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The Top Ten employment law issues presented by COVID-19 with Doug Rowe of Certilman Balin
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Opportunity Calls with Ellen Volpe S1 E4 Doug Rowe 

 

Audio Transcript 
 

Opportunity calls with Ellen. Volpi is sponsored by Long Island com. 

Ellen Volpe 

Joining me today is Doug Rowe, a partner in the law firm Certilman Balin, you represent the Employment Group, Labor and Employment Group at the firm. There are so many issues facing business owners today, from sexual harassment to discrimination, wage and hour as well as many other employment related claims. It’s really a virtual mind field for business owners today and since the arrival of COVID and the need for many non-essential workers to be working at home, I believe these issues have become even more onerous for an employer. I’m wondering if you could speak today to the importance of tracking the work time and the schedules during this particularly hard place to be, and because remote work is so common, can you really speak to some of the liabilities today that are facing employers? 

Doug Rowe 

Thank you, Ellen. I’m going to address your question but before I do that I want to give you the top ten claims that we see arising out of the out of the pandemic. First of all there was the emergency legislation called the families First Coronavirus Act FCRA which requires employers to permit their employees to take a paid leave of absence, so employers have to be aware of that and again that’s new legislation. Also arising out of the pandemic is an increase in accomodation claims under the Americans with Disabilities Act. Under the family Medical Leave Act, employers have to provide their employees with a reasonable accommodation. That’s a fact intensive inquiry as to employees entitlements, there’s been a rise in discrimination cases. You know, based upon at perception by employers that older employees may be more vulnerable to catching coronavirus in the workplace, so maybe they’d be inclined. Not to permit them to come back into the workplace is also perception, for example, that pregnant employees also may be more vulnerable to greater risk. So, you know, employers have to be careful when they address issues like that. Failure to follow WARN Act notices employers, whether it be by federal or state. They are required to give their employees advanced notice arising out of a mass layoff. Obviously at the beginning of the pandemic we had mass layoffs in many different companies and notices were required and if notices weren’t. Required you know certain amount of notice pay was also required. So that’s something that has created litigation as well health related claims for example, employees of many employees could think that they actually contracted the coronavirus in the workplace could result in workers comp claims for example, even though that would be a hard thing to prove? Nevertheless, that’s created claims. We have cyber security and trade secret claims now with employees working from home as much as they are. Employers Have to be cautious of protecting their trade secrets with employees using their own computers, with employees you know, not necessarily paying attention to the same computer issues that they then have in the office. And there are several other potential claims as well. Employers have to pay attention to employee benefit issues and potential whistleblower claims by employees who feel that the workplace isn’t safe enough to work. With respect to that, though, you. Here’s what we’ve seen like the most? 

The biggest issues and most of the claims are rising out of potential wage and hour issues. So larger employers may have many employees who now the employers want to have medical screening. Every day. So if if an employer has literally hundreds of employees who each day have to have their temperature taken, well, it’s the time that employees have to wait on line to be screened compensable time. That’s one of the issues. The answer is, it appears that that’s compensable time, but there hasn’t been a lot of case law arising out of that yet. Telework challenges employers have an obligation to keep track of employees. Time employees may have a tendency when they’re working from home to work. Whenever they want. They wake up, they go to work, they stop. Working they come back to work, so it’s important for the employer to make sure that the employee follows the schedule. Let’s say it’s nine to five. That’s the that’s the time the employee works. Employers are also required to provide meal periods and rest periods for their employees. Well, the law is the same whether they work from home or in the office, so employers have to make sure that employees are complying with the meal period laws as well. 

Ellen Volpe 

I had whole list of questions to ask you, and you’re answering them clearly in one breath because it’s so overwhelming. 

Doug Rowe 

I Didn’t even mention all the potential liability. He claims, just let me mention this because this is like, you know strange to think about, but nevertheless it’s an issue, but employers have to provide a safe workplace. When employees work from home, that’s their workplace. And if an employee gets injured at home, that’s covered by workers comp. So you know, that’s another reason why you have to have a. Tele work policy which really reminds the employees of their obligations to the employer and their and really trying to get employees also to think about the fact that their home is now the workplace and they have the same obligations at home that they do than they do at the physical work location. 

Ellen Volpe 

So if a company actually makes an amendment to a policy and procedure manual. Is there some type of a signature that has to be documented so that the employees basically acknowledge that these changes for COVID situations have taken place? Or is it is it enough for the company? To update this manual and are there? Are there any assumptions being made? 

Doug Rowe 

Smart employers will prepare an employee handbook smart employers will require their employees to sign an acknowledgement of receipt of the employee handbook. The employee handbooks usually contains a provision that says the employer has the right to make amendments modifications to the handbook at anytime, with or without notice. But again, the best advice is. If there are amendments, if there are modifications to, if their employees are working from home to send them to the employees and ask the employee to acknowledge receipt of that amendment, just and and put it in their personnel file in that way you know there won’t be any question as to the employees you know knowledge of that existing policy. 

Ellen Volpe 

So it’s sort of a funny question and probably almost impossible to answer. What would your advice be to somebody that all of a sudden is seeing this maybe for the first time, not necessarily the first time, but putting it all together in one place as a uh, as a red light? So to speak, what would your advice be? Where would a person like that actually start? 

Doug Rowe 

By contacting their employment lawyer. So that I guess you know it, as I said before, it’s important to have the employee handbook, but depending on the size of the company, it’s important also to make sure that they train their managers, because you could have a business owner who knows about these laws, but unless they train their managers. To you know, on the existence of these laws, how to track, you know, the hours, how to avoid discrimination claims you know. They they’re gonna. Fail anyway, so you know the the best advice I could give. It is you know to be aware of these issues, you know, to have written policies, which I think is is first and foremost, but also to if you if the employer is aware of these issues, to make sure that everybody who makes decisions regarding employees such as managers are aware of these. Issues so they can actually formulate and make the proper decisions in the workplace. 

Ellen Volpe 

It’s really been great to have you because I know you for so long and your fan club would say thank you very much, Doug Rowe. 

Doug Rowe 

Thank you, Ellen. I appreciate it. Yeah. Thanks for having me. 

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Helen Keit 

This is Helen Keit the key team at Keller Williams Realty landmark here in Queens, NY City and as part of our little interview series, I want to introduce some of the professionals that we work with and recommend really experts in their field, and I think we’ll all learn something too. So today we have Donna Turetsky with us partner. At the law firm of Certilman, Balan, Adler and Hymen and I’m going to. Just read you. A little bit about Donna background. Hi Donna. 

Donna Turestsky 

Hello hi, thank you for having me. 

Thank you for being. 

Helen Keit 

Here, OK Donna concentrates her. Practice on trust and estate administration, elder law state planning, special needs, planning, and guardianships. Her clients rely. On her for estate and tax matter, she prepares wills, revocable trusts, irrevocable trusts, supplemental needs, trust cards, attorneys, health care proxies. And she really counsels seniors and their families, helping them tax planning needs. Long term care needs. Certainly Medicaid special needs planning and in the past years Don has been recognized. As the top 10. Legal Eagles recognized by Long Island Pulse magazine. And she was also selected. As one of the top women in. Walk by the center. For children, families, and law at Haft. Excuse me, Hofstra University. School of Law. So I welcome. Donna here today, and I think probably what would be helpful is if we start. Really, with an overview of. Of elder law. Planning and it’s important, certainly with the unexpected virus that’s just taken us all by surprise. I mean, you know kind of highlight any scenarios or things that you’ve noted or your clients have felt, and I’m going to turn. This over to you. 

Donna Turestsky 

Sure, so thanks Helen for having me. It’s been a really, really crazy difficult. Time for for everybody and very upsetting to get phone calls to hear about my clients that have passed away over this virus. It’s always very difficult to listen to it to begin with, but the number of phone calls that have come in over the last couple of weeks have just been really very upsetting. And I think that’s just important to note that there’s certain things that are, you know, would be. You know that that should be in place. If God forbid you know in a regular situation you end up in a hospital or you know. You need to be able to do your. Planning, so it’s not just this COVID crisis, but planning should be done. Regardless, you know in in in every situation. 

Helen Keit 

So what documents do you feel are necessary? What are the most important things down in family? 

Donna Turestsky 

Well, I mean. Well, just to go back to even this COVID crisis, the thing working out well for us is estate planning. Attorneys is that the governor? Did uh, issue an order? An executive order allowing us to be able to do our planning remotely? So that was a really really big thing. ’cause originally a lot of people were calling us and even now people are calling us because they want their wills done. They want their healthcare proxies. Done, they want their power of attorney’s done and originally there was no way to do it but to be able to actually be in a room with somebody and be able to there’s certain requirements in order to be able to witness and notarize. Things and there have been executive orders now done so that number one we can notarize remotely and #2 we can execute people wills remotely so that have just definitely changed the whole landscape of things and allowed us to do things for people that need to get done people. You know people normally what they would you know are calling me for is number one. They want their wills done. They haven’t done any planning whatsoever and they just want to make sure that something is written. Down that their assets are being left to who they. Want them to be? Left to and that there are trust set up for their children. Who you know a lot of times they have minor children and they don’t want to leave assets. You never want to leave assets to a minor child, so that’s been a really big concern of of my clients that have been calling up. And so we’ve been doing planning for them so that their wills are properly done. They’re properly executed. They have them exactly the way they need them, and they they, you know they. They feel that that that puts. Relieves a lot of stress in. Their lives I also getting a lot of phone calls regarding. Health care proxies and power return. Nice so you know people need health care proxies because if you can’t make your own healthcare decision, you want to be able to get somebody else the power to be able. To do that? And in your illness, and especially now with the situations going on in the hospitals when even loved ones can’t even go into the hospital, you want to make sure that there’s a health care proxy in place. So that the. Hospital administrators know who to turn to. If you can’t make a healthcare decision yourself. Uhm, so you know those are two extremely important. You know, that’s a very, extremely important document to have. The power of attorney as well, and you’re going to ask me about that. So, uh, power attorney is a financial document. It allows you someone else to be able to handle your financial affairs. So if you can’t do those things, you want to be able to have. Someone be able to do it for you? If not, and somebody needs to be able to access your assets and doesn’t have the authority to do that. They’ll need to. Go through a guardianship proceeding. 

Helen Keit 

And Donna what would happen if somebody doesn’t have a will or even the will process? I think a lot of people don’t understand the root. What goes on there? 

Donna Turestsky 

So if somebody does not have a will, what happens is that it’s called an administration. So when a person passes away without a will, if they have a a spouse. Yes, then what the? New York State Statute says is that everything goes. To the spouse. You still have to go through the courts. You still have to file an administration petition, and if there’s only a spouse you know you file a petition. You get an administrator appointed and the assets will go to. This spouse, what people? A lot of times don’t realize is that when you don’t. You have a will and you have a spouse and children. A lot of people, and this is before the COVID crisis even start. This is just in general. I’ve had this situation many times in my office. People don’t realize that the assets all don’t go to the spouse. ’cause what happens is when you pass away with a spouse and children. The laws of intestacy, the New York statute, says that the 1st 50,000 + 1/2 of your assets go to your spouse and the other half of the. Assets go to the. Children, So what that means is that if you know we’ve had a client, we’ve had clients come in, you know, unexpectedly, their spouse passed away. They have a minor child, the house. Was in the name of the of the. The person who passed away. And we have to explain to a spouse that the whole entire house doesn’t. She doesn’t have full ownership of it because there was no will and it was in her husband name, so that’s always been a real, you know, surprising the reason why people should do their slave state planning documents. ’cause we know that wasn’t the intent. I’m sure the intent was probably for. Spouse passed away. It goes to the other spouse. Not that it wouldn’t have to go to the spouse and the children, especially if there’s minors, because if there’s minors, then there’s other hurdles that have to be. You have to go. Through ’cause you have to do guardianships and everything. 

Helen Keit 

Now, what about trust? Donna I. I know people always have questions on that I. 

Donna Turestsky 

So alright, so I just want to go back one more about a administration when you have a will. I just want to explain the difference between. The two when? You have a. Will and what happens is you name someone as your executor and then you can go probate. We have to probate a will with the court. So somebody passes away, you need somebody is an executor. We get the we get a. You know we have to get certain waivers and consents from people and assuming nobody contests that person be appointed to the will, come to them to be an executor and that they agree the will is fine. The will will be added to probate and so you. Need to still go through a probate. Process with Wills as well. But you have appointed an executor and you’ve appointed. You know how your assets, how you want your. Assets to be. Distributed, and that’s the importance of having that kind of document. 

Helen Keit 

Does the executor necessarily get? You know there’s always that debate. If it’s a family member that do they necessarily get paid? Somebody outside would get paid as an executor, yes, now you. 

Donna Turestsky 

The executor is entitled to executors, commissions and their statutory. So the answer is that there. Are it’s? It’s in the statute and there are commissions. If it’s a family member, a lot of times they don’t take them. You know ’cause they’re income taxable, and they may be receiving everything directly themselves anyway. If it’s a non family member and they’re acting as a fiduciary, they may take them and. They’re entitled to them. 

Helen Keit 

The importance of planning. I’m sure many people got caught off guard with this all of a sudden they’re ill, right? 

Donna Turestsky 

I, I think a lot of people. Really did get caught off. Guard, and I think that this unfortunately this crisis. Put put a lot of light into, you know, doing your planning properly. What’s interesting is is that. You know, we, you know we do a lot of we do a lot of wills and there’s certain circumstances that we would recommend something called a living, trust and other otherwise known as. A revocable trust? So there’s certain circumstances that we know. We think that it’s important to have a revocable trust, but not in all circumstances, and what? A revokable trust. Is is basically a document. That’s a trust agreement that you do while you’re alive, and it’s fully revocable and you put, you know, you pretty much in your in your revocable trust state when you pass away. What happens to your assets? But during your lifetime? You could use the assets during your lifetime. You can change the revocable trust when you need to and you name your trustee so that when you fund your revocable trust. If you pass away the successor trustee. Automatically has control over your assets that. Are in the. Trust, and I think that’s a really big thing right now, because seeing what’s going on in, you know, in the world with this with this virus. Uh, I think that it sheds a new light on why people may want to decide doing revocable trusts versus wills because a revocable trust you don’t have to go through the courts if you fund your revocable trust, your assets are already. In the trust. So if you pass away your successor trustee automatically. Has control over them. And right now, what’s going on? Over the last couple of months, as the courts were closed or the courts were very limited, you had very limited capacity, so we’re having a lot of trouble getting probates through and and certain things done in order to get executors appointed with the. Bills, so I think it really sheds a new light now on maybe rethinking what kind of planning documents you may want to have and what may be more appropriate for you. Know individuals in general. 

Helen Keit 

Sure, I’m sure this is going to highlight like the new normal. The way we’ll have different aspects of our business. I mean, I can just. See planning is going to be so crucial now. Anything about I know you do special needs planning. Certainly working with families on long term care planning. That sort of. 

Donna Turestsky 

Thing so we do. We do. We do a lot of long. Term care care planning and. And special needs planning we we in our documents with the state planning. We also include supplemental needs, trust a lot of people you know have come in over the years and said, you know, I have a disabled child. I don’t want to leave anything to them because I’m afraid that they’re going to. You know, they’re gonna they have. Medicaid or their own government benefit. That’s and you know. On this talk, I’ll leave. Anything to them and they. Don’t realize that you can leave assets to a disabled individual. You can’t. You should not leave it to them individually, but you can put it into what we call a supplemental needs trust for their benefit so the trust could be used to supplement, not supplant any government benefits they might be. Receiving, and that’s been an eye opener for a lot of clients that have come in because they’ll say to me. Well, you know I’m not gonna leave anything to my son because you know he’s on. You know he’s getting. Benefits I’m. Gonna leave it all to my daughter and theirs. There’s there’s a downside to that because you don’t know if you leave it to the everything to the daughter, whether or not you know what’s going to happen to her, you know. And down the line. So I think a lot of people once they hear that they don’t have to disinherit their child, they can leave assets in a supplemental needs trust for the child benefit. I think that relieves a lot of their. Anxiety about once they once you know, once they pass that they could fund a trust for the benefit. As far as long term care planning. I mean, there’s different types of tools that we use those irrevocable trusts. In doing some kind of long term care planning, we’ll do an irrevocable trust which we may put a residence into an irrevocable trust, and you know, once a certain period of time goes by the the trust is protected and different types of techniques that we could. Is in order to plan and. Protect people assets. 

Helen Keit 

This just shows me there’s so many questions that people really have to formulate each situation I’m sure. Is different how? Often do you advise reviewing what you’ve set up? I know you said. 

Donna Turestsky 

We usually we usually recommend. Reviewing it like at least every five years, you know? I mean at least every five years because you never know if the power of attorney form you know that form hasn’t changed in a while, but you know some of the tax laws. Change your situations change. Change you know people put designations on accounts which they didn’t realize. Once you do that, if you put a beneficiary designation on an account, it doesn’t pass through your will, so it’s always good to have, like your your documents looked at every every few years in order to make sure it’s appropriate. For your type of situation, you know down the line and people lives. Change people, situations change their financial situations change their kids situations change. We’re very big, dumb, trust billion believers and trusts. So when we set up our wills or a revocable trust or any documents we have when assets are left to children, we like to use trusts in order to have the assets the assets distributed to their trusts versus it just. Distributed to them outright. So that you. Know we have a couple you know. We have somebody passed away and they leave at all their assets. Their three kids instead of the three kids getting the assets outright. And now it’s part of their own taxable states. It’s subject to their, you know, too. They could be subject to their creditors. Or if they need planning down the line themselves, it’s all subject. All those things you could put it into a trust for their benefit, which could be used for them during their lifetime, and they could be also in control of the trust along with a disinterested trustee. And it’s a good planning device for individuals to be able to protect their assets and also for them to be able to continue having their assets. You know, continuing to trust. 

