where possible
      • HCP should maintain self-quarantine when not at work
      • If HCP develops symptoms consistent with COVID-19, they should immediately stop work, isolate at home, and be referred for diagnostic testing for COVID-19.
    • Special protocols for students enrolled in New York State health care education programs who reside out-of-state. Out-of-state students who are currently enrolled in a New York State health care education program are required to adhere to essential worker guidance upon their arrival to New York.
    • Special protocols for people traveling for a medical appointment or procedure. Anyone traveling to New York State for a health care procedure or appointment that cannot be postponed can maintain the appointment, but must otherwise remain quarantined. In addition, individuals and their companions must abide by the following conditions, as set forth in the DOH’s June 28, 2020 interim guidance, and additionally:
      • if the procedure is more than 5 days from arrival to New York, seek diagnostic testing for COVID-19 as soon as possible upon arrival (within 24 hours) to ensure they are not positive;
      • monitor temperature and signs of symptoms, wear a face covering in public, maintain social distance;
      • avoid extended periods in public, contact with strangers, and large congregate settings, for 14 days.
    • Special protocols for Professional sports teams. Individuals traveling from restricted states to New York for a professional sports activity may travel to the extent necessary to participate in the professional sports activity, but must otherwise remain quarantined and avoid all public places and settings while in New York, consistent with the guidance for quarantine. In addition, as set forth in the DOH’s June 28, 2020 interim guidance, any player, coach, or staff otherwise associated with the professional sports team or league must:
      • Seek diagnostic testing for COVID-19 as soon as possible upon arrival (within 24 hours) to ensure they are not positive;
      • monitor temperature and signs of symptoms, wear a face covering in public, maintain social distance, and clean and disinfect workspaces, equipment, and playing areas for a minimum of 14 days;
      • avoid extended periods in public, contact with strangers, and large congregate settings, for 14 days.
    • Travelers visiting New York State for less than 14 days. Those travelers must quarantine for the entire time of their stay in New York, and should complete the remainder of the 14-day quarantine period in their return to their home state.
    • The travel advisory is not retroactive. If travelers arrived in New York from a restricted state prior to June 25, 2020, they do not need to quarantine.
    • Costs of quarantine and lost wages. Travelers are responsible for their own expenses during quarantine.
    • Clinical Testing. Obtaining a negative COVID-19 diagnostic test does not mean an individual traveling to New York from a restricted state may come out of quarantine, as symptoms may appear as late as 14 days after exposure. The full 14 day quarantine is still required.
    • Law Enforcement. The travel advisory does not direct law enforcement to stop people solely due to an out-of-state license plate.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On May 17, 2020, the New York State Department of Health (“DOH”) and New York State Department of Labor (“DOL”) jointly issued guidance on the use of New York’s COVID-19 sick leave for health care employers of health care employees, as detailed in our previous Client Alert.  On June 25, 2020, the agencies jointly issued the following supplemental guidance on the application of New York’s COVID-19 sick leave for health care employees: 

1. The definition of “health care employee” includes a person employed at a doctor’s office, hospital, long-term care facility, outpatient clinic, nursing home, end stage renal disease facility, post-secondary educational institution offering health care instruction, medical school, local health department or agency, assisted living residence, adult care facility, residence for people with developmental disabilities, home health provider, emergency medical services agency, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, including permanent or temporary where medical services are provided that are similar to such institutions.

2.  A health care employee who returns to work after completing a period of mandatory quarantine or isolation and who subsequently receives a positive diagnostic test result for COVID-19 is deemed to be subject to a second mandatory order of isolation from the Department of Health and is entitled to sick leave under the New York COVID-19 sick leave law for the second isolation period.  The health care employee must submit documentation of a positive test result, unless the health care employee’s employer administered the test. 

3.  A health care employee who is subject to an order of quarantine or isolation but continues to test positive for COVID-19 after the end of the quarantine or isolation period  is also deemed to be subject to a second mandatory order of isolation from the Department of Health and is entitled to sick leave under the New York COVID-19 sick leave law for the second isolation period.   Again, the health care employee must submit documentation of a positive test result, unless the health care employee’s employer administered the test.

4. However, health care employees may not qualify for sick leave under New York’s COVID-19 sick leave law for more than three orders of quarantine or isolation.  Moreover, the second and third orders must be based on a positive COVID-19 test. 

Takeaway for Employers

This new guidance clarifies that health care employees may be eligible for sick leave under New York COVID-19 sick leave law for up to three orders of quarantine or isolation based on positive COVID-19 test results. 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

According to the Interim Guidance for Quarantine Restrictions on Travelers Arriving in New York (the “Guidance”) issued by the New York State Department of Health (“DOH”) on June 24, 2020, healthcare workers, and other essential workers, are exempt from the quarantine restrictions on travelers from designated states. However, healthcare workers traveling from designated states are subject to certain conditions as well as the DOH’s other protocol for individuals who have contracted or been exposed to COVID-19.

Conditions For Healthcare Workers under the Travel Advisory

A healthcare worker traveling to New York from designated states is subject to certain conditions depending on the duration of time the worker spent in a designated state and the duration of time the worker intends to spend in New York.

Healthcare workers traveling from a designated state to New York for a period of less than 12 hours must:

  • stay in their vehicle and/or limit personal exposure by avoiding public spaces;
  • avoid extended periods of time in public, contact with strangers, and large congregate settings, to the extent possible;
  • monitor their temperature and for symptoms of COVID-19;
  • wear a face covering when in public;
  • maintain social distance of at least six feet; and
  • clean and disinfect workspaces.

Healthcare workers traveling from a designated state to New York for a period of less than 36 hours, but requiring an overnight stay in New York, are required to:

  • avoid extended periods in public, contact with strangers, and large congregate settings, to the extent possible;
  • monitor their temperature and for symptoms of COVID-19;
  • wear a face covering when in public;
  • maintain social distance of at least six feet; and
  • clean and disinfect workspaces.

Healthcare workers traveling to New York for a period of greater than 36 hours must:

  • avoid extended periods in public, contact with strangers, and large congregate settings, to the extent possible, for at least 7 days;
  • monitor their temperature and for symptoms of COVID-19, wear a face covering when in public, maintain social distancing, and clean and disinfect workspaces for at least 14 days; and
  • seek diagnostic testing for COVID-19 as soon as possible upon arrival (within 24 hours).

Return-to-Work Protocols for Healthcare Workers

In addition to the Travel Advisory Conditions, healthcare workers must meet certain criteria after having been exposed to a confirmed or suspected case of COVID-19 or having a confirmed or suspected COVID-19 infection.

According to the Protocols for Essential Personnel to Return to Work Following COVID-19 Exposure or Infection updated by the DOH on March 31, 2020, a healthcare worker who has been exposed to a confirmed or suspected case of COVID-19 may only permitted to work in the workplace if all of the following conditions are satisfied:

  • Working from home would not be feasible for the healthcare worker’s job duties;
  • The healthcare worker is asymptomatic;
  • The healthcare worker quarantines when not at work;
  • The healthcare worker undergoes temperature monitoring and symptom checks upon arrival to work and at least every 12 hours while at work, and self-monitors twice a day when at home;
  • The healthcare worker wears a facemask when required to interact with individuals within 6 feet for 14 days following the last exposure;
  • Environmental controls are implemented to permit a separation of greater than six feet where the healthcare worker’s job duties permit;
  • The healthcare worker immediately stops working and isolated at home if he or she develops symptoms consistent with COVID-19 (e.g., fever, cough, or shortness of breath); and
  • Testing is prioritized for healthcare workers with symptoms.

Additionally, a healthcare worker is a confirmed or suspected COVID-19 infection may only be permitted to work in the workplace if all of the following conditions are met:

  • Working from home would adversely impact essential services or functions, including critical public health and public works infrastructure in New York or the response to the COVID-19 public health emergency;
  • The healthcare worker has maintained isolation for at least 7 days after COVID-19 symptoms first appeared;
  • The healthcare worker has not had a fever for at least 72 hours, without the use of fever-reducing medications, and his/her other symptoms are improving;
  • The healthcare worker who is recovering from COVID-19 and returns to work wears a facemask for 14 days following onset of symptoms.