Helen Keit 

This just shows me how many things we don’t all know. I think a lot of. Times people put off doing and. Well, they’re afraid to face. These situations and try and decide, you know going forward. But I mean this is necessary. Something like what’s just happened has thrown a lot of people into a situation they didn’t prepare for, right? 

Donna Turestsky 

Yeah, I mean it’s it’s I I believe. It’s always been necessary. But maybe but I. Think people do. You know, some people do. Put it off. So I have a lot of younger people say to me. You know, they put it off ’cause they. Can’t think of who. They wanted the guardian of their child. And you know, I always. Say that’s a silly reason to put off putting. Your you know. Doing your estate planning because. God forbid something happened to you know to people you know. To a husband and wife and they have a minor child. You want to make sure that. The assets that you’re. Leaving your children are left in trust for them that you get to pick who you want to be in control over that trust. You never want to have a minor child. Ever received assets outright? Because what happens is if a minor child receives assets outright. Somebody needs to go once the you know go to you know when somebody in order to get access to those funds has to file for a guardianship proceeding with the Surrogate’s court. And if they would have properly done, you know a will or vocable trust and they would have set it up so their children receive it in trust for their benefits. Then they could have chosen who they wanted as their trustee. They could have chosen how the assets would be distributed out to their kids and when they wanted their kids to receive everything. Uhm, so it’s so important for everybody. I tell people young old it doesn’t make a difference. It’s so important to make sure that you have your planning documents in place. I’m also a really like big Believer in having a solid good power of attorney. Because during your lifetime things happen, we see that now and if you have a you have assets that are in your name and you don’t have the capability to be able to. If you’re in a hospital or you’re in a situation, or you have a stroke or something you want to be able to appoint someone you trust, ’cause it’s a fiduciary responsibility, it has to be someone. For us to be able to access your accounts and be able to pay your bills and your expenses and take care of you. It it’s it’s. It’s such an important tool. Its own power attorney is only good while you’re alive. Once you pass away, it’s no longer. It’s no longer. Good, it’s it’s it’s. It’s it ceases once a person passes away. 

Helen Keit 

Donna, this is so helpful. I’m going to put down this contact information attached so you can all reach her invaluable information really, and something I’ll think about going forward. There’s so many questions and it’s become very complex, so. I can’t thank you enough. We thank you. I’m going to have this ready and. Everybody will be able to reach. 

Donna Turestsky 

Thank you Helen. Thanks for having me. 

Speaker 

Bye bye. 

 

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Hi Ed, Mikulecky from cool risk solutions. Today I’m with Donna Marie caught from Certilman Ballin. Adler and Highman, a prestigious law firm in in Long Island, New York. Donnamarie thank you for joining me. 

Donna-Marie Korth 

Thank you and it’s my pleasure. I hope everybody, that’s. In your family and listening is doing well during these difficult times. 

Edward Mackoul 

Thank you, thank goodness they are in the same. To you. Donna Marie tell. Me a little bit about what your specialty is at the firm. 

Donna-Marie Korth 

Sure, so I’ve. Been a partner. Certilman Ballin for quite. A number of years and I’m a practitioner in the Co-op condo group as well as commercial litigation and mediation. And I know today you wanted to focus a little bit more on the Co-op condo group for your clients and developers. You might be interested, so I’m more than happy to do. 

Edward Mackoul 

OK, So what would intrigue them? Because most of the people watching this will either be developers, board members or property managers or property owners. So what do you do that would interest them? 

Donna-Marie Korth 

OK, certainly. Well, I think we do an awful lot. We’re really a full service law firm. We handle all aspects of a deal or transaction that involves development and community associations from the land acquisition through the end unit Closings with ultimate purchasers just a little bit of background. About the firm. We’ve been around since 1965. And in fact, we were pioneers in the cooperative and condominium law field back when the Act was first passed in New York in 1964. In fact, we’re credited with filing the first offering plan with the Attorney General of the state of New. York, so we’ve got vast experience in the area and we represent. 

Speaker 

No, no kidding. 

Donna-Marie Korth 

Hundreds of developers and we filed thousands of offering plants. 

Edward Mackoul 

Yeah, that’s very interesting. OK, so you basically take it. From the get go you have you have. A developer who. Wants to develop a condominium. He approaches you and you handle the contract following the documents. And from there. 

Donna-Marie Korth 

Exactly we can handle as extensive as the client warrants. We can do as you said the real estate and contract work for the acquisition of the property. We have zoning attorneys who handle you know any variance needs and things like that. But, and as far as the regulatory work, which is the actual filing of an offering plan with the Department of Law or the Attorney General’s Office, we have a full department that does that and works very closely. Hands on with each developer so that they know exactly what they need to get and do, and preview and file. And then we take them through the entire filing process until. Ultimately they get. A printed book which is the offering plan that they distribute to their purchasers. And then we can also handle the Closings of the individual units. We have an extensive closing group and that’s whether it’s co-ops, condos, homeowners associations. 

Edward Mackoul 

Now I see a lot of associations now are unhappy with their governing documents and they are starting to file resolutions to change certain things, whether it be make the owners responsible for the association deductible, or just changing the way the governing documents dictate responsible. Is that difficult to do, and are you seeing more and more of that on your end? Do you agree with the fact them? Doing these resolutions, what should they just change? Or have these by alloys different when they’re filed? 

Donna-Marie Korth 

Well, that’s you know a question that really has to be analyzed on a case by case basis for each development and what their needs are. There are original documents that we prepare, a declaration and bylaws generally, and the bylaws contain rules and regulations which will govern the operation of the development. What happens is after time, sometimes a particular development realizes that they have different. Needs so we have a corporate group and in particular a not-for-profit governance sector which does help. Boards determine what they might need to do. To improve their situation in terms of governance, the governing documents often have high percentages to amend them. Often a minimum of six is 66 2/3%, so you know depending upon how material the provision is and whether it requires. And amendment were just a resolution by the board. That’s something that our governance group could look. 

Edward Mackoul 

At I was always under the impression as well that you need 2/3 of basically vote a majority to to make changes, but I keep hearing either property managers or board members who insist that they can change house rules and proprietary. Leases and add some of these clauses in without a vote from the owners or the. Shareholders, is that true? 

Donna-Marie Korth 

OK, so that really is again something that must be looked at for the particular development and their particular governing documents. In most cases, if you try and mend anything that’s deemed material, it would require the minimum vote, which would actually have to go to the unit owners or the shareholders by the requisite percentage, which is often. 66 2/3%? That house rules can generally be amended at the board level, but proprietary leases. That’s a different story. You have to be very careful with proprietary leases and declarations. They generally require the higher percentage so it really does require. I would suggest a legal counsel review of corporate governance to make sure that they’re. Handling their proposed amendments in the right fashion so they don’t get challenged down the road. 

Edward Mackoul 

OK, that makes sense. Alright, one last question. What is the current status of development? Is it at a standstill with what’s going on with COVID, or are you seeing more than ever? I mean, I’m I’m seeing a lot of people moving out of New York and and into New Jersey, Florida and other states. So what’s? The status of development at this point. 

Donna-Marie Korth 

Well, I actually have to say that we found it to be very good despite what you know the reports are saying and you can look around and see this. There’s an awful lot of construction going on, and that includes in New York City and we have developers that are moving forward with a lot of their projects in the five boroughs. And up state as you mentioned, is actually booming because there is an awful lot of people who are looking to either move or get second homes or second residences up state or even out of state. And we do handle filings in all of New York State, the metro area, out of state filings and even. International, but I think that trying times that we’re having has actually spurred on the development of projects in both the city and the outlying area. 

Edward Mackoul 

OK, very good summary. Thank you for joining. Us, I hope you. 

Donna-Marie Korth 

Thank you so he’s a pleasure. 

Edward Mackoul 

Will make healthy. Alright, thank you. 

Donna-Marie Korth 

They will yeah. 

 

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Ellie Hume 

Thank you so much for attending nonprofit resource Hubs Webinar event today called Work from home minefields for employers, and I’ll be introducing Doug Rowe here shortly, but my name is Eli Hume, and I’m the director of your part time Controller’s NYC area practice. We are a proud associate member of the nonprofit Resource Hub, which I’ll be referring to as NRH today. You might be asking well who or what is NRH? Well, we’re a trade association with a mission to serve. Be a resource to educate and communicate. Connect its members to the nonprofit community at the same time NRH serves the nonprofit sector as a bridge connecting nonprofit. Organizations to resources and to each other. Well, so you might be asking, well, what? Do we do for nonprofits? 

Our main goal is to provide nonprofits with resources to help grow their organizations. We share a directory of vetted, trusted organizations that provide quality products, services, and education to the nonprofit sector. We are continuously adding new associate members and these. Organizations go through a rigorous process to ensure their quality of service. We also host networking sessions and events just like this one to foster opportunities for collaboration both with other like minded nonprofit organizations and with leaders serving sector. We are providing information and insight into the nonprofit sector to keep you informed about. Key issues and resources that exist for your organizations and we offer expert advice and consultation to help organizations effectively further your missions. And lastly, we serve as a one stop resource hub for nonprofits providing a single access point for information. We were founded by 5-members, 5 original founding organizations that really aimed to serve the nonprofit community, and they make. These five organizations make up our Board of Directors and Cerini and Associates. Certilman Balin. Non profit sector strategies. Triumph International and Vanguard Insurance Agency. We today we’re encouraging all the nonprofits to join as non profit partners. If you aren’t already, there is no cost for you to join and plenty of benefits. 

Once you join, you can start enjoying these benefits as well as your logo and your mission will be posted on our website. With a link to your site, you’ll be able to add calendars, add events to our calendar so that you can circulate your information amongst the membership base. And we’ll also have lots of information. We circulate articles and helpful items posted on our website all the time. And lastly, before we get to Doug, I just want to thank all of our associate members who are part of the organization and help us do the great work that we are doing. P&P Staffing Premier payroll solutions. Powered by professionals. 5 star advertising Morgan Stanley Sterling Risk insurance. Lee, Nolan and Corrigall Correlated LLC Certilam Ballin Adler and Heiman LLP and your part time controller. So and now let’s get on with the program. I’d like to introduce Doug, a partner with Certilman Ballin in their labor and employment group. His broad range of experience includes claims alleging discrimination based upon race, sex, religion, national origin. Age and disability, as well as sexual harassment. Wage and hours issues. Labor, arbitrations and defense of employment related claims under federal and state statutes. So there’s Doug. Feel free to share whatever else you’d like about yourself, but take it away from here. 

Doug Rowe 

Sure, thank you Ellie and welcome everyone. Uhm, so all employers are obviously aware of employment laws, so they have to pay attention to wage and hour laws pay their employees properly. They have to pay attention to. Through the the the laws that protect employees because of a disability under the Americans with Disabilities Disabilities Act or state law. They have to ensure that their employees are not discriminated against. They have to ensure that their employees are are protected in the workplace from a safe from a health and safety standpoint. And they have to protect their own trade secrets and their own their own. Proprietary information The workplace has now changed, so whereby the the workplace used to be in offices. Now it’s also at home. The workplace is substantially different now than it was a year ago, so there are unique aspects to compliance with. All these employment laws because of the employees working from home. I’ll start with. Wage and hour issues. You know when and when an employee works in the office, they could punch a time clock. They could sign in on their computer. There are. They have a schedule they have pre pre planned break periods, meal periods etc. They have a start. Time they have finished time. The office opens the office closed and that’s it. But when employees work from home. Employees could have a tendency to work when they want. When they need, uh, they take, they could take longer breaks. They have to take care of the kids. They can run out to do an errand during the middle of the week. Weekday, as long as they as they feel they can get their work done at night or on weekends. So that’s fraught with problems for the employer because. Under those circumstances, there’s no way for the employer to properly keep track of the employees. And why is that important? Well, first of all, they have a legal obligation to track all employees work time, and they also have a legal obligation to pay for all employees work time. And they also have an obligation to pay for employees work time at time and 1/2 if there are hours. If the if the. Non exempt employees hours exceed 40 during a week so you could see the problems that could arise from permitting employees to work when, if and when they want during the course of the day, so. From a from a policy standpoint and a practice standpoint, it’s important for employers to track the employees time. It’s also important for employers to. Give the employee a schedule. Uh, not. It could be a 9 to 5 schedule. It could be with breaks and think about, you know. Also ensuring that employees take a mandatory meal period in New York, for example, every employer is required to give their employee. These at least 1/2 hour meal period every day. So that has to be tracked as well. Or the employer can be faced with a claim for failure to provide a meal period. And by the way, when you deal with with employees, these claims could be not insubstantial. Depending on how many employees. There are, we’ve. Handled cases which result in, you know, class action liability for, you know. Failure to provide, you know the proper overtime or build periods or break periods etc. So those are some of the issues that could come up. Establish boundaries for for employees. UM, the employer should. And by the way, when we talk about, you know tracking time and and and establishing boundaries you know. First of all, it’s important for the employer. To train supervisors to make sure that the employees are in compliance with the laws and that they’re following the company policy, the employer should also have a written policy, a written work from home policy, which sets out you know all these these legal obligations to you. Know track the time. It’s it’s also a best practice because of these issues and because employers can find themselves in a situation where employees. Maybe, and by the way, you know, let’s remember that what constitutes work time is one thing, but employers can be faced with a situation where while an employee. Worked during their regular work hours during the day. The employee may want to start responding to emails or preparing emails at night or on weekends. Well, all that is compensable time for a non exempt employee. So the the employer is is. You know is reminded to you know when I talk about establishing boundaries, you know, instruct the employee you know not to respond to emails or not to prepare emails at night. Unless there’s emergency situations that that could be laid out, and it has to be the. Exception not the. Rule again, this is what’s necessary in order to. Protect the employer from potential wage and hour liability. How about this? For an interesting issue, and I I assume that most employers don’t really consider it. When employees work in the office. Employers usually have an expense reimbursement. UM policy and if an employee incurs an expense on behalf of the employer. The employee is entitled to be reimbursed for it. Well, just like the the the the, the workplace. If you have working from home, if an employee buys paper, arguably they’re entitled to be reimbursed for that paper. There’s actually a law in California entitling. Employees to be reimbursed for a portion of their home phone or cell phone when they’re working from home that hasn’t. Hit in New York or you know, I I haven’t done a survey of other states, but it’s an issue and and one of the reasons why. It’s also an issue aside from the logical aspect of it is that if you have a minimum wage employee who starts spending. Incurring expenses on behalf of the employer. And the employer doesn’t reimburse the employee for these expenses. The employer could find itself facing a minimum wage violation because the expense can the expense incurred by the employee can result in the employee actually earning less than the minimum wage. For for a particular week where they’re spending money on behalf of the employer, so again, it’s something to consider. It’s something that should be made a part of the employers. Uhm, work from home policy. Expense reimbursement. In the workplace. If you have a, if you’re in a, if you’re in an office setting, we all know that there are employment posters hanging up, and there are annual poster requirements probably hanging up in the cafeteria or or or somewhere else in the office. Well, if an employee is working from home. Is also actually an obligate. Action by employers to make sure that their employees are receiving the posters and receiving notices or annual notices that are required by either the federal or state laws. So there actually is. There have been recent guidelines issued by the Department of Labor. Recent guidance which which holds that electronic notice is permitted if employees customarily receive information by electronic means. Means and have readily available access, so again, you know as a reminder it’s an obligation in the office setting. It’s also an obligate. Posters are also an obligation from the work from home setting. There’s a also. There’s also a law that’s that’s the part. It’s actually a Department of Labor regulation. Which talks about the continuous work. Day and the continuous work day is runs from the time the employee starts to work and goes to the time that the employee finishes work. And the employee has to be paid for that time. But there’s also an exception where the employee is. Not entitled to be compensated for commuting time. So there’s been a recent relaxation of the continuous work rule, and I’ll give you it by way of example. So if an employee starts to work from home in the morning at 9:00 o’clock, spends 9 to 12 working from home, and then at noon decides to drive in. To the office and spends an hour to commute. Well that commuting time. Is not comment compensable even though the employee started work that morning. And that’s because the of the Department of Labor’s relaxation of the continuous work rules. So just bear in mind that that’s also an issue as far as what constitutes compensable. Work time. It’s actually viewed as a gift for employers, because again, this isn’t the exception to the continuous work rule. The the biggest you know, the biggest take away from the work from home issues in in, in the in, the wage and hour world is. Again, have the written policy. Remember to track the employees time train supervisors to beevi. If employees need to work at night or on weekends, make sure it’s the exception, not the rule, and make sure that time is tracked. And make sure that time is compensated. Remember that these you know warnings for the most part deal with non exempt employees. Hourly employees. The rules are. Are are are different for exempt employees such as managers or administrative employees or professional employees, but it’s just something to be aware of, and again, it’s important to be vigilant on the wage and hour work from home side. Uhm, one of the big issues we’ve seen. I’m I’m gonna now move onto accommodation claims. Uhm, employees. Could be entitled to work from home. If they request, uh, if they’re requesting it as a reasonable accommodation to a disability, oh or or to a uh for a religious accommodation, so. Work from home is not automatically an entitlement to me. Boise if an employee has a true disability and working from home is a reasonable accommodation under the circumstances, then typically it will have to be granted the analysis that has to be undertaken by the employer is the request for a reasonable accommodation is made. The employer is then obligated to engage in the interactive process with the employee to determine whether the employee can perform all of the essential functions of that employee’s job while working from home. If the answer is yes. Yes, and the employee has a disability then typically that that that request will have to be granted. If the employee cannot perform all the essential functions of the job, that doesn’t necessarily mean that the request has to be denied. There could be there may have. To be as part of the interactive process. As a discussion about whether the the functions that can’t be performed by that employee at home can be performed can be reassigned to another employee and performed by another employee on a temporary basis, so you know it’s it’s really the the interactive process. Is really unique because it’s really a function of whether the essential functions of the job can be done with a reasonable accommodation and working from home is not always the only answer. Also, with respect to working from home, the employer has to make sure that the employee is properly equipped to perform the essential functions of the job. So does the employee have a computer at home? Do they have a printer at home? Do they have the necessary? You know office supplies to perform their their duties from home, so that is something that has to be addressed as well. And and by the way, that’s also part of the interactive process because. You know, if if the employee doesn’t have any of these items, is the employer required to provide these items? Does the employer then have to run out and buy a computer and buy a printer for that employee so that the employee can perform the essential functions of the job? The answer is maybe the answer is maybe because. Because if that expense, if that cost to purchase that equipment, doesn’t create an undue hardship to the employer, then the employee or the employer may have to go out and purchase that that equipment and and those supplies. And again, what constitutes an undue hardship. I mean, it is a cost. Analysis, But it’s also a cost analysis based upon, you know, the the revenue of the employer. Can the employer afford to buy this equipment and and would it create an undue hardship? So that’s the analysis. When we get into a work from home issues. As I mentioned before, there has to be a true disability in order to have in order for the employer to have to engage in the interactive process. So if the employee comes to you and says, you know I am fearful of of contracting COVID-19 in the workplace because. Somebody else, uhm, you know, tested positive. You know general fears or anxiety about contracting COVID is is not a is not viewed as as a disability so again there has to be a true disability in order to for the employee to be entitled to the working from home. As a as a reasonable accommodation. So that’s what goes into the analysis of the work from home requests by employees. By the way, does anyone have if anyone has a question they can post it on on on the chat? I’m I’m happy to. 

Ellie Hume 

Now there is one question here. It’s in the it’s in the Q&A section it says is there a recommended amount of reimbursement for use of the personal cell phone? 

Doug Rowe 

Uh, so. It it it the all I could say about that is in California. It’s a prorated portion of their cell phone. I don’t know what that means and and I haven’t seen any cases that analyze what constitutes a prorated portion. I mean, if the employee says I use my phone 50% for business and 50%. For personal, I don’t know how the employer they have the employee have the how the employer can really. Evaluate that other than asking for, you know a copy of their cell phone bills and analyzing. You know who the calls were. Made to or from, so I think it’s just going to have to be, you know, just just a gut feeling and a fairness analysis. You know, I think what what? You know, if it’s if it’s reasonable, you know the employer may just have to go with whatever the employee says. But you know other other than that there is no, you know, prorate or what does that. What does that mean? You know, I, I did want to I I I, I I skipped over one other take away on the wage and hour side which which I think is important and you know because of the issue of tracking the employees time. It’s probably the uh, best practice for employers to have the employees. And off on their work time on a daily basis, it’s it seems like an easy thing to do. There should be an indication by the employee when they started when they took their meal meal, period when they ended for the day and if there was any extra work done that should be. Uhm, you know that should be indicated by the employee as well, and that way you know if there’s any potential. You know unpaid wage. Claim down the road. At least the employee. The employer at that point, has you know sufficient documentation to. To refute any claim by the employee, so you know that’s best practice as best practice and you know you know best. The best advice for employers to follow as well. Regarding discrimination cases, discrimination law so. First of all, you know what one of the first issues that arose out of the pandemic was for employers to be to be aware of disparate treatment of the vulnerable population so. Uh, actually at at around the time the the pandemic hit the Equal Employment Opportunity Commission came out with guidance on this issue. So for example, if an employee is, if if an employer has a 70 year old employee. It’s actually discrimination for that employer too. Require that employee to work from home because the employer is concerned that based upon the employees age that they’re more vulnerable to becoming sick in the workplace or becoming sick from COVID-19. So that’s actually discrimination. Same with, for example, a pregnant employee, while while an employer may think that the employer is doing the right thing by requiring the A pregnant employee to work from home to avoid any issues from a commuting standpoint or or office setting standpoint. That’s actually discrimination. It’s not up to the employer to decide what’s in the best interest of the employee. It’s actually up to the employee to make that decision. If the employee under those examples want to continue to work. From from the office understanding those risks, then they’re going to be entitled to do that. So just beware. Beware of potential discrimination claims against the vulnerable population. Uhm, deciding who to permit to work from home is another issue because this has created discrimination. A claims. You know employees may view it as discrimination if the employer permits an employee to work from home and denies the right for another employee to work from home so those decisions can give rise to claims for age, discrimination or race. Discrimination or sex discrimination or national origin, discrimination or disability discrimination? Another thing to keep in mind if you’re making decisions and you’re permitting some employees to work from home and and denying that right to other employees. Make sure that those decisions are. Are made uh based upon business justification not based upon their their particular class or their particular situation. It it it’s it’s. It’s also important as part of the work from home policy to remind employees that the employer’s anti harassment policies still apply to working from home. So employers have to remind employees not to harass. Each other, you know other employees through e-mail through texting through phone calls the the the anti harassment laws you know still apply the workplace that is still the the workplace, whether they’re working from the office or at home for anti. Harassment purposes. The next issue, which which we’ve come across in in the work in the work from home world, is that because the home is the workplace, employers have an obligation to keep the workplace safe. What does that mean? Well, you know there’s an old the the Occupational Safety and Health Administration, OSHA. You know, has. This general duty clause, which requires employers to provide a safe workplace for all employees. That’s pretty basic, and most employers would assume that the workplace. Is is is safe? You know the the home workplace is safe, but beware because if that employee if an employee is. Working from home. Trips on the way to the bathroom. That’s going to be a workers comp claim if that employee develops some some you know illness while working from home. That’s a workers that could be a workers comp claim. Uhm, so again beware. And by the way, you know we’ve had. We’ve seen situations where you know, diligent employers will act. Actually, you know require the employees to take a video of the workplace and then whereby the employer can. Then you know actually view the workplace to see if there are any safety hazards that could potentially create liability. Obviously wires across the middle of the room could create a, you know, a a fall hazard. And a potential injury situation. So again, you know diligent employers, will you know. Uh, remember to you know, again to just bear in mind that the home workplace is the workplace for safety and health purposes and for workers comp purposes. Uhm, Speaking of working from home also, this is important from the the the potential liability standpoint, aside from the workers comp issue, employers want to make sure that their insurance coverage covers work from home. So not just. From the workers comp side, but from a general liability side. So if in a for example an employee is working from home and has a visitor a work related visitor. Come to the home and that work related visitor is injured at the home is that is that injury going to be covered by the employers general liability policy? It’s important for the employers and believe me when I tell you that there are numerous exceptions. To the general liability policies and insurance companies will do everything in their power to try to have a claim excluded if they can. So again, it’s important when you when employees work from home that the employers also consult with their insurance. It’s brokers to make sure they have sufficient and proper coverage to protect themselves against all claims. The next aspect of working from home is cyber security and protection of trade secrets. So Needless to say, when an employee works from home. When employee employees work from home, they have remote access. They have the ability to. Uh, connect to the employers server. It’s harder for employers to control. There could be a greater likelihood of of data breaches, so you know in in in employers are reminded to make sure that. Their their IT infrastructure is set up so that their their their trade secrets are protected and they can protect their, you know proprietary information as much as possible with employees who work from home. Also, regarding that is that employees when they work from home may have a tendency to use personal emails for business purposes and use and use zoom calls also for business and personal purposes. So just the the. The employer should bear in mind that that’s an issue that should be recognized and potentially perhaps dealt with. You know, in the work from home policies, depending on the. 

Speaker 

Nature of the business. 

Doug Rowe 

Again, it’s important to make the these issues these security, these IT security issues as part of the work from home policy to have sufficient protocols to protect the employer. Social media policies. Most employers that have employee handbooks will have a social media policy. It’s important also to expand the social media pool. See to potentially include work from home issues regarding social media policies. Employers are reminded that they can’t prohibit their employees from discussing the terms and conditions of their employment on social media as that. Would be deemed to be a violation of the National Labor Relations Act, but it is important to have a social media policy as well. As part of the work from home policy. Uhm, the last issue. I’m going to cover on the, UM, the the potential minefields for employers are. How does an employer? Track the employees productivity. We talked before about tracking time, but what about productivity? So there is there is software that’s available to employers enabling the employer to actually go onto the employee’s computer while the employees. On that computer and actually see what that employee is doing. It’s a good idea. Uh, I would recommend it. If the employee wants to ensure that their employers that that their employees are doing the work they’re supposed to be doing. But it’s also important to advise the employers. To understand that there are no privacy rights that that that it’s not, it would not constitute an invasion, an invasion of privacy. If the employer did choose to monitor the employees work during the course of the. Day employees. Employers should be mindful that they have to be careful not to monitor the employees work. If the employee is on their personal e-mail or performing. Performing personal matters in non work. Uh, in in non working time. So it’s it’s important to be aware of that issue. We’ve had employers that have actually set up. A little cameras in front of the employee’s computer monitor so the employer can actually see what the employee is doing and working on at any given time, again as part of the monitoring productivity and communications, it’s important again. To have the written policy to remind employees that the employer has the right to. To monitor their work, and we’ll do so. It’s also possibly important, aside from having this work from home policy to revise employee handbooks to include that issue, as well as all these other issues. And again, as I mentioned in the work from in, the work in the wage and hour world, it’s important to train supervisors. To to understand their rights and ability to monitor the employees productivity productivity during the work day. That’s what I have on the work from home issues, the minefields for employers at this point. Are there any questions? And when I say that I’m actually going to move into, this is a bonus round for all the participants here today because I’m going to talk about one of the hot issues and employment. Well, which is vaccines in the workplace. But before I get to that, does anyone have any questions about minefields for employers? On work from home. Yes, so there was a question as to whether you need to let the employees know that you are monitoring them. It’s it’s a best practice. But the answer really is a function of what the particular state law requires. So in New York, for example, there is no expectation of privacy there is. There would be no right. A for an employee to claim an invasion of privacy if the employee was not informed that the employer would be monitoring their work, but nevertheless nevertheless it’s advisable to notify the employees some some states. A do require that notice be given. I, I believe California is one of those states. Next topic, as I said, I am going to mention UM because again, this is an important issue is vaccines in the workplace. 

Ellie Hume 

Real quick before we jump to that in the in the Q&A spot that’s beside the chat, there’s one more question here. What if they use their own computer? Or can you still monitor them? Yes. 

Doug Rowe 

Yes, because they’re using their own computer, but on company business. So the answer is yes, but again, do it with a proper notice and notifying employees that you will you will you have that right and. You intend to do so. 

Ellie Hume 

Thank you. 

Doug Rowe 

And by the way, some employers will actually not only monitor but but. Install software with. Which shows how many letters were sent out and whether that was the same amount of letters that were sent out when the employee was actually working in the office. So there are there’s software out there which actually enables the employer to not only monitor, but you know actually. See what they’re doing at any given time. But evaluate the the productivity on a on a quantity basis as well, so that’s that that exists. That’s that’s out there. Vaccines in the workplace. Companies may have the legal right to mandate that employees get vaccinated for COVID-19 according to the December 16th, 2020 guidance issued by the US Equal Employment Opportunity Commission now. Why did the the EEOC say that employers could require employees their employees to become vaccinated? Well, it’s because vaccines are not considered to be a medical exam under the Americans with Disabilities Act’s disabilities. Under the Americans with Disability Act, employees cannot require their employees to have medical exams. But vaccines are not a medical exam, so that’s why they’ve permitted that. But employers should be cautious because any pre screening questions. About a disability could be deemed to be a medical exam and could violate the Americans with Disability Act. The Disabilities Act. So the actual requirement for the vaccine is not a medical exam. Potentially pre screening questions about a potential disability would violate the Americans with Disabilities Act. But the EEOC also said that even though employers are permitted to require of vaccines, they the employees can request an accommodation under the Americans with Disabilities Act. So if the employee He has an objection to taking the vaccine because of a disability. The employer again has to engage in the interactive process with the employee to determine you know what the disability is, whether the weather, uh, a refusal of of the. Whether not requiring the employee to to have the vaccine is a reasonable accommodation under the. Answers and you know potentially under that scenario permitting the employee to work from home instead of working from the office may deem to be a reasonable accommodation in order to accommodate the employees request that they not be required to to take. Uhm, there’s also an exception for accommodation under Title 7 for sincerely held religious beliefs, and the EEOC has actually said that if there is a stated sincerely held religious. Belief by an employee for not wanting to take the vaccine. The employer should. Assume that. Religious belief is sincerely held, but that’s but the employer is not prohibited from actually questioning the employee and determining whether there is a true objective basis for that sincerely held religious belief, so again, that’s another exception. Uhm, now. Now we know that employers can require their employees to to take a vaccine, and it doesn’t violate the discrimination laws. According to the US Equal Employment Opportunity Commission. But should the employers require it? You know there may be other. There may be if if the employer has a belief that this is the best way to protect their their employees and their business. Uh, then? Maybe they should. Uhm, if there are other options to the employer, such as permitting employees who may object to this for to to take unpaid leave during some period of time, that’s an option to employers. There are practical considerations also where an employer may require an employee to to take the vaccine, which is if employees refuse to take the vaccine. I mean. What do you do with them? Do you fire them? Do you fire them in mass? We’ve had a situation with a uh nursing home recently where the nurses were actually refusing to take the vaccine. The employer didn’t have the ability to terminate all the nurses, so they just walked away from the the requirement. It’s it’s out there, it’s an issue. There are practical considerations that the employer should take into account in evaluating whether to require it. The interesting one of the interesting issues also about requiring employers or requiring employees to take the vaccine is that the vaccines that have now been approved are actually were actually approved under the FDA’s emergency. Use authorization. And under the FDA emergency use authorization employee, anybody who administers the vaccine is required to give a fact sheet to the employee to to the to the to the employee who’s receiving the vaccine and the fact sheet. Actually says that the employee can refuse to take the vaccine. So now you have the EEOC on one hand saying that. The employers can require. It, on the other hand, you have this FDA fact sheet that says the employee can refuse. What would the courts decide? Under those circumstances, if an employee refused to take the vaccine or was then terminated. I don’t know this is this issue is a legal issue. It’s in its infancy. I haven’t seen any cases that have any court decisions that have addressed this issue. But it’s out there for the employer to consider if they want to implement a A vaccine policy. Uhm, there are obviously potentially employee morale issues by employer requiring the employees to be vaccinated. Employees may be upset with it. Employees may not agree with it. They may not believe in it and it may affect employee morale. There are potential workers comp issues. Uhm, if an employee. Contracts COVID-19 and they believe they did so in the workplace and they believe that if the employer. Had promulgated a vaccine requirement in the workplace. They would not have. Uh, developed COVID-19. There’s a potential workers compensation claim under those circumstances with respect to the workers comp world in in COVID-19, there’s always an issue as to whether the employee can prove a causal connection to contracting COVID-19. Uh, in the workplace you know, why didn’t the employee get it on the subway or the bus? Or you know at the gas station or a restaurant, so there’s you always have that issue, but there is a potential workers comp claim. Also, there’s a potential workers comp claim if an employee has an adverse reaction to a vaccine. If the vaccine is required by the employer. So again, that’s another issue that’s out there for employers to consider. Uhm, with respect to Union employer. Uh, if it if an employer decides to. Establish a vaccine policy. Are they required to negotiate that policy with with the Union UM, if they implement a policy and they haven’t negotiated with the Union and an employee is terminated for not for refusing to be? Vaccinating vaccinated, would that constitute just? ’cause under the collective bargaining agreement again, I don’t know. There’s an argument to be made there. We haven’t seen any cases or arbitration decisions on the issue yet, but again, that’s out there as a potential issue when it comes to employers considering requiring vaccinations in the workplace. You know, we’ve we’ve seen the employers that have established vaccination policies. Some are offering financial incentives. You know, could be. Pay additional pay. It could be additional time off for taking the vaccine. Uhm, there are we. We’ve seen software. We’ve seen HR software solutions that employers now have available to them to track employee vaccinate. Uhm, but one of the another practical issue with respect to requiring vaccinations is that the slow rollouts are actually complicating mandatory vaccinations in the workplace anyway, so you know it. It’s it’s not as if every employee. Can receive the vaccination. You know, at the same time or immediately the rollout is going to take place over time, and it’s going to be obviously everybody reads the newspapers. It’s going to be several month. It’s until you know all employees who can be vaccinated will be vaccinated. 