Takeaway For Employers

Healthcare workers are not subject to the general quarantine requirements of the Travel Advisory, but they must follow the applicable conditions when traveling to New York from a designated state. Healthcare employers should require employees who travel from designated states to abide by the Travel Advisory conditions and should follow the DOH’s Protocol for healthcare workers who are exposed to a confirmed or suspected case of COVID-19 or are confirmed or suspected of having a COVID-19 infection.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On June 24, 2020, New York Governor Cuomo, in conjunction with New Jersey Governor Murphy and Connecticut Governor Lamont, issued Executive Order No. 205 mandating quarantine restrictions on certain travelers arriving in New York State (the “Travel Advisory”). The Travel Advisory became effective on June 25, 2020.

The Mandatory Quarantine Requirement for Certain Travelers

The Travel Advisory requires any person entering New York from a state with either

  • a positive test rate for COVID-19 higher than 10 per 100,000 residents over a 7-day rolling average, or
  • a state with a 10% or higher positivity rate over a 7-day rolling average

to quarantine for a period of 14 days according to the New York Department of Health’s quarantine regulations.

Travelers from the following states are currently subject to the Travel Advisory: Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Texas, and Utah.

Exemption for Essential Workers

Essential workers are exempt from the quarantine requirements of the Travel Advisory. However, they are subject to other the terms and conditions based on:

  • the duration of time the individual spent in a designated state, and
  • the duration of time the individual intends to spend in New York.

An essential worker is:

  • any individual employed by any entity identified on the Empire State Development Essential Business List;
  • any individual who is employed as a health care worker, first responder, or in any position within a nursing home, long-term care facility, or other congregate care setting;
  • any individual who is employed as an essential employee and directly interacts with the public while working, pursuant to the New York Department of Health’s (“DOH”) May 31, 2020 Protocol for COVID-19 Testing; or
  • any other worker deemed essential by the New York Commissioner of Health.

Importantly, in addition to following the requirements of the Travel Advisory, employers and their essential workers are expected to comply with previously issued DOH guidance regarding an employee’s return to work after a suspected or confirmed case of COVID-19 or after an employee had close or proximate contact with a person with COVID-19.

Short Duration Travel to New York

This category applies to essential workers traveling to New York for a period of less than 12 hours and includes, but is not limited to, individuals passing through New York, delivering goods, and awaiting flight layovers. Essential workers in this category are required to:

  • stay in their vehicle and/or limit personal exposure by avoiding public spaces;
  • avoid extended periods of time in public, contact with strangers, and large congregate settings to the extent possible;
  • monitor their temperature and for symptoms of COVID-19;
  • wear a face covering when in public;
  • maintain social distance of at least six feet; and
  • clean and disinfect workspaces.

Medium Duration Travel To New York

This category applies to essential workers traveling to New York for a period of less than 36 hours, but requiring an overnight stay in New York, and includes, but is not limited to, individuals who are delivering multiple goods in New York and awaiting longer flight layover. Essential workers in this category are required to:

  • avoid extended periods in public, contact with strangers, and large congregate settings, to the extent possible;
  • monitor their temperature and for symptoms of COVID-19;
  • wear a face covering when in public;
  • maintain social distance of at least six feet; and
  • clean and disinfect workspaces.

Long Duration Travel to New York

This category applies to essential workers traveling to New York for a period of greater than 36 hours and includes, but is not limited to, individuals working on longer projects and fulfilling extended employment obligations. Essential workers in this category must:

  • avoid extended periods in public, contact with strangers, and large congregate settings, to the extent possible, for at least 7 days;
  • monitor their temperature and for symptoms of COVID-19, wear a face covering when in public, maintain social distancing, and clean and disinfect workspaces for at least 14 days; and
  • seek diagnostic testing for COVID-19 as soon as possible upon arrival (within 24 hours).

Exemption for Pass-Through Travelers

According to the DOH, the quarantine requirements of the Travel Advisory “do not apply to any individual passing through designated states for a limited duration (i.e., less than 24 hours) through the course of travel.” This includes individuals who briefly use rest stops or experience layovers in designated states when traveling by vehicle, bus, train, or airplane.

Exemption for Other Travelers

In addition to the exemptions listed above, the New York Commissioner of Health may grant an exemption to the Travel Advisory for other individuals based upon extraordinary circumstances. This exemption will not require the individual to quarantine, but may impose other terms and conditions on the individual to protect public health.

Takeaway For Employers

The Travel Advisory imposes additional restrictions on individuals who travel to New York from designated states. Employers should remain informed of which states the DOH designates as subject to the Travel Advisory. Employers also should require employees who travel from designated states to abide by the Travel Advisory quarantine requirements or other conditions as well as any other COVID-19 related return-to-work mandates.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On June 18, 2020, the U.S. Department of Labor’s (“DOL”) Occupational Safety and Health Administration (“OSHA”) issued guidance to assist employers and workers in safely returning to work and reopening businesses deemed “non-essential” during the COVID-19 pandemic. The guidance is intended to supplement the U.S. DOL and Department of Health and Human Services’ previously issued Guidance on Preparing Workplaces for COVID-19, and the White House’s Guidelines for Opening Up America Again. Moreover, reopening should align with the lifting of stay-at-home orders, as well as public health recommendations from the Center for Disease Control and Prevention (“CDC”) and other federal requirements or guidelines.

PLANNING FOR REOPENING

During all phases of reopening, employers should implement strategies for basic hygiene, including hand hygiene, cleaning and disinfecting, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training. In general, during:

  • Phase 1: Businesses should consider making telework available, if feasible, limit the number of people in the workplace in order to maintain social distancing practices, limit non-esssential business travel, and consider accommodations for workers at higher risk of severe illness and special accommodations with workers with household members at higher risk of severe illness.
  •  Phase 2: Businesses should continue making telework available, and continue to accommodate vulnerable workers. However, limitations on the number of people in the workplace can be eased while still maintaining moderate to strict social distancing practices, and non-essential travel can resume.
  •  Phase 3: Businesses resume unrestricted staffing of work sites.

For all phases of reopening, employers should develop and implement policies and procedures that address preventing, monitoring for, and responding to any emergency or resurgence of COVID-19 in the workplace and community. Based on evolving conditions, employer’s reopening plans should address:

  • Hazard assessment, including practices to determine likely sources of exposure to the virus by workers in the course of their duties. Examples include assessing job tasks, and considering potential exposure from coworkers, customers and visitors.
  • Hygiene, including practices for hand hygiene, respiratory etiquette, cleaning and disinfection. Examples include providing products for hand washing and hand sanitizing, encouraging frequent and proper handwashing, identifying high-traffic areas and targeting them for enhanced cleaning and disinfection using EPA-registered disinfectants, and adhering to CDC guidance for controlling the spread of the virus.
  • Social distancing, including practices for maximizing distance between all people. Examples include limiting business occupancy, placing demarcations on floors, posting reminders on signs, post directional signs in hallways and corridors.
  • Identification and isolation of sick employees, including practices for worker self-monitoring or screening and excluding employees with COVI-19 symptoms from the workplace. Examples include asking employees to self-screen before coming to work, and stay home if sick, and establishing protocols for managing people who become ill in the workplace, and cleaning and disinfecting exposed spaces.
  • Return to work after illness or exposure. Examples include following CDC guidance for discontinuing self-isolation, and ensuring that workers who have been exposed to someone with COVID-19 routinely monitor themselves in accordance with CDC guidance.
  • Controls, including engineering controls (e.g., physical barriers and enhanced ventilation), administrative controls and safe work practices (e.g., staggering work shifts, limiting breakroom capacity, practicing social distancing, eliminating in-person meetings, ensuring use of face coverings), and providing and ensuring workers us personal protective equipment (“PPE”).
  • Workplace Flexibilities. Examples include evaluating existing policies and consider including policies for teleworking, sick leave and other types of leave to minimize workers’ exposure to risks, and communicate the options to workers.
  • Training, including on the signs, symptoms, and risk factors associated with COVID-19, source of exposure, and prevention of spread in the workplace. Examples include training workers about the risk of exposure to COVID-19 and how they can protect themselves, and training on the policies on wearing face coverings in the workplace, and how to put on and take off PPE.
  • Anti-retaliation, including practices for ensuring that no adverse or retaliatory action is taken against an employee who adheres to these guidelines or raises workplace safety and health concerns. Examples include ensuring workers understand their right to a safe and healthful work environment, right to raise workplace safety and health concerns and seek an OSHA inspection, and prohibitions against retaliation for raising workplace safety and health concerns, identifying a contact person for questions or concerns about workplace safety and health, and ensuring supervisors are familiar with workplace flexibilities, human resource policies and procedures, and workers’ rights in general.

The examples provided are non-exhaustive, nor do they apply to every employer. Employers are urged to refer to the Guidance on Preparing Workplaces for COVID-19 and the OSHA COVID-19 webpage for additional recommendations for addressing and implementing these guiding principles.

APPLICABLE OSHA STANDARDS AND REQUIRED PROTECTIONS IN THE WORKPLACE

All of OSHA’s standards that apply to protecting workers from infection remain in place as employers and workers return to the workplace. While covered employer are always responsible for complying with all applicable OSHA requirements, the agency’s standards may be especially relevant for preventing the spread of COVID-19 including standards for PPE (29 CFR 1910.132), respiratory protection (29 CFR 1910.134), and sanitation (29 CFR 1910.141).

While there is no OSHA standard that is specific to the COVID-19 virus, employers are responsible for providing a safe and healthful workplace that is free from serious recognized hazards under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (“OSH”) Act of 1970. Appendix A of the guidance outlines some of OSHA’s general industry rules applicable to protecting workers from occupational exposure to COVID-19.

RESPONSES TO FREQUENTLY ASKED QUESTIONS

Employers may conduct work site COVID-19 testing. Consistent with EEOC and CDC guidance, OSHA’s guidance confirms that neither the OSH Act nor OSHA standards prohibit employer testing for COVID-19, if applied in a transparent manner applicable to all employees.

Employers may conduct work site temperature checks and other health screening. Similarly, consistent with EEOC and CDC guidance, OSHA’s guidance confirms that neither the OSH Act nor OSHA standards prohibit employer screening for COVID-10, including conducting daily in-person or virtual health checks, if applied in a transparent manner applicable to all employees. Any such screening should consider ways to maintain confidentiality, as required by the Americans with Disabilities Act (“ADA”).

Employers must follow OSHA requirements when conducting health screening, temperature checking or COVID-19 testing. According to OSHA’s guidance, if an employer implements health screening or temperature checks and chooses to create records of this information, those records might qualify as “employee medical records” under the Access to Employee Exposure and Medical Records standard, and the employer would be required to retain those records for the duration of each worker’s employment plus 30 years, and follow confidentiality requirements (29 CFR 1019.1020). However, temperature records do not qualify as medical records under the Access to Employee Exposure and Medical Records standard unless they are made or maintained by a physician, nurse or other health care personnel or technician. Moreover, the OSHA guidance clarifies that records do not need to be retained if employers do not make a record of the temperature checks, but instead acknowledge a temperature reading in real-time.   Under the EEOC’s guidance, employers are permitted to maintain a log of temperature check results, but does not specify any mandatory document retention period. Additionally individuals administering health screening, temperature checks or COVID-19 tests must be protected from exposure to the virus.

Employers must follow OSHA requirements regarding PPE. Employers must conduct a hazard assessment in accordance with OSHA’s PPE standard, if applicable, to determine the PPE requirements for their unique work site (29 CFR 1910.132). Employers subject to this standard must determine if PPE is necessary for employees to work safely after considering whether engineering and administrative controls and safe work practices can effectively mitigate identified hazards. Employers should consider modifying worker interactions in order to reduce the need for PPE. If PPE is necessary to protect workers from exposure to COVID-19 during particular tasks, employers should consider delaying those tasks until the risk subsides, or utilizing alternative means to accomplish the task. If PPE is needed but unavailable, and no alternatives means are available, the work tasks must be discontinued. Face coverings are not PPE, but can be worn to reduce the spread of the virus to others. Employers may consider requiring cloth face coverings to be worn in the workplace as an administrative control.

Employers should consult the EEOC guidance on other labor, disability and employment laws when conducting health screening. OSHA’s guidance encourages employers to review the EEOC’s guidance on health screening, workplace policies and return to work plans to avoid violating labor, disability and employment laws associated with health screening and medical issues related to COVID-19.

Employers should review the CDC’s guidance on return to work after exposure to COVID-19. OSHA’s guidance also refers employers to the CDC guidance on discontinuation of isolation for people with COVID-19 who are not in the healthcare settings.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On June 17, 2020, New York Governor Andrew Cuomo signed into law S.8397-A, which amends Section 741 of the New York Labor Law and creates a new definition of “improper quality of workplace safety.” Section 741 protects employees who blow the whistle on alleged improper workplace conditions. Under the existing Section 741, an employee may not be penalized for disclosing or threatening to disclose to a supervisor, or to a public body, an activity, policy or practice of the employer that the employee reasonably believes constitutes improper quality of patient care. The term “public body” had been interpreted to include federal, state and local regulatory agencies. The revised employer whistleblower law now protects health care workers who directly alert the public to PPE shortages or other improper care practices through the press or social media. To that end, the new law includes “news media outlet” and “social media forum available to the public at large” to the list of entities employees may inform about improper care practices. The new law is effective immediately.

Takeaway For Employers

The new legislation provides healthcare professionals with greater whistleblower protections, and will undoubtedly encourage more workers to speak out publicly about improper working conditions. Employers will have to review their disciplinary and social media policies to ensure compliance with the law. Any action taken against an employee after the employee voices concerns over social media may result in employer liability.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

 

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On June 5, 2020, President Trump signed into law the Paycheck Protection Program Flexibility Act (“PPPFA”) in an attempt to provide businesses with more time to maximize forgiveness of loans received under the Paycheck Protection Program (“PPP”), which we address in a previous alert, Coronavirus Aid, Relief and Economic Security Act – “Cares” Act. Specifically, the PPPFA provides forgiveness relief by making changes to the length of the covered period in which PPP borrowers must spend PPP funds to qualify for forgiveness, along with altering the mandated proportions in which PPP funds must be spent in order to qualify for loan forgiveness.

Key Provisions of the Law

The following is a summary of the main provisions of the PPPFA and the resulting material changes to the PPP:

  • The PPP Application Deadline is Extended. The PPPFA extends the deadline by which PPP loans can be applied for and disbursed from June 30, 2020 to December 31, 2020. However, a congressional letter was added to the record to clarify that applications for new PPP loans must be made by June 30, 2020. Although the SBA or Treasury Department may provide further guidance on whether applications will be accepted until December 31, 2020, employers seeking to apply for loans should err on the side of caution and apply prior to June 30, 2020.
  • The Repayment Term is Extended. The PPPFA extends the repayment term for unforgiven portions of PPP loans to five years for all new loans. Existing PPP loans retain their two-year term; however, lenders and borrowers can negotiate a longer term.
  • The Forgiveness Period is Extended. The PPPFA extends the period during which borrowers may receive forgiveness from repayment if they use the proceeds of a PPP loan for covered expenses from eight weeks after the loan disbursement date to 24 weeks after the date of disbursement of the PPP loan to the borrower, but in no event ending later than December 31, 2020.
  • The Minimum Required Use of Proceeds for Payroll Costs is Reduced. The PPPFA reduces the minimum percentage of loan proceeds required to be used for covered payroll costs to qualify for loan forgiveness from 75% to 60%, thus increasing the amount of funds available for other expenses. However, under PPPFA, the 60% requirement is a “Cliff” that must be met for any of the PPP loan amount to be forgiven. If a borrower fails to spend at least 60% of the loan amount on covered payroll expenses during the covered period, none of the loan will be forgiven. Before enactment of the PPPFA, if a borrower spent less than the 75% of the loan amount on covered payroll expenses, the borrower could still receive forgiveness on covered payroll expenses.
  • Rehire Requirements are Eased. The PPPFA extends the time a PPP borrower has to eliminate a reduction in employment, salary and wages that would otherwise reduce the forgivable amount of its PPP loan from June 30, 2020 to December 31, 2020. Additionally, under the PPPFA, the forgiveness amount of the loan will not be affected by a reduction in full-time equivalent employees if the borrower is able to document (A) that it is not able to rehire individuals who had been employees of the borrower on February 15, 2020; and an inability to hire similarly qualified employees for unfilled positions on or before December 31, 2020; or (B) that it is unable to return to the same level of business activity as such business was operating at before February 15, 2020, due to compliance with regulatory requirements or guidance established by the Department of Health and Human Services, the Center for Disease Control and Prevention, or the Occupational Safety and Health Administration between March 15, 2020 and December 31, 2020, related to the maintenance of standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID–19.
  • Payment Deferral is Extended. Under the PPP, the PPP loan’s principal and interest payments were to be deferred six months after the loan’s funding date. However, the PPPFA extends the deferral period to the “date on which the amount of forgiveness determined under Section 1106 of the CARES Act is remitted by the lender.”  The PPPFA further provides that a PPP borrower that fails to apply for forgiveness within 10 months after the last day of the 24-week forgiveness period must begin making principal and interest payments on a date that is 10 months after the ending date of the forgiveness period.