Darren 

Thank you and thank you, Doug. That was extremely informative, Doug, like always. I’ve known Doug for 25 years, just disturbing it, in fact, is disturbing in itself, but it’s hard to find someone. Uh, is it was such a good person and so you know so knowledgeable about areas of the law that he covers so. very hard to meet a more genuine person, so if you have questions and follow up, he’s always open to helping. I know I’ve sent people many people his way and he’s always open to helping. So if you have questions, please reach out. Thanks again, Doug. Few time today. 

Doug Rowe 

Thanks Darren. 

Darren 

I’m I’m Darren port on the an associate member of the organization. At like Dog and Al. And I’m I’m the CEO of powered by professionals. We’re a fund raising and event management firm here in New York City, where a national organization based in New York City and we’ve helped start 14 organizations from scratch over the last close to 20 years and have raised over $140 million for different nonprofits. We were. We work exclusivly with. Nonprofits and and help our charity partners with their fund raising event strategies. We’ve taken them all virtual and hybrid over the last 12 months and are always open to talking to anyone who’s part of the nonprofit resource hub in helping you kind of navigate this complicated world. We’re living in so don’t hesitate to reach out I will. I’m actually going to post in here in the chat. I’m just adding my information. If you have any questions, always happy to do a free consultation with anyone who’s part of the the resource hub. 

Speaker 4 

Uhm, I will. 

Darren 

Say I did want to inform everyone there’s. A great event coming up. 

Speaker 4 

For the non profit resource hub on February 18th from 4:30 to 6:00 PM, it’s a non profit meet. 

Darren 

Great, so this should be a great opportunity to network within the industry and meet some of the associate and board members of the organization. You can sign up directly from the website, or I think they’re. Going to post it in the chat. Yeah, here it is so you can. Just register right from that link. I want to thank you all for attending the webinar. We’ll be sending out a survey to everyone. We’d ask if you would please fill that out. ’cause that helps us as we we create these programs, we have these programs going on. Usually I think twice a month, so there are different topics. I know I spoke back in the fall, but they’re continually trying to cover all the different things that your nonprofit may need assistance with. So again, please visit the nonprofit resourcehub.org and For more information, becoming a nonprofit partner, have a great day everyone and please stay well. Thanks again Doug and Ellie and everyone for participating. 

Doug Rowe 

Take care. 

 

Play Video

Alrighty, good afternoon everyone. My name is Allison, lawfully to I’m the executive director of the nonprofit Resource Hub. I’d like to welcome all of you to part one of our two-part Webinar series, navigating the new workplace. Everything you need to know from an HR and legal perspective. We’d like to thank the Enourage board of directors and associate members for their continuous contributions towards achieving our mission. I would like to introduce our speakers today and NRH associate members. We have Doug Rau, employment law partner for Sir Tilman Baumann, Joe Krumholz, managing partner at Real HR Solutions, and Susan Krieger, CEO, also from Real HR Solutions. Thank you all for joining us and we would like to start our webinar. 

Doug Rowe 

Sure, thank you Allison. Welcome everyone. So the title of of this discussion is navigating the new workplace and. Needless to say, the new workplace is affected by the news every day and this pending legislation this old legislation. There’s future legislation, and as always from a legal standpoint. Compliance is key compliance with all these laws keeping up to date on on the changes, ’cause they are literally changing more rapidly than we’ve that we’ve ever seen in in in history. Generally speaking, though, let’s let’s just introduce what we see as the new workplace over. Currently in the immediate future and over the next several. Years so, Needless to say, we expect, and we’re already seeing it that more employees are going to be working from home. How is this going to affect the workplace? It’s going to require HR departments to ensure compliance with all the laws to ensure that they’re getting the productivity from the employees. But also bigger picture is you know what the physical new workplace will look like. RR is office space going to be shrinking is office space going to be changed to have some employees work in certain office where the the employees need to be quiet and other locations where the employees need to? Work together in in Group meetings so. That’s you know that’s going to be an interesting change in in the workplace. Uh, we came across the fact that Facebook, Needless to say, most of the companies out there are not Facebook but Facebook recently advertised for the the position of director of remote work. Uh, they they have half their staff is working remotely, but it just shows the importance of having of being on top of it, being on top of the compliance and being on top of all the related issues because, again, remote work is sort of. It’s it’s sort of a completely new area of of. HR and and the law. Because of the pandemic, we expect companies to invest heavily in hygiene and safety and health. That’s going to be a focused issue. We’ve all seen that from a generally speaking, but I think companies are going to be paying more attention. To their health insurance policies and perhaps. The mental health aspect of their employees, safety and health and also and any insurance health insurance related issues relating to that as well. That’s that’s that’s going to be changing pretty rapidly, so we’re going to say something soon. 

Susan Kreeger 

Yeah Doug, I I was just gonna add. That you know from what you’re describing, as well as from what we’re seeing, it’s almost like everything has been thrown up in the air in terms of the workplace in terms of HR. In terms of laws, I mean we do still have a core of things going on that we can rely on, but. 

Doug Rowe 

Right? 

Susan Kreeger 

The way that. I think the employee is experiencing that the employer. It feels like everything is shifting, whether it affects remote, whether it affects on site, whether it affects health and safety, and it’s it’s really an upper. It’s it’s a challenge, no question. It’s a challenge to figure it out, but it’s also an opportunity to figure out. Maybe there are things that we can do differently in a way that long term works better and that I think that long term question is also something that we’re. We’re all thinking about. Is this something that? Is it still related to a health crisis or is this something that we put in place long term so just to to say we’re seeing all of that and that ties into what you’re you’re saying as well? 

Doug Rowe 

Right? Yeah, I mean it it. It feels like we’re in the midst of a revolution because like you know, think about it was only a couple of years ago when diversity and inclusion was the number one issue in in the HR world because of Black lives, matters and and what we were going through then obviously it’s taken a sort of a. Backseat to the pandemic obviously, and all the related. Issues, but it’s still. A major issue for, for for HR and it still remains, you know, a heightened issue and it’s going to have to be addressed. You know it’s going to continue to have to be addressed over the next several years. 

Susan Kreeger 

Absolutely, and that’s even part of managing the remote workforce. The signal up there, so nothing, nothing is untouched. 

Doug Rowe 

Right? 

Susan Kreeger 

Yes, exactly, and I think also yes, that’s right. 

Doug Rowe 

Yeah, and Speaking of nothing being untouched, you know obviously all the changes that are occurring in the workplace from a technology standpoint is is obviously going to continue, whether it’s related to the pandemic, whether it’s. Related to tracking employees, time or productivity etc. The technology is, you know, just out there and it’s going to enable you know HR to better, you know, be involved in, you know, operating the company you know their their company and playing their role within the company. 

Jill Krumholz 

And I think. To frame this a little bit, you know this intersection of all these things is really what has created such an upheaval unto themselves, right? There are challenges whether it’s legal, whether it’s the the application of these things. Whether it’s about retention and diversity, equity inclusion, you know? There are the. Overlying, and Doug will start to talk about the laws, but there are overarching compliance issues. And then there are very practical issues around implicate implications. In the workplace and retention and and all of those things and remote work and people working across the country and so forth so. Right? 

Doug Rowe 

So, so again, we’ve all said the words compliance so far, and you know, I’ll I’ll segue into. Uhm, you know a. A recent, uh, new law in New York called the New York Hero Act. The New York Hero Act, by the way that it’s called the New York Health and Essential Rights Act, also known as the Hero Act and basically in the last few months. New York State essentially legislated the CDC guidelines that we were all dealing with a year ago, so and they did it through a requirement of every employer in New York State to have a written prevention plan, it’s. It’s it’s an infectious disease. Airborne infectious disease prevention plan. The prevention plan is available on the New York State Department of Labor website. It’s mandatory that the plan be prepared. Distributed to the employees posted in the workplace. Implemented and and that was all required to be done by September 6th. I think it was when the Governor of New York State announced that COVID-19 was designated as a highly contagious communicable disease that presents. Serious risk of harm to the public. Safety under New York State law and and by the way, the the Hero Act so it is now triggered for COVID-19. But that law is now on the books, and if we get past COVID-19 and hopefully we will soon, this law will still be around in. The future if and when another you know pandemic you know hits New York State. And by the way, it’s only a matter of time. We see four where other states follow suit. Because this. Is sort of a a a a law that seems to make sense of. Of course every employer has, as of its paramount, important paramount concerns. The safety and health. Of their of their employees and protecting the workplace. So you know this is a law that. That makes sense and. You know, so at this point, now. With that said, the Department of Labor has. Posted the templates for the New York Hero Act and they’ve done it for certain industries, so there’s a separate template for agriculture, construction, delivery services, domestic workers, emergency response, food service, manufacturing, personal services. Private education, private transportation and retail. And if there are companies that are not do not fall within these industries, then the general template for you know other industries can be used. 

Susan Kreeger 

Uhm, and then just. I I can jump into on a sort of a practical side with most of our clients and and we work. At least with the so our core clients on the smaller side. In in terms of employees, so most of our clients have just gone to the website, use the model plan for office. Come for an office workplace and pretty much word for word filled in what needed to be filled in for your workplace. And it’s really quite a simple process if you haven’t done it yet, do it right away. Go to the New York State Department of Labor website, get the model plan. And complete it. According to what works in your in your workplace, there’s there’s some things you need to know. If you decide you want to do an alternate plan, but using the model plan is is simple, straightforward, and that’s what we have been working with our clients on and advising. And another piece of that is doing what’s called at. At this point, the plans are activated, which means you have to be putting it into practice, so doing what? Ummh is referred to as a verbal review as well as a training component to it, so making sure that. Everybody knows what the plan is, and it’s been circulated. It’s been posted and you have reviewed all aspects of the plan to make sure they’re up to date. And make sure everybody has a copy of the plan. You know very, very basic rollout, but you just need to make sure that you’re following those steps as as an employer. 

Jill Krumholz 

And I’m sure as Doug will speak about, there are penalties for not doing this, and they become more severe. If in fact you have a plan and you’re not implementing it. It at all. 

Doug Rowe 

Yes, so the Department of Labor may investigate violations of the Hero Act and impose penalties of $50.00 or more per day for the failure to adopt A prevention plan as well as 1000 to 10,000 for failure to. Abide by an adopted prevention plan so the penalties are there is also the the legislature has also indicated that it entitles an employee to pursue a private right of action for damages. We don’t know what those damages are yet. Again, one thing about the. The Department of Labor, fines and penalties. It’s another thing about a potential lawsuit. Can an employee claim? That they suffered from emotional distress because the prevention plan wasn’t in effect. You know, we haven’t seen a case on it yet, obviously. But you know, uh, an employee can can bring that claim. So it’s out there. And and by the way, I mean every employer in New York State. As I said, has to have this law. It doesn’t matter. How many employees they have if they have one employee, they need the prevention plan. Uhm, the likelihood is that there’s not going to be a random audit from the Department of Labor to see. You know, if a smaller company you know has the plan or. Not, but what what? The more likely scenario is that an employee if an employee feels that you know there are safety and health violations in the workplace, they can merely blow the whistle anonymously to any agency in in the state, obviously. Obviously, the Department of Labor is overseeing this law, but in New York City, for example, the mayor has essentially. Ummh indicated that every city agency is entitled to. To enforce these laws which which would include the Hero Act, so you could get a visit from the Department of Buildings, the Department of Health, the Department of Labor, you know, any agency can come in and investigate and ask the employer to see a copy of their prevention plan so. It’s important to have. 

So one of. 

Jill Krumholz 

The sorry one of the questions is. In terms of. Location right so this is New York based, but you have. You know you may have employees that are working in other locations. They may. You know it’s New York based, but they may live in New Jersey and they. May live elsewhere so. How does that impact them? 

Doug Rowe 

So it’s it’s where the employee is located, and by the way, with that said, it’s where it’s where the employees are located. But if the employees are working remotely from their home. Home there’s not an obligation to be in compliance with the New York Hero Act unless the employer controls that workplace. 

Right? 

Doug Rowe 

That would be the rare exception, not the rule, but so the New York Hero Act wouldn’t wouldn’t wouldn’t apply to to that to the to the remote works scenario. There’s a as part of the Hero Act, also for employers with more than 10 employees. As of November 1st. Employers have to permit their employees to form a labor and employer Labor Safety Committee, which is which would be comprised of. Both employers and employees, I think no more than 1/3 can be supervisory employees of the employer about that Safety Committee has to be permitted to meet I. I think on a quarterly basis in in the employers workplace. On the employer’s time. And you know that has to be complied with as well, so again, that’s. Part of the compliance requirements, yes. 

Susan Kreeger 

Did come in connection with that Doug. I know we’re still waiting on some guidance on what that will look like, but questioned the way that you phrased it. The employer has to permit employees. Does that mean and do we know whether it means the employer should take? Initiative to create this? Or is this something that employees will? Ask for or. 

Doug Rowe 

Well, look, the best practices would be that since employers are required to permit it, you know our advice would be to have the employer, actually you know somehow communicate with the employees that they have this right, because otherwise the employer is going to rely on the fact that they’ve distributed. The the prevention plan and the prevention plan that’s referenced to this safety committee, but. 

You know best. 

Doug Rowe 

Practices would be to actually have the employer communicate that the employees have this right. 

Susan Kreeger 

Yeah, agreed that makes sense, Yep. 

Doug Rowe 

Again, you know, with respect to the you know, you know you you met. You talked briefly about the implementation of the of the prevention plan, but you know there is also a training requirement, the training requirement. Is also indicated in the prevention plan, but I assume that you know companies are going to start using their HR departments or consultants and ensuring compliance. With the training requirement and again. Let’s let’s realize that you know, as you said, Susan, you know you. You’ve talked to your clients about compliance with this by distributing this plan, filling it out, etc. But that’s only part of it, a part of it is to have the plan. The other part is to implement the plan, and again, as I mentioned, there’s a training requirement so. What do you see? From from that perspective that the training aspect of this and again, do you do you, are you advising your clients to do the training in House or are you getting involved in? In the training. 

Susan Kreeger 

It’s it’s a bit of a mix and it’s still a bit of we’re seeing how it role plays out. This is still new. Most of the the training is fairly straightforward and things. Now going back to what you said earlier, Doug about a lot of this is sort of legislating what the CDC has been advising all along. So a lot of these things have actually. Really been in place so our employee, our employers are quite feel quite comfortable rolling out these plans and providing the training to staff and doing it. Some of them are doing it remotely because people are still remote so so it hasn’t. Then a major concern, at least for our worksite, our office work, workplace employees. I think it gets more complicated. With the different different kinds of models for the different industries. 

Jill Krumholz 

And I think also, Doug, you know I. Think that the. For the last months, as employers have had employees. In the office out of the office, there’s this hybrid. Some of these things have been top of mind for employers, so not all of this is new, right? So I think that that for many, many months, employers have been looking at ventilation, disinfecting, bathrooms, you know, scheduling of people, housekeeping. So this is legitimizing it, and you know making it a requirement. But those those things have been discussed. Our clients have been discussing them. I think this is formalizing. 

Susan Kreeger 

Jill Krumholz 

To a much greater extent. 

Right? 

Susan Kreeger 

So I think. Step routine come up which I think are our ongoing questions, but were questions prior to the Hero Act remain. Questions are around. Uh, continuing to do health. Meeting are are you continuing to to do that and? You should be doing it under the Hero act and you should continue to do daily health screening or shift health health screening. Another question continues and this event. This has been evolving even under the Hero Act like what are the requirements for masking? If it’s a vaccinated? If you’re fully vaccinated. As a group or partially vaccinated, there’s different requirements and now looks like the Hero Act is pointing us back to the CDC guidelines, so there’s some. A little bit of confusion over. Uhm over masking, although generally what we are seeing and what we’re recommending is that our clients do wear masks in the workplace. Whether or not people are vaccinated or unvaccinated, we are seeing people allowed not to. Not wear masks if they’re in their own office or you know, sitting in a in a space that is physically distant. Come from. Other people succeed apart so that that continues to be a question. 

Doug Rowe 

Right, yeah? 

Susan Kreeger 

Go ahead. 

Doug Rowe 

Yeah there is some. There was some ambiguity in the original prevention plan and actually the Department of Labor amended the plan last week. To essentially indicate that masks masks are not required in the workplace. If all the employees are vaccinated. So that was a change. And really, if you’re going to. You know, download the prevention plan which most companies will just they. They updated the plan last week, so make sure you’re using the updated plan using the old plan. Just print out the new plan and and and you know and and I use the new plan, but you know again. There’s changes every week. I mean, you know it’s just, it’s just crazy. All you can do is do your best to come. By and and you know, and and and and implement and enforce it by the way, from an enforcement standpoint, you know if there’s safety and health issues in the workplace. If an employee complaints about a lack of hygiene or or somebody appears to be sick, I think you know the best practices also would be for the. Employer to take seriously any complaints. To investigate any complaints to. So you know, try to ensure that the employee that you know that they are safety and health conscious and that. They will do. Everything necessary to protect you, know the workplace and the health and safety of the employee. So you know this sort of also a HR related employee morale. Related issue when it comes to, you know, the New York Hero Act and Safety and health issues in the workplace in general. 