Takeaway for Employers

The PPPFA makes substantial changes to the PPP, particularly the PPP’s forgiveness provisions, and guidance previously provided by the SBA and the Department of Treasury. As a result, employers who have PPP loans should review the provisions of the PPPFA since the law changes various provisions related to forgiveness, including principal and interest deferment, rehiring requirements, and the amount of loan proceeds that must be used for payroll costs. Employers with existing PPP loans can try to negotiate a longer payment term, up to five years, with lenders.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On March 18, 2020, in response to the COVID-19 outbreak, New York State enacted an emergency COVID-19 leave law, providing workers with job protection, sick leave (paid or unpaid, depending on the size of the employer), and access to expanded family leave and temporary disability benefits, in the event they are subject to a mandatory or precautionary order of quarantine or isolation. 

On April 1, 2020, the federal Families First Coronavirus Response Act (“FFCRA”) went into effect, requiring certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. 

Under the FFCRA, covered employers may exempt health care providers from the leave requirements.  No such exemption is permitted under the New York law.  Thus, even if an employer is exempted by the FFCRA, it must still follow New York’s COVID-19 sick leave law. 

Recognizing that health care employees are essential to the fight against COVID-19, on May 17, 2020, the New York State Department of Health (“DOH”) and New York State Department of Labor (“DOL”) jointly issued guidance on the use of COVID-19 sick leave for health care employers of health care employees.

Heath Care Employees Defined

A “health care employee” is defined for purposes of this guidance as a person employed at a doctor’s office, hospital, long-term care facility, outpatient clinic, nursing home, end stage renal disease facility, post-secondary educational institution offering health care instruction, medical school, local health department or agency, assisted living residence, adult care facility, residence for people with developmental disabilities, home health provider, emergency medical services agency, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, including any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

NY COVID-19 Sick Leave Eligibility for Health Care Employees

Under the new guidance, a health care employee must not report to work and will be deemed to be subject to a mandatory order of quarantine from the Department of Health and thus entitled to sick leave under New York’s COVID-19 sick leave law if:

(1) An employer directs the health care employee not to work or prohibits a health care employee from working because:

  • the employer suspects or confirms the health care employee has been exposed to COVID-19;
  • the health care employee exhibits symptoms of COVID-19; or
  • the health care employee is diagnosed with COVID-19; or

(2) The health care employee has tested positive for COVID-19 and/or is symptomatic for COVID-19.

If an employer directs a health care employee not to work or prohibits the employee from working due to any of the reasons in (1) above, the health care employee does not need to provide the employer with any additional documentation.  If the health care employee has tested positive for COVID-19 and/or is symptomatic, the health care employee must still submit documentation from a medical provider, unless the employee’s employer administered the COVID-19 test. 

Exceptions for Staffing Shortage

Notwithstanding the above, an employer may require a health care employee who has been exposed to COVID-19 to report to work, if it can demonstrate a “staffing shortage” and the following other conditions are met:

  • the heath care employee is asymptomatic for COVID-19; and
  • the health care employee has not tested positive for COVID-19; and
  • the health care employee’s contact with confirmed or suspected cases of COVID-19 are limited to those that are asymptomatic

In addition, notwithstanding the above, an employer may require a health care employee who has tested positive for COVID-19 and/or has been symptomatic for COVID-19, to return to work prior to the end of a 14-day quarantine or isolation period, if the employer can demonstrate a “staffing shortage” and the following other conditions are met:

  • the health care employee with confirmed or suspected COVID-19 must:
    • maintain isolation for at least 7 days after onset of symptoms,
    • must be fever-free for at least 72 hours without the use of fever reducing medications, and
    • must have other symptoms improving.
  • the health care employee who has tested positive for COVID-19, but is asymptomatic, must:
    • maintain isolation for at least 7 days after the date of the positive;
    • if the employee develops symptoms during that time, the employee must maintain isolation for at least 7 days after developing the symptoms;
    • must be fever-free for at least 72 hours without the use of fever reducing medications; and
    • must have other symptoms improving.

For purposes of the health care employee exception, an employer demonstrates a “staffing shortage” by the following:

  • The employer has a staffing shortage of the type of health care employee that the employer seeks to report to work. For example, if the employer has a shortage of respiratory therapists, it can only require respiratory therapists to report to work. 
  • The employer’s staffing shortage would adversely impact the employer’s ability to safely provide health care services, and the employer has not been able to address the shortage through other means.
  • However, once a staffing shortage ends, the employer cannot require a health care employee to report to work if the health care employee would otherwise qualify for a mandatory or precautionary order of quarantine or isolation.

Takeaway For Employers

Employers of health care employees may now be able to exclude certain essential employees from New York’s COVID-19 sick leave requirements due to a demonstrated staffing shortage. However, employers of health care employees should continue to follow any DOH advisories regarding return to work.

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These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

 

As a result of the COVID-19 crisis, employers can expect employee lawsuits based on exposure to the disease within the workplace.  Employers may find themselves subject to lawsuits that seek to hold them liable for COVID-19 related injuries or deaths.  This is especially true in the essential business sector, where employers have not been able to transition to remote work arrangements.

Most claims for work-related injuries and illnesses are handled through workers’ compensation insurance, which is covered in each state. Workers’ compensation coverage traditionally includes compensation for medical expenses and lost wages for employees who are injured or become ill in the course of performing their job duties. Even though workers’ compensation is the employee’s exclusive remedy, there are instances in which states will allow workers to sue for damages if an employer’s conduct was intentional or grossly negligent. Pereira v. St. Joseph’s Cemetery, 54 A.D.3d 835, 836 (N.Y. App. Div. 2008).

Proving a Workplace Injury

In New York, in order to be eligible for workers’ compensation, claimants must prove that the injury they suffered was a direct result of performing their job duties. In infectious disease cases, employees must definitively establish that their illness was contracted during the performance of their job duties. Employees will have difficulty proving that they contracted COVID-19 in the workplace, particularly since COVID-19 is highly contagious and has a long incubation period. Employees may not be able to demonstrate when and where they actually contracted the virus.

The New York Worker’s Compensation Board has denied claims of infectious disease exposure where the illness or disease is common in society and could have been contracted in various locations. COVID-19 unquestionably meets that standard.

Since the burden of establishing a workers’ compensation claim for COVID-19 is high, some states, including New York, are discussing legislation which will make it easier for essential workers to demonstrate that the virus was contracted in the workplace.  Currently, no such laws or executive orders have been passed or issued in New York State.

Claims in Court

Workers’ compensation limits damages to an employee’s wages, often depending on the nature of the injury. As a result, employees and their families may commence lawsuits where they could receive greater damages. But bringing such a lawsuit is not simple. In New York, an employee must establish that an employer’s conduct was intentional or deliberate by demonstrating that the employer acted with the desire to bring about the injury. Doe v. State of New York, 89 A.D.3d 787 (2011). It will be extremely difficult for employees to prove that their employers desired that they become infected with COVID-19.

Takeaway

While the current workers’ compensation laws favor employers, employers should remain cautious. New York may follow the lead of California, where an executive order was recently issued creating the presumption that workers did contract COVID-19 from their employers.  It is important that employers adhere to the most recent CDC, state and local guidelines concerning COVID-19 prevention to limit their liability. Efforts should include adequate cleaning and sterilization of workplace facilities, mandating and providing protective face wear and gloves, monitoring employee health, and modifying the workplace to guarantee adherence to social distancing.  Employers should also continue to monitor changing guidelines and standards that apply to their industries.

 

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On May 14, 2020, the Centers for Disease Control and Prevention (“CDC”) released a modified version of its previously withheld guidance on re-opening workplaces, schools, restaurants and bars, camps, child care programs, and mass transit systems during the ongoing COVID-19 pandemic. The CDC guidance appears in the form of checklists that serve as decision-making tools for businesses, school administrators, and others. In addition to the CDC’s guidance, it is important to check with state and local health officials to determine the most appropriate actions in your local community. Our previous alert describing an unpublished, comprehensive version of the CDC guidance can be found here.

Guidance for Workplaces

Before workplaces consider re-opening, they should ensure that:

  • Re-opening would be consistent with applicable state and local orders; and
  • The employer is ready to protect employees at higher risk for severe illness.

Next, workplaces should ensure that all of the following recommended health and safety actions are in place:

  • Promote healthy hygiene practices, such as hand washing and employees wearing a cloth face covering, where feasible;
  • Intensify cleaning, disinfection, and ventilation;
  • Encourage social distancing and enhance spacing between employees, including through physical barriers, changing the layout of workspaces, encouraging teleworking, closing or limiting access to communal spaces, staggering shifts and breaks, and limiting large events, when and where feasible;
  • Consider modifying travel and commuting practices. Promote telework for employees who do not live in the local area, if feasible; and
  • Train all employees on health and safety protocols.

If all recommended health and safety actions are in place, workplaces should then ensure that all of the following ongoing monitoring safeguards are in place:

  • Develop and implement procedures to check for signs and symptoms of employees daily upon arrival, where feasible;
  • Encourage anyone who is sick to stay home;
  • Develop a plan in the event an employee becomes sick from the virus or is exhibiting symptoms;
  • Regularly communicate and monitor developments with local authorities and employees;
  • Monitor employee absences and have flexible leave policies and practices; and
  • Be ready to consult with the local health authorities if there are any cases in the facility or an increase in cases in the local area.

Once all recommended health and safety actions and all monitoring safeguards are in place, workplaces may re-open but should continue to monitor according to the established safeguards.

Summary of Guidance for Workplaces

Preliminary Considerations Health and Safety Actions

Monitoring Safeguards

·  Re-opening is consistent with state and local orders.

·  Ability to protect higher risk employees.

·  Promote healthy hygiene practices.

·  Intensify cleaning, disinfection, and ventilation.

·  Encourage social distancing and enhance spacing between employees.

·  Consider modifying travel/commuting; promote telework.

·  Train all employees on health and safety protocols.

·  Develop and implement screening procedures.

·  Encourage sick employees to stay home.

·  Develop a plan for employees who become sick.

·  Regularly communicate and monitor developments.

·  Monitor employee absences; have flexible leave policies.

·  Consult with local health authorities concerning COVID-19 cases

Guidance for K-12 Schools

Before schools consider re-opening, they should ensure that:

  • Re-opening would be consistent with applicable state and local orders;
  • The school is ready to protect children and employees at higher risk for severe illness; and
  • The school is able to screen students and employees upon arrival for symptoms and history of exposure.

Next, schools should ensure that all of the following recommended health and safety actions are in place:

  • Promote healthy hygiene practices, such as hand washing and employees wearing a cloth face covering, where feasible;
  • Intensify cleaning, disinfection, and ventilation;
  • Encourage social distancing through increased spacing, small groups, and limited mixing between groups, if feasible; and
  • Train all employees on health and safety protocols.

If all recommended health and safety actions are in place, schools should then ensure that all of the following ongoing monitoring safeguards are in place:

  • Develop and implement procedures to check for signs and symptoms of students and employees daily upon arrival, where feasible;
  • Encourage anyone who is sick to stay home;
  • Develop a plan in the event a student or employee becomes sick from the virus or is exhibiting symptoms;
  • Regularly communicate and monitor developments with local authorities, employees and families regarding cases, exposures, and updates to policies and procedures;
  • Monitor student and employee absences and have flexible leave policies and practices; and
  • Be ready to consult with the local health authorities if there are any cases in the facility or an increase in cases in the local area.

Once all recommended health and safety actions and all monitoring safeguards are in place, schools may re-open but should continue to monitor according to the established safeguards.

 

Summary of Guidance for Schools

Preliminary Considerations Health and Safety Actions

Monitoring Safeguards

·  Re-opening is consistent with state and local orders.

·  Ability to protect children and higher risk employees.

·  Ability to screen students and employees.

·  Promote healthy hygiene practices.

·  Intensify cleaning, disinfection, and ventilation.

·  Encourage social distancing

·  Train all employees on health and safety protocols.

·  Develop and implement screening procedures.

·  Encourage sick children and employees to stay home.

·  Develop a plan for children and employees who become sick.

·  Regularly communicate and monitor developments.

·  Monitor student and employee absences; have flexible leave policies.

·  Consult with local health authorities concerning COVID-19 cases

 

Guidance for Restaurants and Bars

Before restaurants and bars consider re-opening, they should ensure that:

  • Re-opening would be consistent with applicable state and local orders; and
  • They are ready to protect employees at higher risk for severe illness.

Next, restaurants and bars should ensure that all of the following recommended health and safety actions are in place:

  • Promote healthy hygiene practices, such as hand washing and employees wearing a cloth face covering, where feasible;
  • Intensify cleaning, disinfection, and ventilation;
  • Encourage social distancing and enhance spacing at establishments, including by encouraging drive-through, delivery, curb-side pickup, spacing of tables and stools, limiting party sizes and occupancy, avoiding self-serve stations, restricting employee shared spaces, and rotating or staggering shifts, if feasible; and
  • Train all employees on health and safety protocols.

If all recommended health and safety actions are in place, restaurants and bars should then ensure that all of the following ongoing monitoring safeguards are in place:

  • Develop and implement procedures to check for signs and symptoms of employees daily upon arrival, where feasible;
  • Encourage anyone who is sick to stay home;
  • Develop a plan in the event an employee becomes sick from the virus or is exhibiting symptoms;
  • Regularly communicate and monitor developments with local authorities and employees;
  • Monitor employee absences and have flexible leave policies and practices; and
  • Be ready to consult with the local health authorities if there are any cases in the facility or an increase in cases in the local area.

Once all recommended health and safety actions and all monitoring safeguards are in place, restaurants and bars may re-open but should continue to monitor according to the established safeguards.

Summary of Guidance for Restaurants and Bars

Preliminary Considerations Health and Safety Actions

Monitoring Safeguards

·  Re-opening is consistent with state and local orders.

·  Ability to protect higher risk employees.

·  Promote healthy hygiene practices.

·  Intensify cleaning, disinfection, and ventilation.

·  Encourage social distancing and spacing at establishments

·  Consider modifying travel/commuting; promote telework.

·  Train all employees on health and safety protocols.

·  Develop and implement screening procedures.

·  Encourage sick employees to stay home.

·  Develop a plan for employees who become sick.

·  Regularly communicate and monitor developments.

·  Monitor employee absences; have flexible leave policies.

·  Consult with local health authorities concerning COVID-19 cases

Guidance for Other Institutions

The CDC provides similar guidance for re-opening camps, child care programs, and mass transit systems amid the pandemic. They also consist of: (1) considerations before re-opening; (2) recommended health and safety actions; and (3) ongoing monitoring safeguards.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On April 27, 2020, New Jersey Governor Phil Murphy announced guidance on lifting the stay-at-home restrictions he implemented on March 21, 2020. Governor Murphy’s The Road Back: Restoring Economic Health through Public Health (“the Plan”) provides six principles to guide the State in easing its stay-at-home restrictions; however, the Plan does not provide any specific dates on which the restrictions will be lifted nor does it provide any additional restrictions that will be implemented.