Susan Kreeger 

Absolutely, and and I was going to just going back to the way things change on a daily weekly basis. In your plan, you do have to designate somebody to be responsible for the plan, and it’s that that person really needs to be paying attention and changes that are happening. The person in charge does need to pay attention to that and and know about that, and the act itself seems. There seems to be an understanding that this is going to change and there will be changes that have to be made in the plan and someone is responsible in your workplace for paying attention to that. 

Right? 

Doug Rowe 

Right? 

Susan Kreeger 

So whoever is is assigned that role really does need to. Be paying attention or talking to their lawyer or HR consultant frequently about what’s going on with that. 

Doug Rowe 

I I see in the chat, by the way, there is a question about the Hero Act. So the question is if your organization is based in New Jersey but works in both New Jersey and New York, or are they obligated to share the prevention plan? Well, again, the answer is. That that it’s really for New York employers with New York employees and in New York work. Place so technically you know the the New Jersey workplace would have to be in compliance with the with the prevette with the prevention plan and have the prevention plan. With that said, there are other laws that have to be followed. In New Jersey, let’s remember that even in the absence of the Hero Act, you know there’s the general duty clause of the of OSHA, the Occupational Safety and Health Administration. You know which requires every employer to provide a, you know a safe workplace, and that’s very broad in general, so you know even though there may not be a prevention plan in New Jersey, there is still this general duty to provide a safe, safer and company. 

Jill Krumholz 

Yeah, and and I. Think that that in terms of employee morale and in terms of organizational culture, if you have different if you’re. In New York employer. And you have locations elsewhere from the point of view of best practices, while the law. Is not requiring it. From the parents of best practices you would. Probably want to follow suit. 

Susan Kreeger 

They did not environment. 

Jill Krumholz 

There was another. There’s another question around whether employers are getting pushback from employees. 

Doug Rowe 

Yes, so that is really a question that is covered by vaccines in the workplace, which I am about to that. Yeah, that’s a. That’s a good segue point, so the answer. 

Susan Kreeger 

Anyway, you know I will say before we segue into that. I will say there is some pushback. In terms of masking that that’s been an issue and how how that is handled. If you’re fully vaccinated people, and it does tie absolutely into the vaccination mandate too, because if people are fully vaccinated, feeling frustrated that they still have to wear masks, and there is some. Pushback around that but, but generally I think. In New York. We see a lot of of compliance. Not not completely, but a lot of compliance with the health and safety regs. Maybe not as much for some clients we have outside of the New York area, where where there’s some of these requirements, so go ahead. 

Doug Rowe 

Yeah, and you know a lot of the pushback we’re reading about in general in the news is. Is really around the, UM, the healthcare workers and the schools, and you know, it’s it’s regarding the employees who work for school districts and then you have the, you know, mask mandates you know in the classrooms. Which is, you know you you see. Pushback all over the place on on that issue and you know that that’s that’s what we’re seeing, but you know again, it’s sort of a lower scale. The mask mandate. Issue is lower. Scale in in. The workplace, but it remains an issue and it remains. A legal issue, and it remains a compliance issue and remains their morale issue so. 

Susan Kreeger 

Now the Hero Act does not apply to. Do 2 schools correct or is? That yeah. 

Doug Rowe 

It does not. It does not, yeah. 

Susan Kreeger 

There are other requirements for that. 

Doug Rowe 

Right, that’s right. So, uhm. You know, obviously, that vaccines in the workplace is is a major issue right now. Uh, President Biden has pending, uh? Legislation authorizing UM OSHA to come up with a new rules regarding mandatory vaccinations for employers with more than 100 employees. Uhm, so we are all awaiting those new regulations. They’re not out yet as of this morning, but they should be out any any day and or any week and that’s that’s new legislation so you know, let you know. There still seems to be some confusion by employers. As to whether they can mandate vaccinations, so the answer is. Yes, employers can mandate vaccinations. With that said, the exceptions are if an employer as an employee has an objection based upon a disability or a sincerely held religious belief. Then the employer has to engage in the interactive process to determine whether there can be a reasonable accommodation for for an employee not being vaccinated, and. And in that case then. You know the the. It’s it’s a. There’s a possibility that the employee would not have to be vaccinated if there is a disability or or a sincerely held religious belief so. And and you know, there’s different. Accommodations, for example, if an employee. If an employer. If an employee says I I can’t be vaccinated, but I can. Work from home. Then the employer would have to engage in the interactive process with the employee to determine whether the employee can perform the essential functions of the job from home. So that’s an individualized analysis. Based upon company based upon the employees positions, obviously you’re not going to be able to have a. A mechanic. A war from home, but you could have an accounts payable. A clerk Working from home if they have computer access, so again, it’s a. It’s a function of analyzing whether the position and whether the work can be performed at home. With respect to push back, obviously we’re all reading about push back. Uh, in in in by by employees. And the pushback you know, aside from having a disability or a sincerely held religious belief. Uh, just could be based upon the the concerns about the vaccine itself. Uhm, there was pushback at at at some point in time a few months ago. Where the vaccine? Because the vaccines were issued by the FDA on an emergency use authorization basis, there was some concern by employees that that means that it’s not fully approved and at that point, when a vaccine is issued. On an emergency. Use authorization basis. The employee is entitled to receive a notification that they have a right to refuse to be vaccinated and there was an argument that was made and actually it reached a court. There was an argument that was made that because the employee could refuse to be vaccinated under the emergency use authorization. Then they could they, then they didn’t have to comply with a vaccine mandate. Uh, the Department of Justice, however, shot that down, as did a a court decision. But since then, you know at least the the the Pfizer vaccine was was approved, so we’re no longer necessarily having to deal with the emergency use authorization. Defense employees Though do continue to push back for whatever their reason is, as we saw in the news this week in New York, I think just yesterday or maybe Monday. This week, Northwell was compelled to terminate. I think two dozen employees for refusing to. Become vaccinated in the workplace so that that remains an issue. Uhm, employees employers. You know doing everything in their power to try where, where they want to have a masked man. They’re doing everything in their power to try to persuade employees to become vaccinated. They’re offering financial incentives. They’re offering time off. One of the interesting angles is and this happened, I think with Delta Airlines. That Delta Airlines is actually. Requiring health insurance premium surcharges for employees who are not vaccinated so you know there are different ways that that employers who want their employees vaccinated in in dealing with these issues. 

You know? 

Doug Rowe 

But yeah, the the the the, the, the landscape of the legal side of this is that employers can permit mandatory vaccinations in the workplace. 

Jill Krumholz 

And I. I I think the challenge here as Deb is implying is is really around the balance of the health and safety. Of employees and then the ramifications of employers attempting to to focus on health and safety and what that means in terms of organizations, culture, retention, people leaving. Some people may not be aligned with with the with their requirements or the philosophy of the company in terms of health and safety and feel that they can go elsewhere and and we’re seeing obviously, and you’re all seeing some incredible incredible. Challenges around the. So how do you keep your people healthy and safe and at the same time continue your business as your business needs to be to be run and have employees committed to, and staying with your organization? And then that’s really the most challenging balance here. 

Right? 

Susan Kreeger 

And and we’re certainly seeing a lot of even our smaller employees. Uhm, wanting to mandate vaccinations but not. Able to because of a few that do not want to be vaccinated for there not necessarily reasons that are legally permissible exceptions, but. Uhm, they’re important employees and they want to to keep them, so it’s it’s an ongoing issue for any size employee right now, I think with the. The vaccination mandates that are out there now. It does make it certainly with a lot of the large employers where a lot of them are following suit with mandates. It makes it harder for an employee to say I’m just going to go to another financial institution where they don’t require me to get vaccinated because they’re all they are requiring it in a lot of different places. 

Doug Rowe 

Great thought. 

Susan Kreeger 

So, so one of the things we’re also seeing that helps, and it helps around the communication is to do surveys with your employees before you put anything in place just to find. Now who who might already be vaccinated if you don’t know. That and that can also help you decide what kind of policy you need. You might be surprised and 100% of your team is vaccinated, so you. Don’t have to worry about those things. You might find that. 98% of your team is vaccinated and you just need to manage a few people. Maybe they can work from home. Uh, it? It depends on what kind of job they have. It depends on what that does to the morale to the team. But there are ways that maybe you can make it work if you you know have a good number understanding of what those. Numbers look like. 

Jill Krumholz 

And someone may ask. Although they they haven’t yet in the chat. But you know? You know, is it in terms of people? Privacy you know, can we ask when they’ve been vaccinated and if we’re going? If you’re going to do a survey, you don’t necessarily, you can do it anonymously, so you’re not asking you can, but you, you know. But you, you don’t have to. And that’s important to know. 

Doug Rowe 

You know one. Of the HR related issues in in mandatory vaccinations is tracking. Who was vaccinated? It was difficult. At the outset. Of when the vaccinations first came out because the rollout was different. As you recall, as we recall the rollout was. Based upon somebody’s age and. Other fact you know other medical factors, you know, since then it’s it’s opened up and essentially. You know everybody can get vaccinated, but you know there are. Depending on the size of the company, there are the software or apps out there enabling HR departments to try to track the vaccine. The vaccinations and. And you know, for smaller companies you know you know employers can inquire about who’s been vaccinated and get the dates. Or they can look at a vaccine card, but you know, that’s that, that’s you know they’re they’re again, depending on the size, you know. If you if an employer has a mandatory vaccination. Policy then they have to figure out how to track it, and again it could be simple as simply as writing it, writing it down, or copying the vaccine card. Or you know larger companies. May have to use more sophisticated tracking software to comply. 

Susan Kreeger 

Yeah, and in in connection. With that I’d. Say make sure it’s HR that’s doing. That’s keeping track of that information. The supervisor should not be asking for that. 

Right? 

Susan Kreeger 

It should be HR or your HR function in your organization to keep it. Separate from your supervisor. 

Right? 

Doug Rowe 

Well, one of the issues relating to. Vaccinations or lack thereof that we’ve seen is, you know, and and it it. It comes up more than you’d think that employees may claim that they contracted. COVID-19 because the employer did, did did not have a mandatory vaccine policy. Again, that would be covered by workers comp. Or an employee claims that they had an adverse reaction to a vaccine. Because because the employer mandated the vaccine had a mandatory vaccine policy, that too would be a covered claim under the workers comp law. One of the the difficulties in establishing that, though, is whether it can be proven. That the employee got sick from the workplace and and from the A mandatory vaccine policy or lack. Europe, so again there’s a causation issue, and that’s what the workers comp. Bar is in and insurance companies are dealing with right now, but it’s it’s also a uh. It’s also a related issue. 

Susan Kreeger 

Another thing. 

Jill Krumholz 

Are you seeing lawsuits at all yet? 

Doug Rowe 

Uhm, not many lawsuits. Again, you know it’s it’s there. There were several, but which were really shot. Now you you know there were some claims against larger companies. I remember a claim against Amazon that they didn’t prop and and McDonald’s. I think also that they didn’t properly protect their employees from a general safety and health standpoint, and again the the courts rejected those arguments. And you know ’cause the employer showed that they were doing whatever was necessary and appropriate at the at. The time following suit. 

Susan Kreeger 

You see challenges to this, uh, OSHA? Emergency temporary standard generally. 

Doug Rowe 

 I don’t. I think that when the the President Biden originally announced it, I remember hearing about some pushback or some threatened steps to take to prevent it from happening, but it’s it’s my understanding. It’s it’s an emergency order and. It’s it’s permitted, so I don’t see, you know, there could be some lawsuits trying to stop it, but I don’t see it being stopped. I think it’s seems to me to be a reasonable. You know? You know it’s it’s reasonable steps to, you know, protect the safety and health and to. You know, fix the fix theater and fix the the country fix the world. I mean, that’s if that’s what the President thinks is necessary. I think it’s it seems to be. 

Susan Kreeger 

An executive power yeah. 

Doug Rowe 

The problem. 

Jill Krumholz 

Yes and and it, yeah. OK. 

Susan Kreeger 

Sir, yes in in connection with that. It seems as though employees employers do need to start thinking about what. What does it mean to put this all in place? So we’re having conversations as well. Around that, how does this impact our employers? And one of the things that we really haven’t discussed and I’d like to, I think we should have a bit of a discussion around this. Is the idea of you can have a vaccine mandate and other and then employees. Also, you could allow them to be tested weekly so that opens up a whole new can of worms to have a lot of your employees being tested, and there are a lot of questions around. On that, if you’re going to permit that which you can, at least for. Uh, a private employer under this. 

Doug Rowe 

Yeah, I mean there are many issues, you know. Aside from the safety and health issues, who’s going to pay for the testing? It’s the testing to be done on the employer on the employees time. If it’s done after hours, is that compensable time? So there are just many. You know, employment law related issues just involving, you know, you know, testing in in lieu of a mandatory vaccine policy. 

Jill Krumholz 

But there are also different requirements in terms of compensating for exempt and non exempt’s potentially so non exempt would be compensated for time where they’re being tested. 

Doug Rowe 

Yeah yes yeah. 

Jill Krumholz 

Versus ignorance. 

Doug Rowe 

So that’s what we see in the mandatory vaccination world. Again, there really shouldn’t be confusion. I you know, I see. I think you know some of the. It pushed back, you know, has really not been valid. It it’s it’s really like the only pushback that’s recognized in the law is the disability and the sincerely held religious belief objection. No other rejections, no other objections. Are are viewed as as valid and you know just like something like a generalized fear of the vaccine is is just simply, you know, insufficient or a distrust of the government is insufficient. Now those aren’t valid objections that are recognized by the law. 

Jill Krumholz 

I, I think one of the things that’s happening is, and we’ll be discussing this next week. During our next, you know webinar around leadership and workplace culture, remote workplace policies and and recruitment and retention is that. Perhaps some of the. So perhaps employees are not pushing back as much and and from a legal standpoint, perhaps there won’t be as many lawsuits, but we’re seeing behaviors changing right from employees in terms of whether they’re going to remain an organization, or they can go elsewhere. There, right and and go to an organization to an employer that’s more aligned with their point of view, right? Or they may choose not to be working at this point, right? So people are feeling very strongly about, you know about vaccinations and they may just get up and opt to leave their employer. So those things are happening too. And I think they’re very real. 

Doug Rowe 

You know this is it’s it’s, it’s really a. Major HR challenge. Now you know from a from a from a employee retention standpoint, you know it’s it’s, it’s and again, that’s what you’re going to be speaking about next week, but. It’s it’s significant. And it’s probably the most significant HR issue out there right now. I mean, this. We’ve never seen this again in our history, so. It’s it’s definitely a challenge, I’m not. Sure, how you’re dealing with it. Can you give us? A tip. 

Susan Kreeger 

One of the things that that we had talked about, you know, as we were preparing for our conversation, is we. Looking for sort of. Our guidance are North Star. What is it we’re trying to do here? We’re trying to protect health and safety of our employees. There are many other things that we’re doing, but that’s. When you have a pandemic, that is what’s out there. So what are the ways that we can do that? And I think the communication piece. With your employees around, that is so critical talking to your employees and we will be covering this much more in the next session about the communication, but making sure employees realize it’s not just about we disagree with a political view or a. Religious view it’s about. You don’t know if if your employee has unvaccinated young children at home, you don’t know if your coworker has an elderly parent living in the home that’s that has. More health concerns than other people there. This is something that we need to pay attention to together as a community as well as as a workplace. And I think that those kinds of conversations do help. Uhm to hopefully resolve some of this and and make it make it work better where we’re doing this for each other with complicated. Unique issues that are happening with your Co employees that you might not even know about, so I think those conversations are are important to have in that communication. 

Doug Rowe 

Yep, communication and education. 

Yes, yeah. 

Jill Krumholz 

And and I think. Kindness and listening. Because I think that there is a from a leader, there’s a. Lot of onus on. On the leaders of organizations right to be perhaps more communicative, more candid, and hear employees more than than perhaps they have in the past for some. And make decisions that that are transparent and boys. 

Doug Rowe 

Yeah, which which which? 

Jill Krumholz 

Noticed and. 

Doug Rowe 

Yeah, which results in the need to properly train supervisors as well, because you know they they don’t necessarily know. It’s it’s a it’s a. Yeah, it’s a challenge as I said. 

Susan Kreeger 

Yeah it is and that that is a critical piece. The supervisors who directly interact on a regular basis with the team need to understand how to communicate about some sensitive information that they’ve never. Even they’ve been told not to talk about it before, so it it is complicated. And I think the issue and this actually is a question that I’m seeing in the chat of which. Definitely goes to our next conversation about. Uhm, how to track productivity for remote somebody working remotely, you use decided to pay for someone to work remotely and we’ll we will be covering that. But I think another piece of all of this is the sense of being tracked and employees feeling as though you have. Personal information of mine. Why do you need to know about that? Why are you involved with my personal health choices? So I think that idea of monitor. Very here on the vaccination side as well as what we’re going to be talking about around morale and productivity, you have to balance that very carefully. How do you monitor people working remotely? How do you monitor information without employees feeling as if this is way too intrusive? For me this is not what I. Signed up for. And there are ways there are. Ways to do it. That by Doug. Going back to what you said again, education and understanding how to manage a little bit differently around the communication as well as around productivity and expectations. In the world. 