The Road Back: Restoring Economic Health through Public Health

Governor Murphy explained the following six principles and key metrics to guide the State’s decisions in easing or lifting existing restrictions:

  1. Demonstrate sustained reduction in new COVID-19 cases and hospitalizations. Specifically, the Plan provides that 14-day trend lines should show an appreciable and sustained drop in cases, hospitalizations, and other metrics. Hospitals should no longer be functioning under crisis standards of care.
  2. Expand Testing Capacity. The Plan calls for doubling the State’s diagnostic testing, and the ability to have priority testing for health care workers, essential personnel, and vulnerable populations.
  3. Implement Robust Contact Tracing. Under the Plan, the State will recruit and deploy an army of personnel who will identify and follow-up with individuals who test positive for COVID-19.
  4. Secure Safe Places and Resources for Isolation and Quarantine. This principle calls for providing individuals who do test positive in the future with a safe and free place to isolate and protect others from COVID-19.
  5. Execute a Responsible Economic Restart. This principle calls for the creation of Restart and Recovery Commission to advise on restarting the State’s economy. Specifically, the Plan calls for a methodical and strategic return to work based on the level of disease transmission risk and essential classifications while continuing social distance measures where feasible and appropriate. The Plan also calls for the use of any available federal funds and programs to support health care, individual, and small business recoveries.
  6. Ensure New Jersey’s Resiliency. Under the last principle, the State would prepare for the possibility of a resurgence of COVID-19 cases by ensuring hospitals, health care systems, and other health delivery facilities have inventories of personal protective equipment and ventilators. The State would also build its own personal protective equipment and ventilator stockpile

Also, although not specifically referencing the Plan, on May 13, 2020, Governor Murphy announced that nonessential retail businesses could reopen for curbside pickup and nonessential construction could resume effective May 18, 2020

Takeaway For Employers

As demonstrated above, the Plan does not provide specific details regarding when certain business and industries will reopen nor does it provide specific restrictions and/or guidelines that businesses will have to follow upon opening other than a general reference to social distancing where appropriate. Although employers should plan ahead by thinking of reopening plans and protocols, advice from the Restart and Recovery Commission will likely affect those plans. Employers will also need to take into account federal guidelines, such as those from the Centers for Disease Control and Prevention (“CDC”) and the Occupational Safety and Health Administration (“OSHA”) in reducing employee exposure to COVID-19. In our previous alert, Employer Guidelines to Gradually Reopen After Stay-At-Home Orders Lifted, we outlined and summarized the CDC’s guidance on reducing exposure to employees in the workplace.

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If you have any questions regarding this alert, please do not hesitate to contact us.

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These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On March 7, 2020, Governor Andrew M. Cuomo declared a state of emergency in New York due to the COVID-10 pandemic and temporarily suspended or modified various rules to assist in coping with the disaster.  In order to respond to the crisis, on April 7, 2020, the Centers for Medicare & Medicaid Services (“CMS”) approved New York’s amendments in Appendix K to the Office for People with Developmental Disabilities (“OPWDD”) 1915(c) Comprehensive Home and Community-Based Services (“HCBS”) waiver.  Appendix K is a standalone appendix that may be used by states during emergency situations to request amendment to approved 1915(c) waivers.  In light of these measures, the OPWDD has issued the following guidance on modifications to care planning activities, community habilitation, day habilitation and prevocational services.

I. Interim Guidance Regarding Care Planning Activities

The guidance outlines the compliance requirements that have been temporarily waived by Appendix K and the Executive Order, retroactive to March 7, 2020, in order to provide the greatest amount of flexibility to monitor individuals’ health and safety and deliver needed support and services.  These waivers temporarily apply to Life Plans and Staff Action Plans during the COVID-19 state of emergency.

A. Face-to-Face Requirements Waived Unless Medically Necessary

In an effort to protect members and providers, the New York State Department of Health (“DOH”) has temporarily waived the requirement of face-to-face meetings for Health Home providers, including Health Homes Serving Adults, Health Homes Serving Children, and Care Coordination Organization/Health Homes (“CCO/HHs”).  Care managers may utilize telephonic or telehealth capabilities.  However, if a member has immediate care management needs, the care manager should assure a frequency of contact sufficient to keep the member healthy and safe.  See DOH COVID-19 Guidance for Health Homes at https://www.health.ny.gov/health_care/medicaid/ covid19/docs/2020-03-14_guide_hhsa_hhsc.pdf.

B. Annual Face-to-Face Life Plan Meetings Waived

Similarly, the annual face-to-face Life Plan meeting, and the annual assessments needed to complete the Life Plan, including the annual Developmental Disabilities Profile-2 (“DDP2”) and finalization of the Life Plan, may be postponed until the next semi-annual Life Plan review, but no later than six (6) months after the end of the state of emergency. Whenever possible, and if requested by the individual and/or their representative, the Life Plan meeting should proceed using telephonic, telehealth or other non-face-to-face methods.

C. Annual Level of Care Eligibility Determinations (LCED) Deferred

During the state of emergency, the annual LCED redetermination can be deferred for up to six (6) months from the original due date.

D. Coordinated Assessment System (CAS) Assessments

CCO/HH Care Managers have been temporarily relieved of duties related to coordinating CAS assessments, including gathering initial contact data for assessors, scheduling assessments, providing the supporting documents necessary to complete a CAS assessment, and attending a CAS assessment.  However, CCOs must develop direct access to the CCO care management system for CAS assessors to allow assessors to complete the CAS assessments without the help of Care Managers.  Care Managers should share and review the completed CAS assessments with the individual by telephone or mail within 30 days of receipt of the report.

E. Life Plan and Staff Action Plan Changes and Updates

During the public health emergency, services can be initiated while awaiting the Care Manager’s and individual’s representative’s Life Plan signatures.  Moreover, documentation of verbal or e-mail approval of proposed changes or additions to Life Plans are sufficient to deliver services, although verbal approval may only be used to initiate services while awaiting signature.  Corresponding Staff Action Plans must also be updated, although timelines have been waived until sixty (60) days after the end of the state of emergency.

In addition, the requirement that a service authorization request must be accompanied by a Life Plan, is also suspended.  Service amendments can be considered using other documents and a statement from the Care Manager about the need for any additional services or increase in services.

F. Requests for Service Authorization (RSAs) and Service Amendment Request Forms (SARFs)

During the state of emergency, if hand-written signatures are not possible or would cause undue delay, Care Managers and/or supervisors may use electronic signatures for the RSA and SARF.  Nor are signatures required on the RSA by the individual/family/representative if the Care Manager has documented that verbal agreement has been obtained, by writing “Verbal Agreement Obtained” on the signature line.

G. Medicaid Extensions

During the state of emergency, if hand-written signatures are not possible or would cause undue delay, Care Managers and/or supervisors may use electronic signatures for the RSA and SARF.  Nor are signatures required on the RSA by the individual/family/representative if the Care Manager has documented that verbal agreement has been obtained, by writing “Verbal Agreement Obtained” on the signature line.

II. Interim Guidance Regarding Community Habilitation

Community Habilitation is a Medicaid-funded program operated under OPWDD to provide training to people with intellectual and/or developmental disabilities so that they develop skills to live more independently in their homes or in the community.  The following modifications also apply to Community Habilitation services delivered by self-hired staff that are funded through a person’s Self Direction budget, and are in place throughout the state of emergency.

A. Location of Community Habilitation Services

The service definition and limits for Community Habilitation service have been temporarily modified to allow people who live in a certified residence with less than 24-hour staffing to receive Community Habilitation services in the residence, when the following conditions are met:

  • The person’s day service has been suspended due to COVID-19, or the person is unable to participate in the day service;
  • No day services can be delivered in the person’s residence; and
  • The daily Community Habilitation billing does not exceed six (6) hours of service per day, Monday through Friday.

In addition, Community Habilitation services may be provided in out-of-state locations, if necessary, for the safety of the service recipient, in accordance with the waiver service definition and the person’s Life Plan.  There should be no duplication of billing for Community Habilitation services and services otherwise provided in provider-owned residential settings.

A person’s current Life Plan and Staff Action Plan remains in place. Formal updates of the Staff Action Plan may occur later.  Additional guidance on timing of Life Plan and Staff Action Plan adjustments will be forthcoming.

B. Scheduling of Services for School Age Children and Young Adults

During New York’s COVID-19-related mandatory school closures, Community Habilitation may be temporarily delivered during weekday daytime hours to students who are authorized to receive Community Habilitation, up to the amount previously authorized for that individual.  Additional hours will not be authorized.

C. Billing Guidance on Community Habilitation

Community Habilitation providers will continue to bill the appropriate fee for services delivered under the current Community Habilitation fee schedule, at https://www.health.ny.gov/health_care/medicaid/rates/mental_hygiene/.