Doug Rowe 

Right, so so yeah, so with. With that said, you know, as I said at the outset, you know. More employees working from home is just the the the new, the new workplace and it’s the new world. And you know, employers have to remember that the Home Office is still the workplace. So if you have an employee who is an hourly employee, there has to be a way to track that employee time. If an employee works from home, there’s going to be a tendency to be able to work anytime, just as long as the work gets done. So you could envision an employee who works. Three hours in the morning and takes a 3 hour break and works 3 hours in the afternoon and takes a 5 hour break and puts the kids to bed and they. And goes back to their computer at 11:00 o’clock at night and works till 2:00 in the morning and the employee got the job done well, how is an employer going to track that time? So boundaries have to be set? Schedules have to be set. Supervisors have to be trained on on what to look for. Employees should actually report on a daily basis when they. Work from home. What their hours were on that day. Otherwise, as I said before, how is an employee? How is an employer going to know? You know how much time was spent that day, you know? So as not to run afoul of the overtime rules. There should be a separate work from home policy dealing with all these issues. Again, as I said before, you know. The Home Office is the the new workplace for all purposes, so the discrimination laws still apply. Uhm, there are a there have been a rise in discrimination cases over the last several years, some of which have arisen out of communications with between employees who who work from home, the the health, the the health and safety of of employees. Is is also. Touched upon in the Home Office. If an employee. Is working from home and trips on the way to the bathroom. Arguably that’s a workers comp claim, so employers want to make sure that their workers comp policies, and even their general liability policies just in case. An employee receives a business visitor at their home, covers all scenarios like this. So again, it’s important for employers to be aware of these issues. Remember that that when an employee works from home, they may be working on their home, their home computer, and they’re potentially exposing their companies trade secrets or confidential information where there aren’t sufficient firewalls or other computer protections. So the employer. Has to make sure that’s that’s addressed, and regarding you know the question about tracking productivity. Generally speaking, employers don’t have a right of privacy. There’s no claim for invasion of privacy. It’s important to have a policy, a written policy that says employers have the right to monitor their employees work and intend to do so, and will do so. There is technology out there enabling employers. To track how many calls the employee made, we had one client to actually set up a small camera in front of the computer monitor who was able to see at any time of the day what the employee was doing at any given time. So that’s how you track the employees work through technology. And and, you know, make sure that you’re getting the product to ensure that you’re getting the productivity that you’re paying the employees for. 

Susan Kreeger 

And really interesting morale issues around that Doug. 

Doug Rowe 

Right, I understand again, which requires education and communication. 

Jill Krumholz 

Yeah yeah, I I do think. There’s another, yeah, there’s another component of. I think the onus is on the employer to create performance processes evaluations. First job descriptions, but then performance reviews so people are accountable in that way, which they’re much more accustomed to, right, and and so you measure kind of productivity that way. I think it becomes. More difficult with. With nonexempt’s in. 

Doug Rowe 

And by the way, one last point about it. What we’re also seeing is that if if an employee works from home, some employers are now taking into account where that employee is working from. So Needless to say, the cost of living in New York is going to be different than the cost of living in Iowa. And you know, should the employer. Adjust the employees. Pay because of. Where they’re now work. I’m not saying they should or shouldn’t, but it’s an issue that’s being discussed in the. HR World right now. 

Susan Kreeger 

Then we will say stay tuned. So got lots on that, Yep. 

Doug Rowe 

They do. 

Alison La Ferlita 

Yes, you know, I’m starting to think this may need to be a four part webinar series so. There’s so much here, thank. You to the three. Of you so much, I mean really, this has been, you know, time well spent and I I hope that our. Our attendees feel that they’re getting some really valuable information in here, and this is going to help your businesses, so you know. Thank you once again, please no Part 2 we’re going to keep going on October 6 at 12:00 PM. Please make sure that you register and you know we also have some other really great. Events coming down the Pike that I just want to let everybody know about quickly. We have our nonprofit meet and greet which will happen by zoom this month October 28th. Well next month but soon this month. If you plan on attending. This Please note that you. Must be an RH associate member A. Guest of a. Member or an RH nonprofit partner to attend. So if you are not a member as of yet, or a nonprofit partner as of yet, I encourage you to please get on the NRH website and join if you are, uh. A service provider or provider of goods. You will become an associate member if you are a non profit. You will go under non profit partners. Enjoying this is a free event and it will be by zoom. This time. We also you know it’s important that we do this because our associate members, they are their trusted advisors for for a nonprofit community, so we want to make sure that we’re constantly putting out great programming like this to bring really helpful information to our non profits. And help you achieve your mission. November 9th we have another webinar coming up called navigating conflict of interest transactions. You can register online for that and you know we’re constantly adding some really great programming, so be sure to check out our calendar. Events so in closing, I want to thank all of you for attending today’s webinar. You will be getting a survey. Which is really important for us to see if we’re giving you what you’re looking for. So we. Ask everybody to please. Fill it out and submit it back to us. If you are interested in hearing more from Jill or Susan or Doug. There will be an option for you to opt in to get more information from them. Please make sure that you complete that. If you do want to hear back from everybody or be in touch with them and For more information about the nonprofit resource hub, we are here to support our nonprofit community, go to nonprofitresourcehub.org once again, I thank the. Three of you. So much looking forward to Part 2 and planning part three and four. It seems like with a lot of ground to cover and constantly changing, and you know, please share this recording with flow with your colleagues. Have a great day everybody. Thank you. 

Jill Krumholz 

Thank you Allison. Thank you Allison. 

 

Play Video

Liz Holmes 

Hey there, I’m Liz Holmes, associate broker at the Rockland organization, could an. Employer require its. Employees to take the COVID-19 vaccine as a condition for returning to work. Answers to that and other legal questions coming up. Today we are pleased to have with us Doug Rau, a partner in the Labor and Employment Group at Sir Tilman Ballin, dug broad range of expertise includes claims alleging discrimination based upon race, sex, religion, national origin, age, and disability, as well as sexual harassment, wage and hour issues. Labor arbitrations and defensive employment related claims under federal and state statutes. 

Doug Rowe 

Today we’re going to discuss, UM. The the employment law considerations. Uh, for returning to work and and also, you know what we’ve seen as essentially the claims that have been arising out of the pandemic? Employee morale in general is every every employee. Every employer and every employee in every company is concerned about their health and safety. Their you know employers are concerned. About you know getting the job done and profitability, but also you know the health and safety issues. Those issues also potentially invoke the workers compensation law if an employee does contract the you know the coronavirus in in the workplace you have those considerations at the hottest issue at this moment. With respect to returning to work, which is to vaccinate or not to vaccinate and this comes, this goes to the issue of whether employers can require their employees to vaccinate for against the COVID-19. So the the answer is that. Employers are not required. But they can require their employees to vaccinate. The EOC basically said yes, employers can mandate that that their employees. Vaccinate and and as part of the guidance they also have. Have addressed the issue of how to how employers should. Properly handle objections that employees may have against against getting vaccinated. So, for example, if an employee has true. Objections based on a disability the employer has to take that into account has to engage in the interactive process with the employee to discuss whether. There are some alternative measures against against the VAX against getting VAX. Waited and. Then the employer would have to evaluate whether the employee is entitled to a reasonable accommodation of not being vaccinated and if that employee is not vaccinated, how the employer can deal with that employee who’s not going to be vaccinated against Oreo. All the other employees who may be vaccinated so. Again, as I said before, one of the potential reasonable accommodations there would be permitting that employee who has a true concern about being vaccinated, and when I say true concern based on a disability, it’s not just I’m I’m fearful of what could happen to me. It has to be a viable concern based on a disability or a religious exemption exception, by the way. 

Liz Holmes 

So do you see any challenges? To that if if they employer is mandating that. The the vaccine be given to an employee. Do you see challenges coming from that in the future or at some point? Because the the vaccine is not right now widely available, it’s not as easy as walking down to CBS or to Walgreens like the flu shot and being able to obtain that. Do you think that there has to be some? Sort of time that goes by before an employer can mandate that or. Uhm, do you think there’s a buy in that has to happen from the employees in order for this to happen? 

Doug Rowe 

The the, the, the difficulty of mandating. The the that that employees are vaccinating vaccinated is that every state has a different rollout period. So we all know in New York you know it it not. Everybody that there’s different phases to being able to be. To receive the vaccine. So if an employer decides every employee has to be vaccinated, well, it’s not immediate. I mean, it may be you know certain employees this month, certain other employees next month. I mean, I’m not even sure what the what the the the schedule is as far as the rollout for for employees being vaccinated. But again, it’s not all going to happen at the same time just because of every states. Roll out a plan. For for getting vaccinated. So first of all, that’s the that’s a practical challenge. 

Liz Holmes 

Another question. Uh, that I have is is how do you balance employee privacy with? Public health and safety concerns so, so there are a number of protocols that businesses are taking as they go back to work. I’ve actually seen them. I know in our office when we we go in, someone uses the thermometer. They take your temperature. Some of them you, you know when you’re walking into a business, you’re scanned. Uhm, so if you have an employee who says you know this is somewhat invasive, even though it’s a, you know it’s thermal and it’s it’s being, you know, vaped at your head. Uhm, is that something that is permissible? 

Doug Rowe 

Yes so. The answer is yes, it’s permissible, and the EEOC again, the USA Equal Employment Opportunity Commission, has specifically stated that body temperature checks are permissible and are not deemed to be a medical screening under the Americans with Disabilities Act, which is prohibited. Under the Adea, so therefore body temperature checks. Is are permissible and again you know it it. It makes sense and it’s protecting the workplace overall and you know the rights of the employer. Under that scenario you know Trump’s the the the employee rights to privacy and but by the way, let’s remember we’ve all heard about invasion of privacy claims. But that really doesn’t exist in the workplace. In New York State, it’s always. It’s still better for employees. 1st to have a written policy as far as what they intend to do to protect the workplace. It’s always better for employers with respect to employees perceived right to privacy to let an employee know that they’ll be monitoring their emails and monitoring their their their their telephone. You know, usage and. And whatever else, with respect to employees perceived right of privacy. But again, employees don’t have necessarily have the right of privacy. But you know, we’re in a different world now. COVID-19 has has really not changed the playing field, but. There’s a perception that that it has one of the issues that comes up in the invasion of privacy. Context as well is that if an employee. Is actually actually test positive? What does an employer do? What are the employers obligations? So because of the employees rights to privacy and confidentiality. The employer in that case should disclose to other employees that somebody has tested positive not to disclose who the employee is that tested positive and then determine who The Who, The Who the positive. Tested employee has been around in the workplace and then the employer can deal with you know whether you know there should be concerns for any other employees as well so. That’s really, you know, there there is a confidentiality requirement as I said, and that’s the best way to handle it, which is not to disclose the identity of the employee who tested positive. 

Liz Holmes 

OK, and the CDC has issued guidelines in terms of who is at higher risk for exposure to COVID-19. That includes individuals who are over the age. Of 65 Pregnant women, other individuals with underlying health conditions such as obesity, diabetes, the list goes on and on. The question is whether or not an employer can ask one of those high risk individuals. Person, age 65 or someone who’s who is pregnant to remain at home simply because they are at greater risk. Are they allowed to do that under the law? 

Doug Rowe 

They’re not, you’re not, it’s the it’s the employees, right? 

Liz Holmes 

  1.  

Doug Rowe 

You know, I I, I understand why an employer would want an employer in that case. Would be hiding behind their outward concern about towards, you know an older employee or a pregnant employee, but it’s not up to the employer to make that decision. It’s up to the employee to decide whether they’re fearful based upon. There being a vulnerable employee, so to speak, and whether they wanted to take a leave of absence or work from home or or request some other accommodation. The EEOC also came out with regulations specifically on this issue. You know, in the early fall. As well. 

Liz Holmes 

OK and then. 

Doug Rowe 

Yep, Yep. 

Liz Holmes 

Just you know, one final question. It it could be sort of, you know, pretty broad here, but are there any other duties, liabilities or legal issues that an employer should be considering as they return to work? And again, I know that’s pretty broad and you did cover it. Some of that in the beginning, but. Uhm, if you could touch on any other with liabilities that employers should, should you know? Think about as they return to the. 

Doug Rowe 

Workplace OK, well the whole idea of returning to the workplace. We’ve been talking about returning to the workplace for quite a while. We’ve been speaking about that since you know the the, the, the, the, the, the, the changes, you know originally, businesses closed down except for essential businesses. And then that changed. And then there was some. You know, then, this the state permitted IT companies to reopen, so we’ve been dealing with these return to work issues for quite a while, so. This has been an evolving issue, but. You know, returning to work issues right now are not necessarily do not necessarily involve solely the the physical return to work. You know one of the issues with working from home is employers are concerned that they’re not necessarily getting the same productivity. And maybe they’re not, and there is software now that exists that enable employers to track their employees work. There’s software that actually enables. And at an employer to actually see what the employee is doing at any given time, what’s on the employee screen at that time? Uhm, so that’s a concern to employers, but that can be dealt with. One of the one of the issues that we’ve been involved in is helping employers create work from home policies, so the employers the employees will understand what their rights and obligations are. So I’ll I’ll give you an example of what can come up on work from home issues, so employees as you know are entitled to be paid. For all their work done. If an employee has a schedule to work nine to five, that’s what the employee is going to be paid for in an hourly basis. But New York State, for example, has all has a requirement. That employers provide their employees with at least 30 minute meal period. Every day, so the employers have to remind the employees that they have to take their meal period that it’s mandatory. Uh, when when employees work from home? There could be a tendency for employers employees to take breaks whenever they want, because as long as they get the work done for that day, they’ll they’ll. They’ll be fine, but you know what happens. There is. How does an employer? How is an employer able to track the employees? Time and remember that employees. Are entitled to time and 1/2 for all work over 40 for the week. So if all of a sudden the employee is working at night and on weekends, how does an employer really know how many hours that employee worked so the employee by by not the employer by not setting a schedule? That employee is potentially at risk for an unpaid overtime claim, OK? 

Liz Holmes 

OK, sorry that I think that’s why we have time for it today. I I just want to thank you again for joining me and I hope that we’ll be able to speak with you again. 

Doug Rowe 

Sure, thank you. 

Liz Holmes 

Alright, thanks again Doug. Take care. Bye bye. 

 

Ken Cerini 

Thanks everybody, and welcome to the July 2021 edition of the Serena Nonprofit Connection. As I said that even though this is a a nonprofit thing, I think it affects everyone. So we’ve opened it up to. The the whole world. Everybody wants to create a safe workplace for their employees. While most New Yorkers have been vaccinated, others feel strongly about not getting the vaccine. As a result, employers have to have had to develop a vaccine vaccination policies. Today we have with us two experts, Susan Krieger and Doug Rowe, who’ll be kind of walking us through and answering some questions. Susan Krieger is from real HR Solutions and Doug Rose, a partner in Sir Tillman Balan. Heyman and Adlers employment law practice. So hopefully they can shed some light on this important topic. So Susan and Doug, thanks and and welcome. 

Susan Kreeger 

Thank you again. 

Ken Rowe 

Thank you, Ken. 

Ken Cerini 

OK, so let’s just kind of get started. And if anybody does have questions, please just ask those questions through the Q&A and I’ll try to get to as many of them as as humanly possible. But again, I think we have a lot more questions than we have time here, so, so many employers are grappling with their vaccination policies. Should they mandate vaccination or not? What would an employer set? Why would an employer I should say, set a policy for vaccination? So should you? Want to start with that? 

Susan Kreeger 

Sure, and I think. Initially we just need to acknowledge that. Delta variant has changed the landscape with a lot of our. Session today around how we might think about these issues, but I think it’s also important and Doug will certainly talk about this more. And he mentioned as we were talking before, starting the webinar, a lot of the legal issues really are still the same. So it’s it’ll make for, I think, an interesting conversation taking that. Into consideration. So I I think a lot of again back to delta, a lot of companies now are rethinking what their policy should be. I think one of the. One of the main things happening with the rates of transmission going up with delta companies are rethinking reopening. They’re rethinking how to whether they should mandate. I think there’s a little bit more. Willingness to mandate on the part of large companies. I mean, every morning you look at your news feeds and more and more companies are announcing they’re doing some, some version of of mandating vaccines, I think. And the bottom line is companies are looking for ways to create self. Safe and healthy workplaces for their employees. How how do they do that? There is a lot of. There’s a lot of emotion around vaccination. There’s a lot of concern around the idea of mandating vaccinations, and there are health concerns on both sides. So there’s there’s so much to take into account. But the bottom line is employers want to create a safe and healthy work environment. So there are some specific specific things that we need to think about and consider in connection with that. You know, if you have a vaccination mandate. You know, how do you police that? Who gets the information? How do you? Account for people who need to be accommodated for health reasons. They’re all of these different considerations that should go into a policy. That you want to create. You know one of the the things that I do hear a lot from my. How do you reduce the anxiety that people have for bringing people back into the workplace, if that’s what you’re going to do? Mass vaccination mandates. Could help that as we know there’s another side to that story as well, but that’s that’s another big reason that we’re hearing about why others want to see or know everyone in their workplace has been vaccinated. There you avoid for vaccination policy, you avoid the need for implementing quarantine periods. If somebody is affected by COVID or has come into contact to avoid the need for contact tracing. There are you avoid having to treat different classes of employees differently, so these are all reasons that I I see with clients and also read about for reasons for having. Mandating vaccinations in the workplace. 

Ken Cerini 

Doug, you want to add to? 

Ken Rowe 

That sure. So why? Why an employer would want to have a mandatory vaccination program. Is is pretty clear and simple. They want to protect their employees. First of all, they have an obligation to protect their employees under the law and you know it. If if you if you say what? Law OSHA requires employers under the general duty clause. OSHA is the Occupational Safety and Health Administration. Requires employers to provide. A safe workplace for their employees, so it’s it’s easy to say that I an employer, should mandate vaccinations. For that reason, employers also want to protect their company if if if they have an outbreak in in the workplace, they’re going to. Have have a scenario where they’re gonna lose production. They’re gonna lose money. They’re they’re trying to protect their business. So you know, there’s obvious reasons to protect the employees and to protect the business is a reason to have a mandatory vaccination program. You know this this issue obviously is is is a very hot topic and it’s become even hotter because of the the Delta variant. And as I said before, and as you mentioned, can this issue is not new. The issue of of mandatory vaccinations it actually arose. In in December of 2020, when the EEOC, the US Equal Employment Opportunity Commission, first came out with regulations basically indicating that that employers can mandate vaccination so that gave employers the green. Right. And many employers have done it and there have been many issues arising out of it since then, but employers, some employers mandated it, some didn’t. And we went on and that’s how business was operating over the past four or five, six months in the meantime. The Delta variant has now hit and has caused a resurgence of. You know, employers addressing this issue and I this is like such a hot topic that just since yesterday. I’m just gonna read some of the headlines. And this all came from yesterday and this morning Google postpones returned to office and makes vaccination mandatory. Durst employees in New York City still unvaccinated after Labor Day will be fired. The related companies, a large real estate development company in New York City. Online job postings say that anyone working on site must be vaccinated as a condition of employment. Morgan Stanley proof of vaccination required to enter buildings. Governor Cuomo this week announced that all state employees are to get vaccinated by September 6 or take weekly tests if they’re not vaccinated. Also, Mayor de Blasio issued the same mandate, but the New York City employee requirement is by September 13th. Netflix became the first major studio to require COVID Maccini nations on all US productions. Just this morning, about an hour ago, Twitter announced that they’re shutting down their New York City office, again due directly to the Delta variant Spike. Federal buildings Nancy Pelosi announced that all visitors to the Capitol building had to be vaccinated. Well, it was also announced this morning that the Capitol police will arrest staffers and visitors who refuse the mask mandate in the Capitol building. It it’s it’s that severe and and and I as I indicated before it it it makes sense but you know the Delta variant I think has also given employers the opportunity to again educate employees on the importance of of. Of the vaccination. Again, for their own health and safety. And for the benefit of the employer itself. So I think that employers need to focus on. It was always an issue as to whether to mandate vaccinations and if employers were to mandate vaccinations, how to convince employees to buy into, you know. The the police. See and again, this is a renewed opportunity to educate employees on the importance of becoming vaccinated. 

Ken Cerini 

So I mean, this opens up a whole bunch of questions here in terms of what you guys have have said. First one I’ll throw out is you know you you have individuals who have been vaccinated, who have come down with. COVID and I know Susan, you said that, you know, if you’re vaccinated, that avoids contract tracing, contact tracing and everything else. We talked about. I mean, how does this now start to change some of those policies where, you know, you do have, you know, individuals who have been vaccinated, who are coming down? With it with. The COVID virus, how do you deal with all of this in terms of modification, modification of policies and and? 

Susan Kreeger 

I think, and I I hate to say this, I think we’re going back a little bit and there are some things that have been in place around you know around. Masking and around what I just said earlier, the vaccination can avoid some of the contact tracing requirements I think. You know, we’re in a in a place where we don’t have enough people vaccinated to make some of this all go away. So we’re going to have to stay flexible and we’re going to have to pay attention to in certain areas there there’s certain areas that where there’s a lot more. There might be requirements that are different there than are in in other locations. Some things that I’ve just been reading recently, we need to maybe more fine tune how we apply some of the requirements around. Contact tracing. How we? Require masking going forward where we require it I I think it’s a just a moving target and it’s it has to stay flexible and I think I think people are asking and and the question you asked can kind of leads me to think about people are saying why? At this point, why am I getting vaccinated? For what? You know what, what is the benefit? I mean, certainly you’re going to stay healthier, you’re going to stay healthy, you’re going to avoid the transmission, the widespread transmission and. This goes to Doug’s comment about education. I think that that is a critical part of. Any policy, you know, policies. Will be put in place, but people need to be educated around why they need to feel comfortable and understand why they’re being asked to do certain things. And it’s it’s just changing by the minute. 

Ken Cerini 

Doug, that you had mentioned. Somewhere along the line in in one of your responses, something about the need for regular testing. So if people aren’t going to be vaccinated, they have to be regularly tested. I think that was one of the standards. On the headlines. That you had, you were going through. How does that regular testing work? How regular? Is that testing? Do you see out there? And who’s responsible for it? Is the employer responsible for paying for it or or paying staff to to go and and get that regular testing on their on the employers time? Or is that on the employees time? 

Ken Rowe 

Keep going, Ken, because there are so many questions surrounding testing as an alternative to mandatory vaccinations, so you know, again, some employers will have a mandatory vaccination policy and will and and if so, they’ll have to still deal with potential objections. Based upon disability or religious objections. But if, as an alternative to employees who refuse to become vaccinated if they want to have a a regular testing requirement. They can do so, but there are you’ve raised the issue. So who’s responsible for paying for that? Is it covered by the the the health insurance policy that the company may have have and and provide? If an employee has to take time off to get tested? Is that compensable time, by the way? All these issues. Have not gone through the court system yet. I can’t necessarily tell you, but I would think that an argument could be made that if an employer has a mandatory testing requirement, you know one of the options is to bring in a, a, a, a, a, a medical provider on a weekly basis to to have that. Testing and again as you said, who pays for that? Does the employer. Pay for that and it’s not inexpensive to have somebody come in on a weekly basis and and run these tests. Or does the employee pay for it, and if the employee pays for it, then does that create potentially a violation of the wage and hour laws? And if an employee is only a minimum wage worker? And ends up having to pay. For for testing, does that create a minimum wage violation because it’s an expense that’s incurred by the employee in furtherance of the employment which results over the course of that week in in? In a scenario where the employees actually paid less than the minimum wage because of that? Expense that the employer was forced, the employee was forced to incur. You know, so again, these are the issues they have not been. How arguments could be made on both sides and you know, again, I haven’t seen many companies with that mandatory policy. And again, I mentioned it that you know that’s what Governor Cuomo it required. And again public employment is may be different than than. Of private sector employment but. The these issues have not been resolved, have not gone through the courts yet. 

Ken Cerini 

I’m sorry, go. 

Ken Rowe 

Ahead, sure. 

Susan Kreeger 

I can just jump in on that, that it that does raise so many unanswered questions, but critical questions for employers around. The idea of ongoing testing and a number of we’ve been hearing that in a number of places, whether it’s government, private organizations, if you’re not vaccinated, you have to be tested weekly. And what will that look like? How will that play out? Where are people going to go to get to? Are they going to have to get tested on their own time or on company time like Doug was saying? Who pays for it? Can you their their issues around incentivizing? Also if you incentivize try to incentivize. People to get vaccinated. You’re impacted if you bring in someone to do the testing or to do the vaccinations. There’s an impact on how much you can incentivize under other laws that have to do with Wellness. So there are just multiple questions that keep being that that come up. All the time, but the fact of the matter is, as a company, you need to make decisions and you need to decide how you’re going to handle these. Things and so thinking it through using the best information we have at this point, knowing there is going to be a certain amount of risk because these things have not worked their way through the courts. It’s a tough position for employers, but we need to. That’s a lot of what we do. We have to help. Our employer. Others make those decisions, and it’s not a cookie cutter approach at all. It really depends on the kind of work you do, the setup you have. You know, we have a client out in rural Montana that has very different needs than our clients in New York City. So all of this. It it needs to be addressed. But it’s also a moving target, so that’s the situation we’re in. 

Ken Cerini 

There’s still a go-ahead. 

Ken Rowe 

I don’t just want to say just this. Is a a. Important point, because you just mentioned Montana. Coincidentally, Susan Montana actually has a law prohibiting mandatory vaccination. 

Susan Kreeger 

Yes, thank you. 

Ken Rowe 

So you know it when. You know, it’s one thing about. Like the federal mandates, it’s another thing about once you get past that, you still have to look at the. The state law as well not and and and I I’d like to touch upon can I let you go first, but I want to touch upon some of the legal issues involved with Ken. 

Susan Kreeger 

Absolutely, yeah. 

Ken Cerini 

No, I mean there, there are. There are plenty of areas or directions we can. Go on this. In terms of right now, I just want to also bring up a. I mean, you know, because some of the people who are on this are nonprofit organizations and and not only are they having to grapple with, you know, their employment related matters, but if they’re going to be doing fundraising events and and in person fundraising events, you know what happens there in terms of policies established for these in in person fundraising events. And what happens if during an event someone? Gets sick. And you know what sort of exposure exists? That’s if anybody knows the answer to that. 

Ken Rowe 

Well, from a fundraising standpoint, the question would be if somebody gets sick, whether if they, if there’s a claim made against the nonprofit or a lawsuit filed, you know, basically for negligence, does their general. Quality insurance policy cover that claim. And by the way, this is probably an opportunity and that you know, for nonprofits to go back to their insurance broker to make sure they have sufficient coverage for that scenario. 

Ken Cerini 

Is failure. Is failure to. Have people who are attending event. Be vaccinated? Consider negligence. 

Ken Rowe 

Maybe I I mean I you know, in this day and age again you were raising issues that have no. Gone through the courts and not been resolved, and I could certainly see a plaintiffs attorney making that argument. 

Ken Cerini 

Well then, then you go ahead. 

Susan Kreeger 

I was gonna say, as a former attorney, non practicing at the moment, I often think about what are all the things you’re making clear you’re putting in place. So for the fundraising event. Are you asking are you are you sending a questionnaire? Are you asking if people are vaccinated? Are you requiring people to wear masks? You know all those things? I would think, Doug add up in. You know, in looking at liability you’ve done at least as much as you can. 

Ken Cerini 

Remember, most fundraising events have some level of food attached to them, so it’s very difficult for a. Mask it is. 

Susan Kreeger 

But like you know, when you’re on the track, which I was just recently, you’re allowed to take your mask off while. You’re in the process. Of eating. So you know there are. There are different things that certainly can be. Done well on the. 

Ken Cerini 

Converse side then, if you do mandate someone get a vaccination and let’s say they get sick in the process of getting a vaccination or maybe they have an adverse effect. And unfortunately become disabled or die. What happens there in terms of the risk from an employer’s perspective? 

Ken Rowe 

Well, from the employer side alright, any claims like that would be covered by workers comp workers, compensation insurance covers, any workplace injuries. So if an employee contracts COVID in the workplace because there was no there was not. A mandatory vaccination policy. That would be a claim that would be covered by workers comp. If an employee claims that they suffered, you know, some kind of injury because they were vaccinated because of a mandatory vaccination policy, that too would be covered by workers comp any employment related. The claim that rises out of the employment is covered by workers comp as the exclusive. 

Susan Kreeger 

Although, Doug, just to jump in, I think there is some question about whether workers comp covers contracting COVID. 

Ken Rowe 

Well, there’s, there’s not a question of whether it covers it. There’s a question of whether the employee can prove a causal connection between getting COVID in the workplace or getting it from going out and getting going to the local. Gas Station, I mean that’s that’s been the issue. It’s really a causation question. But you know it. Otherwise, it would. If they can prove it. And I don’t know how they would necessarily prove it, cause everybody goes out and meets other people and, you know, comes across other people. The mere fact that somebody in you were sitting next to somebody in the office who had COVID doesn’t mean you get COVID. That doesn’t mean you got it. From that person. So there’s a causation issue that makes these workers comp. Issues difficult to prove. 

Ken Cerini 

You mentioned earlier. What do you call it? Are the risks concerned with? Or why do organizations would or employers would set up a COVID policy? But what are? The legal risks concern for establishing a mandated vaccination policy. I mean, this is the employer taking on additional risk by. Mandating this or no. 

Ken Rowe 

There were risks and mandating it there were risks and not mandate mandating it. So if they’re going to, if they’re going to have a policy if they’re going to have a mandatory vaccination policy. They just have to recognize that, first of all, it’s lawful for an employer to ask if an employee was vaccinated. That’s not a medical inquiry under the Americans with Disabilities Act, the EEOC so said that in there in their. Meant in their regulations that came out in December. But the EEOC also said that if an employee has a ballot objection based upon a disability or a valid religious objection. Then the employer. May have to provide a reasonable accommodation. To the employee. So before they, the employer evaluates the reasonable accommodation issue, they have to engage in the interactive process with the employee meaning. That they have. To have a discussion with the employee about. The whether there is a disability? What is this you can’t ask about what the disability is. The employee can object based upon a disability. Can inquire what the disability is, but if the employer is satisfied that there’s a disability? They have to. Consider a reasonable accommodation. Could be permitting the employee to work from home, not come into the office. Could be as we discussed before, you know, testing the employee on a weekly basis in lieu of requiring the mandatory vaccination. Those are the kind of. That’s the kind of reasonable accommodations that have to be considered by way of example. One of the concerns, by the way, from a legal standpoint. What employers had was that when the vaccinations came out, they were issued by the FDA under the Emergency Use Authorization section of the of the FDA regulations. And under FDA regulations. Employers were required, or every employee who would be tested would be required to be given a fact sheet from the FDA and the fact sheet specifically states that the employee can refuse. To get the vaccination. So there was some concern from the employment, the employment law standpoint that does that FDA regulation. Somehow Trump at the employer’s entitlement to mandate vaccinations, essentially under the EEOC regulations. Well, that question was just answered this week and again, this is rapid changing news almost on a daily basis. But on July 26. The justice the United States Justice Department basically stated that notwithstanding the that employees are entitled to refuse the vaccination, employers can nevertheless have a mandatory vaccination policy. See and that doesn’t violate the FDA rules. But interestingly enough, there are other considerations that employers have to take into account now that they. Received the green light from the Justice Department regarding this FDA requirement so. Employers still have to consider. For example, bargaining obligations if there’s a Union agreement, the mere fact that the employers are entitled to have a mandatory vaccination program doesn’t mean that you know, that doesn’t violate some other agreement like a collective bargaining agreement with. The union. As I mentioned before, the Justice Department indicated that employers continue to have to recognize any accommodation obligations that they may have. Once the mandatory vaccination policy. It is required by the employer. Then the employer still has to determine whether that policy may have a disparate impact on a particular class of people. You know, hypothetically if every employee ohh you know under 40. Receive the vaccine and every employee over 40 refused to receive the vaccine. Does that policy somehow violate? Is that policy somehow discriminatory? An evaluation would have to be made. Again, regarding the discrimination laws, this mandatory vaccination program, depending on the makeup of the employee of the employees, could hamper diversity efforts. You know, at at at the company. And again, as Susan mentioned before, you know there are morale issues and mental health issues that employers have to be aware of and have to consider in having a mandatory vaccination program. So again these are some of the considerations that the Department of Justice. Reminded, you know, employers that they should take into account before they come out with a mandatory vaccination program. 

Susan Kreeger 

I think it Doug, also this is this is more a question for you really the the question that Ken raised earlier about if you mandate vaccination and somebody has an adverse impact. What is? Or adverse reaction. What? The liability of the company, I mean where is that being addressed and focused? I know there was an attempt to put things in legislation to protect employers in certain ways, but I don’t know that that’s exists at this point, so. 

Ken Rowe 

And that and that’s it. 

Susan Kreeger 

What is the risk? 

Ken Rowe 

It was discussed, but it was never passed and you know it’s still subject to insurance policies, workers comp policies and, you know, negligence standards in the in you know through the courts. 

Susan Kreeger 

So it’s really an unanswered question. It’s a question that comes up with a lot of employers right now to do. I think. It’s it. One of the main questions that comes up. 

Ken Cerini 

And that’s got to be considered in. Their decision-making. 

Ken Rowe 

You could argue both sides. You could argue it’s negligent to come out with. It’s a nation program. You could argue it’s negligent not to negligence, not to. I mean, that’s, that’s where we. Are right now. 

Ken Cerini 

Doug, you mentioned something which to me sounded a little contradictory and I apologize. So you turned around and said that from an employer perspective, an employer, a Ken. Set a policy where everybody’s required to be. Vaccinated and then. Employees can choose not to be vaccine. Committed if they so choose to, and so we have these two contradicting components here. What rights legal rights does an employer? Have if they’ve. Established this policy and now an employee other than an employee who is under a protected category. What legal rights does the employer have with respect to these employees? 

Ken Rowe 

The employee, the employer, has the legal obligation to consider any request for an accommodation based upon a disability or religious objection in the absence of that, the employer has a right to mandate the vaccination policy has a right to terminate the employee if the employee refuses to become vaccinated. If there’s no. Come if there’s no accommodation issue, that’s the answer. 

Ken Cerini 

So what is constant or what constitutes then a medical condition that would be covered under this? I mean, you’ve got things like and. We talked about this. Earlier, before we got came on to this, but you got things like pregnancy, you’ve got some younger adults who are afraid with the R DNA shots that could have an impact on, you know. When they are in their childbearing years, having children and everything so. How does any of that fit into that whole category of disability, or is that not really considered a disability for the purposes of this? 

Ken Rowe 

Question and you know again these issues have not been addressed by the courts yet, but you know I can tell you that. The term disability has been addressed by courts throughout the country. The question is, is there a disability or not such so, for example, a compromised immune system is probably a disability if it can be so. Certain allergies would probably be a disability if it could be shown. An A a pregnant. Pregnancy is probably a disability if it can be shown, but somebody who a woman who’s merely in childbearing. You know, the year it’s that’s not necessarily a disability. You know again then if you have a situation. There that that employee has received some kind of advice from a doctor. Then the employer would have to consider that whether it’s a disability. I mean I I. Haven’t seen a case where the issue is whether it constituted a disability. For purposes of of refusing to have a vaccination mandatory vaccination. 

Ken Cerini 

And what about things like medical or mental things like anxiety or things like that? And how do those? Come into play. 

Ken Rowe 

You that again this issue has not been addressed by the courts, but generalized fears are not considered to be a disability under the disability. So the generalized fear of receiving the vaccination because of something the employee read is just not sufficient to constitute a disability and would not require a reasonable accommodation. 

Ken Cerini 

So switching gears a little, how are companies verifying that their staff have been vaccinated and or tested? And is there a legal way of doing that? 

Susan Kreeger 

I mean, companies can ask, they can ask whether you’ve been vaccinated or not, been vaccinated and there are. Apps that are being used, there are e-mail questions, there are different ways to gather that depending on the size of the organization, but it can, it can be asked whether you’ve been vaccinated. You don’t want to go too far. Down that road. Other than have you been vaccinated or not? I think another issue that comes up around that. Is who? Who knows it? Who’s doing the asking? Where is that coming from? So it’s you we like to see it come from the HR department and the people with the need to know that information. But there may be situations where a manager or supervisor needs to know about this. How do you manage that within the company if you have one? If you’re in a situation where? Vaccinated people do not need to wear masks, but unvaccinated, unvaccinated people do. How to do how does a supervisor police that? How does a supervisor know who has accommodation and they therefore will be wearing a mask and you know there are a lot of? There are a lot of different questions that will come up. On the manager supervisor level, so there is. And need to push that information out a little bit, but the importance of confidentiality there still remains. It’s only as a need to know that anyone else should know about this information should be kept in a confidential file separate from medical information. So all of those. Issues around keeping confidential medical information, I think still do apply, but you can ask whether someone has been vaccinated, but I. We are recommending certainly that it’s through the HR department that you manage this. 

Ken Rowe 

As Susan said, vaccine status is a is confidential medical information. So it’s just, you know who needs to know. The entire office doesn’t need to know. HR needs to know. Maybe a supervisor needs to know, but it’s it’s it has to be limited and kept confidential. 

Susan Kreeger 

It’s a difficult situation because you do know that there is a policy of, you don’t have to wear a mask if you’re vaccinated. But if you have an accommodation and you’re wearing a mask, people know possibly that there is some sort of medical information, but you’re not. You’re not giving that information out, and you’re not specifically saying what? The medical situation is. 

Ken Cerini 

Can you Grandfather existing staff and require a new staff coming on board to be vaccinated or, I mean, can you come up with some sort of modification in terms of how you deal with a vaccination policy so that you mandate it for certain staff and don’t mandate it? It for others. 

Susan Kreeger 

So I’ll jump in first on that, Doug certainly might have some backup on. On the legal side, but there are companies that are doing that. I believe Delta Airlines announced that they were going to require all new hires. I think united as well. That new hires be vaccinated and grandfathering existing employees use. I mean. With existing employees, you’re trying to use incentives to get people vaccinated, giving additional days off, giving some bonuses. So trying to at least bring in the new cohort of staff as vaccinated and then trying to incentivize. The current staff again, you know you’re creating two classes of employees that will need to be treated differently and that’s always a potential problem in the workplace. 

Ken Cerini 

Going back to the question you guys asked, a couple answered a couple of minutes ago and you said, Susan, I think that you can ask an employee if they’ve been vaccinated, but can you require them to? Show proof of. Vaccination or that’s not something you can do. 

Susan Kreeger 

I believe you can require proof of vaccination is. That, Doug, is that? 

Ken Rowe 

Yes, you, you. Can require proof and as you said Susan also that there are now. Apps and tracking systems. I mean, think about employers with thousands of employees. How is an HR department going to, you know, track, you know, vaccine status? So you know, this is sort of a, now a burden on you know HR departments to make sure. But the answer is yes they can. Require proof employees can require. 

Ken Cerini 

And I know when we were in the throes of COVID, everybody had the forms that they had to be filled out at the front that asked a bunch of questions, and there were temperature checks and everything else. Are you seeing that coming back? Can that still be mandated in a policy by employers? Can they? Do that just for non-vaccinated people, though that would be hard because then you’d have to share information regarding HIPAA like in terms of who has and hasn’t been vaccinated. So I think you’d have to do that globally for everyone, correct? 

Ken Rowe 

Not necessarily, but you know, it has the potential to create a discrimination issue. So you know it, it becomes tricky. But you know, getting to your question about whether we can start up with. You know temperature checks and the like. Again, employers can really mandate any policy that they think is necessary. Very to protect their staff and their you know customers. So if that entails temperature checks and social distancing and mask requirements then the employers can continue to mandate that. 

Susan Kreeger 

No, and I think that goes back to what we said early on. You know the law around this is not changed. It’s the facts and we’re going back to a situation where there is more transmission. In communities and we have to put some of these things back in place. 

Ken Cerini 

Does this do these rules? Sorry, I know that I’m kind of going. Like completely off. Script on some of this stuff, but there’s. Just so many. Awesome questions that come kind of come out of this. So you know we’re. We’re looking at employees, right? And we’ve been talking about employees, but a lot of companies and nonprofits use outside contractors. And if I’m utilizing a crew of outside contractors again, how does that? How can I mandate? Rules and policies. With respect to contractors, they might be either coming on-site or working for some of my customers. And how does that impact me, Doug, from an employment perspective, if I’m mandating policy? 

Ken Rowe 

Well, remember you know that by saying the word contractors, you’re really talking about a contract. So you could, I mean it. It’s it. It would be prudent for the company to actually include in their contract with the independent contract or the contractors. With a contracting company. All their employees or anybody who’s going to visit the site or work on the site are vaccinated and now is the time to do it. If they had a contract a year ago it was unlikely that you know that that language would have been included, but now it would be prudent. For employers to just be aware of it, and if that’s their requirement, then they should just include it in the contract. And if then the contractor provides the people who. If not vaccinated, then, then the company may have the right to terminate the contract and find the. 

Ken Cerini 

And again, how would? How would you know if someone keeps going back to that same thing? How do you verify? How do you know? 

Ken Rowe 

You can ask the contracting company to you know. 

Ken Cerini 

Support and proof. 

Speaker 

To provide. 

Ken Cerini 

And that’s not a that’s not a. 

Ken Rowe 

HIPAA issue no. No, it’s not a hippa issue. 

Susan Kreeger 

It’s not a HIPAA issue to ask whether someone has been for an employer to ask about vaccination status. 

Speaker 

Right. 

Ken Cerini 

I’m going to throw out a question from somebody said I work in the OP WD field which is the office of people with developmental disabilities. So we have to send out the mandatory weekly vaccination survey for the staff, contractors, and volunteers with proof of vaccination card. Which collects the information, but of course this information is kept confidential. I mean, is that the way it should be done in terms of? You know, in terms of like, you know, making sure that. We’re getting that information on a regular basis I. Mean what’s our requirement? Is there something that we should be doing on a regular basis, weekly checks or things like that or? Is it just? I check once. Do we know how long? I mean, nobody knows how long these vaccines last anyway. But you know, at what point in time do we need to get stuff renewed? 

Ken Rowe 

I’m I’m. 

Ken Cerini 

How does all that work? 

Ken Rowe 

Not sure I understand the question. Is this? Is this the question of whether this should be reported on a weekly basis? Is that is that? 

Ken Cerini 

I I think that I think the question is that they have a policy where they’re looking at things through weekly vaccination surveys of their staff and stuff and I guess is that sufficient if they’re getting you to know I guess PWD mandates it is it sufficient if they’re getting a. A survey of everybody and everybody’s filling out the survey on a regular basis. They don’t need to look at anything else. That’s it. They’ve met their requirement. 

Ken Rowe 

Yeah, I would. I would think so. But you know, if there are objections based on disability or religious, you know. Or religion, then. You know that would be the exception, but if the if the survey shows that everybody’s vaccinated. 

Susan Kreeger 

And is it an honor system? Is it are you required to show proof of vaccination on a regular basis? 

Ken Rowe 

Well, it sounds like they’re required to show proof, right? Is that? 

Ken Cerini 

Well, it’s actually sounded like it was the honor system, but maybe not. But I guess from an employer perspective, again I think it comes down to again, I think maybe it does make sense for them to start asking for information to substantiate or support. As opposed to just asking the question or? 

Susan Kreeger 

And and I I think you know I’m I’m thinking about how I would advise my client on this. 

Ken Cerini 

Or not. 

Susan Kreeger 

I would want I think different circumstances are required. Different needs. So if it sounds like in this situation there’s a high level of need to make sure people are vaccinated regularly. So I think that you want to make sure you would want to put in place something more than the honor system. You would want proof. I think that would. That would make sense. To do that. I think it there isn’t a legal reason not to something else that I think about when we put a lot. Of these. Practices in place also is making sure that you know what you’re going to do with that information too. Is somebody regularly looking at it? You don’t want that. Information sitting there without it. Be handled properly, not only protecting it as confidential information, but knowing what’s in there and and checking it and. Acting on it. 

Ken Cerini 

Who’s going to say, wouldn’t that? You know, if you are worried about that whole negligence stuff, I mean, if you collected the information and did nothing with it, I think that opens up you up to more exposure than if you never asked for the information to. Begin with, yeah. 

Ken Rowe 

Right. It’s one to have a policy. It’s another to enforce the policy. And by the way, regarding the question that was asked also, you know, you could have certain you you could have agency requirements, for example, the Office of the New York State Office of Mental Health may require. You know, certain reporting may have certain reporting requirements regarding vaccination status. I just don’t know. But then if it’s an honor system, you know, that may be subject to an audit down the road. So again, I think it’s important to just know what those regulations are and. Be prepared to be compliant and to prove compliance. 

Ken Cerini 

What responsibility do we have to our customers? So again, if if I’m an employee that’s forward facing or customer facing and I’m not vaccinated, what responsibility do I have to my customers to let my customer know that all of my staff are not necessarily vaccinated, vaccinated. Do I have any legal responsibility as an employer where I’m kind of interfacing with the outside world or not? 

Ken Rowe 

Fair question. I think that first of. All it it’s. It’s it’s sort of a a negligent standard. I mean is there, are you leading your customers to believe that that you know you’re you’re that everybody is vaccinated if you are and they’re not? Then that may be a misrepresentation, or fraud or or or or negligence scenario. You know on one hand, on the other hand, if a a company has a mandatory power. Let’s see then. It should be it. It should be a. They should utilize that policy for marketing purposes with their customers and let their customers know that that they’re in compliance, that they follow the rules and that their employees are vaccinated so that you know. It it it it it? Just short show. Those that you know that that that the IT shows the importance to the company of of safety and health to both their employees and. To their customers. 

Susan Kreeger 

And I think I saw, I think it was this morning that Apple announced they were going back to requiring masking of everybody going into certain stores as their employees as well as people entering the store. So again, as we speak, this is all changing and it’s I think people are looking again at at masking. 

Ken Rowe 

Right. 

Susan Kreeger 

You know we won’t get into the discussion around is it completely effective, but I think people are going back to them. 

Ken Rowe 

Well, just this week the CDC announced, which then they created even more. Solution, but they announced that even vaccinated people should wear masks in certain areas and you know, it looks like, you know, in the New York area, we’re going to be getting there. You know, we’re almost there. Are we getting there soon if this keeps up.

Susan Kreeger 

And you know, just generally and I know, Ken, I’m sure you have a lot more specific questions, but generally I I think a question for employers is. Now you need to think about why you wouldn’t have a mandatory vaccination policy. I think rather than thinking, do you want to have a, you know, it’s your choice whether you have it or not. I think you need. To give good. Good thoughts and discussion and analysis to why you would not have a mandatory vaccination policy. 

Ken Cerini 

When a. Potential employee comes in for a job interview. Am I allowed to ask that potential employee if they’ve been vaccinated and I can I use that in my decision making process as to whether or not to hire them? 

Ken Rowe 

The answer is yes. It’s not deemed to be a medical inquiry for purposes of the of the disability discrimination laws, and you can ask, and you can refuse to hire somebody if they’re not, if that’s your policy. 

Susan Kreeger 

Right. Yeah, I I agree with that. And I think it’s also important why you have you need to have a policy. So it it doesn’t seem arbitrary you you have a policy around it. 

Ken Cerini 

I mean, there’s a a bunch of other questions and I’ve kind of been trying to incorporate some of those into my questions as I’ve got along. When we were talking about disabilities and stuff, and I think, Doug, you mentioned something about a a doctor’s note, so. How detailed does that? Doctor Zone have to be what information needs to be in that doctor’s note to cover an employer? What happens if the doctor’s note says? You know, I excused Johnny from needing a a vaccination. And that’s it. 

Ken Rowe 

It’s it’s, it’s. It’s probably not enough that the lawyer is entitled to. Determine whether there’s a disability. The mere fact that there’s a doctor’s note doesn’t mean that the employee is entitled to an accommodation from the mandatory vaccination policy. Due to a disability, so the employer is entitled to inquire. About whether there’s a disability and then if they determine that there’s a disability, then they’d have to engage in the indirect the process to determine whether there’s a reasonable accommodation to be granted. But the doctors know enough, excusing the employee from having to receive the vaccine. It’s it’s not enough. 

Susan Kreeger 

And and wouldn’t there be some consideration about the burden on the organization to do the accommodation, which I know is you? Know can be. Tricky to argue, but there that as well as whether the accommodation poses a risk to others in your workplace. 

Ken Rowe 

Right. Right. So that’s part of the analysis. When you engage in the determination of whether an accommodation should be granted, whether there’s an undue burden on the employer and and whether that creates a hardship. So that that’s part of the analysis. But typically you know, depending on the the employees duties, you know if it’s administrative in nature, you wouldn’t think that working from home would be. You know an issue as an accommodation, but if you have a. Elevator mechanic, obviously. An elevator mechanic can’t work from home, so you know you’d have to determine. You know those those those considerations as well. 

Ken Cerini 

Is there anything else you guys want to share? We’re kind of running low. On time here, we’re almost up to an. There anything else you want to share before we? We cut this off. 

Ken Rowe 

Just one sentence I’m working from home, so if an accommodation is granted and employers are permitting their employees to work from home, I’ve talked about this issue. They have to remember that the that the Home Office is deemed to be the workplace for wage and hour purposes for for. Workers comp purposes and if an employee trips on the way to the. Room at their Home Office that could be covered by workers comp. They have to make sure they have all their insurance in place to protect them from any workplace negligence issue. You know, they have to make sure that. Their IT is up to snuff so that their trade secrets and confidential information. Are protected if the employee is working from their home computer, so again. And there’s a heightened sensitivity that employers should have when they do look at the request for an accommodation, which includes working. From home. 

Ken Cerini 

Does that include the need for? An insurance policy to list the address. Of each employee on the insurance policy as an additional address or no. 

Ken Rowe 

Maybe, but that should be coordinated with your insurance broker. 

Ken Cerini 

  1. Susan, anything else you want?

Susan Kreeger 

I think I would just. Leave people with the importance of having policies as difficult as it is to make decisions around these issues, and I think a lot of our conversations today shows that there are. There’s so many things up in the air, it’s important to have policies. Be flexible with those policies and also think about having. Some sort of a task force that focuses on watching what’s happening outside your company, watch what’s happening inside to make decisions quickly. That’s a helpful practice. 

Ken Cerini 

To help you from a negligence perspective, I’m assuming that that task force and. Any discussions that happen at the task force should be documented to show that you’re proactive in your approach. 

Susan Kreeger 

That’s always document what you’re doing, but I think it’s also important just to make decisions and be able to be flexible with. The decisions in a group with people who understand the issues and know what’s going on. 

Ken Cerini 

I I really, really want to appreciate you sharing all your expertise with us today. This was totally amazing on on such. Difficult topic again, if if people want to ask additional questions, I will provide the contact information for both Susan and Doug. Thank you everyone for tuning in today for this insightful discussion. We’re going to be back again on August 25th when our guests will be Fenton Joseph from Olive Brent. Digital. We’ll be discussing making your website ADA, I’m sorry compliant and other website recommendations to limit your company’s risk. Until then, I guess stay safe and we’ll see you guys next month. So thank you, everyone. Take care. 

Susan Kreeger 

Thank you.