During the public health emergency, Community Habilitation agencies may temporarily provide and bill Medicaid for services that support the person and his or her family while maintaining social distancing, such as running errands, delivering groceries, or taking out garbage cans.  The time staff spends on these types of services may be billed as Community Habilitation and counted as part of the total billable service units.

Community Habilitation may also temporarily be provided remotely via telehealth, and without prior approval.  Community Habilitation providers must follow the OPWDD’s Interim Guidance Regarding the Use of Telehealth/COVID-19, at https://opwdd.ny.gov/coronavirus-guidance/covid-19-guidance-documents.  Health Homes may continue to bill at the applicable rate for members contacted via alternative means during the billing month.

III. Interim Guidance Regarding Day Habilitation

As with Community Habilitation services, Day Habilitation services can help people to develop their self-help, socialization and adaptive skills for greater independence and community inclusion. People accessing day habilitation often contribute to their communities through volunteer work. The following modifications are in place throughout the state of emergency.

A. Location of Day Habilitation Services

The service definition and limits for Day Habilitation service have been temporarily modified to allow Day Habilitation the following alternate locations:

  • The person’s private home;
  • The person’s family home;
  • A provider owned or controlled certified or uncertified residential setting; or
  • Any other emergency residential setting, such as a hotel.

Prevocational Services may also be provided in out-of-state locations, if necessary, for the safety of the person, in accordance with the waiver service definition and the person’s Life Plan.

A person’s current Life Plan and Staff Action Plan remains in place. Formal updates of the Staff Action Plan may occur later.  Additional guidance on timing of Life Plan and Staff Action Plan adjustments will be forthcoming.

B. Billing Guidance on Day Habilitation

There may be no duplication of billing for Prevocational Services and services otherwise rendered in provider-owned or controlled residential settings.

During the public health emergency, Day Habilitation agencies may temporarily provide and bill Medicaid for services that support the person and his or her family while maintaining social distancing, such as running errands, delivering groceries, or taking out garbage cans.  The time staff spends on these types of services may be billed as Day Habilitation.

Prevocational Services may also temporarily be provided remotely via telehealth, and without prior approval.  Prevocational Service providers must follow the OPWDD’s Interim Guidance Regarding the Use of Telehealth/COVID-19, at https://opwdd.ny.gov/coronavirus-guidance/covid-19-guidance-documents.  Health Homes may continue to bill at the applicable rate for members contacted via alternative means during the billing month.

Interim billing guidance to Day Habilitation providers was issued by OPWDD on March 24, 2020, regarding retainer day payments for service dates from March 18, 2020 through April 15, 2020, due to the suspension of these services effective March 18, 2020.  Billing instructions for service dates after April 16, 2020 will be forthcoming.

IV. Interim Guidance Regarding Prevocational Services

Prevocational Services prepare individuals with developmental disabilities for paid employment or meaningful community activities, such as volunteering.  The following modifications are in place throughout the state of emergency.

A. Location of Prevocational Services

The service definition and limits for Prevocational Services have been temporarily modified to allow Prevocational Services in the following alternate locations:

  • The person’s private home;
  • The person’s family home;
  • A provider owned or controlled certified or uncertified residential setting; or
  • Any other emergency residential setting, such as a hotel.

In addition, Day Habilitation services may be provided in out-of-state locations, if necessary, for the safety of the person, in accordance with the waiver service definition and the person’s Life Plan.

A person’s current Life Plan and Staff Action Plan remains in place. Formal updates of the Staff Action Plan may occur later.  Additional guidance on timing of Life Plan and Staff Action Plan adjustments will be forthcoming.

B. Billing Guidance on Prevocational Services

There may be no duplication of billing.  Day Habilitation provided in a supervised residence cannot be billed to Medicaid if the residential agency is also receiving an enhanced residential rate to reflect day-time staffing needs.

During the public health emergency, Prevocational Service providers may temporarily provide and bill Medicaid for services that support the person while maintaining social distancing, such as running errands, delivering groceries, or taking out garbage cans.  The time staff spends on these types of services may be billed as Prevocational Services.

Prevocational Services may also temporarily be provided remotely via telehealth, and without prior approval.  Prevocational Service providers must follow the OPWDD’s Interim Guidance Regarding the Use of Telehealth/COVID-19, at https://opwdd.ny.gov/coronavirus-guidance/covid-19-guidance-documents.  Health Homes may continue to bill at the applicable rate for members contacted via alternative means during the billing month.

Interim billing guidance to Prevocational Service providers was issued by OPWDD on March 24, 2020, regarding retainer day payments for service dates from March 18, 2020 through April 15, 2020, due to the suspension of these services effective March 18, 2020.  Billing instructions for service dates after April 16, 2020 will be forthcoming.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP


These materials have been prepared by Putney, Twombly, Hall & Hirson LLP for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create, and receipt does not constitute, an attorney-client privilege. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.

On May 1, 2020, the New York Compensation Insurance Rating Board (“NYCIRB”) announced two adjustments for employers who are paying employees sidelined by the COVID-19 pandemic, leading to a less-expensive rate for Workers’ Compensation Insurance.

I. New Classification Code for Temporary Change In Duties (COVID-19)

A new classification code has been established for employees who have been reassigned due to New York’s stay-at-home order related to COVID-19, and meet one of the following conditions:

  • are not performing any work duties (idle); or
  • are performing clerical work duties at home.

For employees who meet these requirements, their associated payroll will be reassigned to classification code 8873 – Telecommuter Reassigned Employees.  The loss cost rate for classification code 8873 will mirror the rate for clerical office employees.  In most cases, this new classification will result in substantial savings for employers.

This change applies to new policies effective May 1, 2020, as well as to current policies as of March 16, 2020.  Further, the change is applicable as of the start of New York’s stay-at-home order and for up to 30 days after its conclusion.

II. COVID-19 Claims Excluded from Experience Rating

In addition, the NYCIRB announced that workers’ compensation claims for COVID-19 diagnosis or illness after December 1, 2019 are to be excluded from the experience rating calculations for individual employers, since these claims are unlikely to be a predictor of future claim costs incurred by employers.

Takeaway for Employers

As many employers are paying employees who are not currently working, or working in a different capacity due to New York’s stay-at-home order, employers may get some relief in workers’ compensation premiums.  Employers should track the payroll that is assignable to these reclassified employees to help with audits and billing.

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Putney, Twombly, Hall & Hirson LLP

On May 5, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued technical guidance addressing accommodations for the return to work of employees with underlying medical conditions, through responses to three frequently asked questions. On the same day, the EEOC withdrew its guidance on one of those questions which concerned accommodation of these employees under the “direct threat to self” analysis, explaining that the information was “misinterpreted” in press reports and social media. On May 7, 2020, the EEOC re-issued its guidance on accommodations for employees with underlying medical conditions.

First, the EEOC clarified that it is the employee’s responsibility to request a reasonable accommodation. If the employee does not make a request, the ADA does not mandate that the employer take any action. The request may be verbal or written, and need not use the term “reasonable accommodation.” However, the employee must communicate that he or she has an underlying medical condition that requires a change to meet the medical need. The employer may then ask questions or seek medical documentation to decide if the employee has a disability and if there is a reasonable accommodation that can be provided without undue hardship.

Second, the re-issued guidance provides that an employer who knows that an employee has an underlying medical condition that may place him or her at “higher risk for severe illness” from COVID-19 cannot exclude that employee from the workplace, unless the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced by reasonable accommodation. The EEOC outlined steps employers must follow before reaching this conclusion.

In order to determine whether an employee poses a direct threat to himself or herself in the workplace, an employer must make an individualized assessment of the employee’s disability, taking into consideration the duration of risk, nature and severity of potential harm, the likelihood that harm will occur, imminence of potential harm, the severity of the pandemic in the particular area, and the employee’s job duties, likelihood of exposure to the COVID-19 virus at the worksite, and protective measures taken by the employer, including mandatory social distancing.

Next, even if the employee meets the direct threat to self test, the employer cannot exclude the employee from returning to the workplace, or take any other adverse action, unless no reasonable accommodation can be provided to eliminate or reduce the risk, absent undue hardship. The employer must engage in the interactive process and must consider accommodations such as telework, leave, or reassignment. An employee may only be excluded from the workplace if, after completing these steps, the facts support the conclusion that the employee poses a direct threat to himself or herself that cannot be reduced or eliminated by reasonable accommodation.

The third guidance issued by the EEOC provides examples of accommodations, absent undue hardship, that may eliminate or reduce a direct threat to self. They include providing enhanced protective gowns, masks, gloves and other personal protective equipment, erecting a barrier that separates the employee from others, removing marginal functions, temporarily modifying work schedules, or moving the location of the employee’s work. These are not exhaustive, and the EEOC encourages employees and employers to be creative and flexible.

Takeaway For Employers

As employers begin the process of reopening their businesses, they should be implementing strategies to mitigate the risk of infection in the workplace. However, some employees may have underlying medical conditions that place them at higher risk for severe illness if infected with the COVID-19 virus. Employers should address those situations on an individualized basis and engage in the interactive process to determine whether accommodations can be provided to eliminate or reduce the risk.

 

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Putney, Twombly, Hall & Hirson LLP

As the COVID-19 pandemic shows signs of lessening and states begin to permit businesses to re-open, employers may face a new wave of coronavirus-related litigation.  This Client Alert details some of the types of litigation employers may see as business-as-usual begins to resume.

Wage and Hour Claims

The drastic business changes and transition to telework may result in employers being sued for wage and hour violations pursuant to the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”).

The FLSA and the NYLL require employers to pay all employees for all hours worked and require employers to pay non-exempt employees at a premium overtime rate for any hours worked over 40 hours per week.  See 29 U.S.C. §§ 206-207; N.Y. Lab. Law §§ 652.

As businesses were shut down by New York State Governor Cuomo’s executive orders, and employees were forced to transition to working remotely, many employers have been confronted with challenges regarding tracking employees’ hours worked and ensuring that employees do not work through their meal and/or rest breaks.  These timekeeping challenges may result in lawsuits by employees claiming that they were not paid for all hours worked.

Another wage-and-hour issue resulting from the COVID-19 pandemic is whether employees are entitled to compensation for time spent on health-protective measures, such as (1) waiting for and receiving temperature checks, (2) waiting to receive or cleaning personal protective equipment, or (3) sanitization and hygiene training.  As these activities may constitute compensable time, employers may face claims that employees were not properly paid during these times.

Sick and Disability Leave

As a result of the ongoing pandemic, federal and state legislation has been enacted to provide employees who are unable to work due to circumstances relating to COVID-19 with emergency paid leave.  The federal government enacted the Family First Coronavirus Response Act (“FFCRA”), effective April 1, 2020, which requires covered employers to provide paid sick leave and expanded family and medical leave to eligible employees between April 1, 2020 and December 31, 2020.  Additionally, New York State enacted Emergency Paid Sick Leave (“N.Y. EPSL”), which guarantees job-protected paid sick leave to certain employees subject to an order of quarantine, and Emergency Paid Family Leave (“N.Y. EPFL”), which requires all employers to provide employees subject to a mandatory or precautionary order of quarantine or isolation or providing care for a minor dependent child subject to a mandatory or precautionary order of quarantine or isolation with paid leave.  During the COVID-19 pandemic, employees may also request (and may be entitled to use) leave pursuant to the Family Medical Leave Act (“FMLA”), New York’s Paid Family Leave Law (“N.Y. PFL”), and other local paid leave laws for pandemic and non-pandemic related reasons.

Employers need to ensure that they review employees’ requests for leave pursuant to these laws, properly determine employees’ eligibility for paid or unpaid leave, and appropriately compensate employees when required.  Employers may face legal action from employees if they fail to properly implement the emergency paid leave and other leave of absence laws by wrongfully denying time off, miscalculating pay, or retaliating against employees who request or use leave.

Discrimination Claims

Employers may also face litigation regarding disability discrimination pursuant to, inter alia, the Americans with Disability Act (“ADA”) and New York State Human Rights Law (“NYSHRL”) as a result of the COVID-19 pandemic and the transition to and from teleworking.

The ADA and NYSHRL give qualified workers the right to request and receive a reasonable accommodation that assists them in performing the essential duties of their position.  As in-office functions were shut down and businesses were forced to transfer their operations to teleworking, employers may face disability discrimination claims from employees who requested and did not receive reasonable accommodations to allow them to perform their job duties remotely.  Additionally, employers may be required to continue any reasonable accommodations they were providing prior to the pandemic to employees during the remote-work period.

Employers may also face disability discrimination claims as businesses re-open and employees return to work.  Employees who are particularly vulnerable to COVID-19 may request accommodations, including teleworking, to allow them to safely perform their job duties.  While many employers may have previously been able to argue that an employee’s physical presence at work was an essential function of the job or teleworking was an unreasonable accommodation, these arguments may be undermined if employers have continued their operations remotely during the pandemic without significant interruption.

Liability from Layoffs

WARN Acts Litigation

Rapid layoffs, furloughs, and the reduction of employees’ hours due to coronavirus-related business shutdowns may result in liability for employers who failed to comply with the federal Worker Adjustment and Retraining Notification Act (“federal WARN Act”), 29 U.S.C. § 2101 et seq., and the New York State equivalent, N.Y. Lab. Law § 860-a et seq. (“N.Y. WARN Act”) (collectively, the “WARN Acts”).  The notice requirements pursuant to the WARN Acts have not been suspended during the COVID-19 pandemic.

The WARN Acts require covered employers to provide employees with advance notice of an employment loss due to a mass layoff or plant closing.  An employment loss under both WARN Acts includes any of the following:  (1) a layoff exceeding six months; (2) a termination of employment for reasons other than discharge for cause, voluntary departure, or retirement; and (3) a greater than 50% reduction in work hours during each month of any 6-month period.  29 U.S.C. § 2101(a)(6); 20 C.F.R. § 639.3(f); N.Y. Lab. Law § 860-a(2); 12 N.Y.C.R.R. § 921-1.1(f).  Thus, employers who executed layoffs or implemented furloughs or hours reductions which ultimately last greater than six months may face lawsuits from employees for WARN violations.

Employers may argue that the exceptions to the WARN Acts for unforeseeable business circumstances and natural disasters excuse any failure to comply with the notice requirements.  See 20 C.F.R. § 639.9; 12 N.Y.C.R.R. §921-6.1 et seq.  However, it is unclear whether these exceptions apply to emergencies resulting from the COVID-19 pandemic

Discrimination and Retaliation Claims

Employers may also face discrimination and/or retaliation suits from laid off employees.  Former employees may claim that an employer’s selection of workers for layoff was based on a protected status or resulted in a disparate impact on workers of a protected class in violation of, inter alia, Title VII and NYSHRL.

Moreover, laid off employees may bring actions against their former employers claiming that they were retaliated against for requesting or taking leave pursuant to the FFRCA, N.Y. EPSL, N.Y. EPFL, or other leave of absence laws.  For example, a former employee has filed an action in federal court claiming that the airline she worked for retaliated against her by laying her off after she requested leave pursuant to the FFRCA. Jones v. Eastern Airlines, LLC, No. 20-cv-01927 (E.D. Pa. Apr. 16, 2020).

Employee Safety Actions

The Occupational Safety and Health Administration (“OSHA”) has issued guidance advising employers to follow the Center for Disease Control and Prevention’s coronavirus safety recommendations.  However, OSHA has not implemented specific requirements regarding safety measures to address coronavirus in the workplace.

As employees, particularly essential workers, become sick with coronavirus from workplace exposure, employers may face claims regarding unsafe working conditions.  Although the Occupational Safety and Health Act does not permit employees to directly sue regarding safety disputes, other than claims of retaliation, employers may face an increased number of worker’s compensation claims and state law actions regarding workplace illness.  Additionally, OSHA may bring enforcement actions against employers who have failed to ensure that the workplace is free of hazards that may cause death or serious physical harm, including coronavirus.  See 29 U.S.C. 654(a)(1).

Takeaway for Employers

Employers should continue to track and record employees’ hours worked, ensure paid and unpaid leave is provided to employees in accordance with the emergency paid leave and other leave of absence laws, and document non-discriminatory reasons for adverse employment decisions.  Employers should also contact their counsel prior to implementing health-and-safety practices, executing layoffs or furloughs, or reducing employees’ pay or hours.

 

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP