Workplace Accommodations and 

Vaccine Mandates

October 20, 2021

12:30 p.m. - 1:20 p.m.

Zoom Webinar

As mandatory COVID-19 vaccines become more prevalent, many employers are asking what they can do if workers refuse. Some employers are firing workers who won't take the vaccine and others are requiring unvaccinated employees to submit to weekly testing. Under federal, state and local law, employers must provide reasonable accommodations and many employees are asking if they can legally receive exemptions from vaccine mandates.  In this course you will learn:

• To articulate the elements of a failure-to-accommodate lawsuit

• To understand the extent that a sincerely held religious belief can be challenged internally by an employer, within the interactive process / cooperative dialogue, and before an administrative / judicial tribunal 
• To define an undue hardship, under both Title VII of the Civil Rights Act and NYS Human Rights Law

Faculty:

Andrew Lieb, Esq., Lieb at Law, P.C.

Register online:  https://scba.org/?pg=events&evAction=showDetail&eid=229742&evSubAction=listMonth&calmonth=202110

Back in 2017, the Tax Cuts and Jobs Act capped SALT deductions at $10,000. 

To remind you, SALT deductions permit "taxpayers to deduct from their taxable income all the money they paid in state and local income and property taxes." As a result, it saves residents in high tax states from having to pay a lot of money to the federal government because they already paid a lot of tax to their state. States like New York, Connecticut, New Jersey, and Maryland have really high state and local taxes and therefore, residents of these states were hurt the most when Congress capped SALT deduction at $10,000. 

To fight for their citizens and for their sovereignty, these four states sued the federal government "asserting that Congress's new cap on the SALT deduction either is unconstitutional on its face of unconstitutionally coerces them to abandon their preferred fiscal policies." 

Stated otherwise, the states argued "that the SALT deduction cap violates both Article I, Section 8 and the Tenth Amendment [and the Sixteenth Amendment] because it coerces them to lower taxes or cut spending."

The states lost in New York v. Yellen and the $10,000 cap remains. 

According to the Second Circuit, the states failed to demonstrate "how the 2017 cap on the deduction unconstitutionally undermines their state sovereign authority over fiscal matters or their ability to raise revenue." 

Yet, it seems pretty intuitive, no?

Do you think this should go to the Supreme Court? 

If not, will a Democratic Congress, led by a Senator from New York, act to reinstitute the full SALT Tax Deduction, which has been the law of the land since 1913 when the 16th Amendment was ratified and Congress first became empowered to "lay and collect taxes on incomes, from whatever source derived without apportionment among the several states"? 

There are 3 major topics that you should be on the watch for as the Supreme Court's term starts on the first Monday of October, and they all center around the conservative's 6-3 majority on the bench. With their majority, will the conservatives limit abortion, expand gun rights, and protect religion? 

Here is what you should know: 

Abortion: Every pundit out there is telling you that Roe v. Wade is in danger during this term because Mississippi's 15-week abortion law will be heard in the case of Dobbs v. Jackson Women’s Health, which will be argued on December 1st. 

You should know that Roe sets the state's right to restrict abortion at the point of viability, except if abortion is necessary, in appropriate medical judgement. However, hasn't the point of viability shrunk over the years from when Roe was decided in 1973. On the other hand, as Carliss Chatman wrote, in the Washington and Lee Law Review, "If a Fetus Is a Person, It Should Get Child Support, Due Process, and Citizenship," no? It seems that you need to go all in with whichever belief you have as anything short seems like you will be full of pure political conjecture - when do you think that a fetus is first a person?  

Guns: New York State (NYS) went after the National Rifle Association (NRA) in Bankruptcy Court earlier this year, and, now, it's the NRA's turn to come after NYS. The NRA is before the Supreme Court by backing the New York State Rifle & Pistol Association in New York State Rifle & Pistol Association v. Corlett. The case asserts that NYS' concealed carry license law, which requires "proper cause" to carry a firearm, is unconstitutional. The case will be argued on November 3rd. 

You should know that "proper cause" means that an individual must demonstrate a special need for self-protection as distinguishable from that of the general community in order to carry in the State. Do you think that this makes sense as a standard or should concealed carry just be blanketly permissible, as the Plaintiff's argue is their right under the Second Amendment? On the other hand, don't unsafe public spaces offend the First Amendment's protections of assembly, association, and speech? It seems like we have an Amendment standoff and wouldn't restrictions on guns in public spaces be appropriate to make public spaces safe for democratic participation, as argued by the New York Civil Liberties Union in the case? What say you on this tough one? 

Religion: Flags and religion have been the biggest thing for the Republican Party since the 2020 elections and they are coming together in Shurtleff v. Boston where Boston flew a LGBT rights flag, but not one with the cross at city hall. Now, the Christians want their cross over the City, but what about the separation of Church and State in the First Amendment? 

You should know that freedom of religion is protected in the First Amendment, but that LGBT rights are not. However, is religion free if the state picks one over another? On that note, do you remember the separation of Gay and State being in the Constitution, because I don't? 

What Really Matters: The public is often looking for something that doesn't exist. As Justice Alito explained in response to tremendous outrage by abortion groups at the Supreme Court refusing to stop the Texas abortion law, those allegations are "false and inflammatory... "[w]e did no such thing and we said that expressly in our order." Instead, the Court ruled on procedure and that was lost on everyone who just reads salacious headlines with the word abortion in the title. If you actually read the decision, it's not about abortion at all, but, actually about something much more decisive and terrifying. 

You should know that Chief Justice Roberts explained that the real question in the case was "whether a state can avoid responsibility for its laws" by "essentially delegat[ing] enforcement to...the populace at large." Stated otherwise, the law let private citizens sue whoever they found to have violated the law. Taking that to its logical conclusion, should we deputize neighbors to sue each other for violating our laws? Should we be able to get $5,000 if we go after a neighbor for speeding on the highway? What about $7,500 for littering? Maybe, $25,000 for dealing drugs? Is that the future that we want? You decide.

As you may recall, all federal contractors now have vaccination requirements because of Executive Order 14042, as discussed in our blog here.

The Order requires that all contracts between federal contractor and subcontractor contain a clause ensuring compliance. However, the specifics of that clause were unknown until September 24, 2021, when the Safer Federal Workforce Task Force (SFWTF) published guidance, which requires:

• Vaccinations of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accomodation; 
• Compliance by individuals, including covered contractor employees and visitors, with the  guidance related to masking and physical distancing while in covered contractor workplaces; and 
• Designation by covered contractors of a person(s) to coordinate COVID-19 workplace safety efforts. 

In their best written papers to date, NYC school employees argued to the Supreme Court that they need a stay of the October 1, 2021 deadline to get vaccinated. 

They argue that the vaccination order prevents them from lawfully pursuing their occupation, which is a fundamental Due Process right. They claim that their alternative options of private school teaching, adult or continuing education teaching, or private tutoring are not pursuing their occupations completely. Nonetheless, they fail to address whether taking "their certifications and seek[ing] employment in any other public school system... in the State," would be pursuing their occupations completely, as NYC had argued before the Second Circuit. 

Regardless, the issue of whether the employees can still pursue their profession is where the case is likely to be decided. In their opposition before the Second Circuit, the City had argued and emphasized that Due Process protection is only afforded if "a plaintiff is completely prohibited from engaging in his or her chosen profession." However, the school employees now argue that "a violation of one’s fundamental right to pursue an occupation exists and gives rise to a due process claim where there is less than a complete inability to practice one’s profession." Which one is it? Who is right? 

What do you think the law should be? 

The other argument advanced by the school employees is that the vaccination order should have given them an option to opt out of vaccination for weekly testing because school staff should be treated equally to firefighters and police officers who have that option. While this seems like a good argument in an initial read of the papers, the school employees' argument that firefighters and police officers present a greater risk to spread COVID because they have contact with the public as opposed to school children who have less severe COVID fails the smell test when it's considered that adults can be vaccinated and those under 12 years of age cannot. However, we will see. 

A proposed rule at 12 NYCRR 141 will increase basic hourly minimum wage for non-farm workers outside of New York City, Nassau, Suffolk and Westchester counties, from $12.50 to $13.20. 

This proposed rule is in compliance with the minimum wage requirements at Labor Law 652(6). 

Although 70 cents may not be considered impactful by many, those struggling to afford monthly expenses, especially during the ongoing COVID-19 pandemic, will certainly benefit from such an increase. 

To voice your support or opposition to this proposed rule, comments should be sent to Michael Paglialonga, NYS Dept.of Labor at regulations@labor.ny.gov by November 29, 2021. 

NYS Senator Alexis Weik Sponsored a bill that provides eligibility for unemployment insurance for "unemployment due to such employee's choice not to receive a coronavirus vaccine."

While this bill is nowhere near being enacted, do you agree with the Senator?

Is this bill perpetrating the spread of a deadly virus by empowering people to make stupid decisions that will lead to deaths or is it the right move to support liberty - my body my choice?

You decide - tell your NYS representatives if you support this bill or strongly oppose it!

 According to the Second Circuit:

This Court entered a temporary injunction in the above-captioned case on Friday, September 24, 2021 for administrative purposes pending decision by a three-judge panel. IT IS HEREBY ORDERED that the September 24 injunction is DISSOLVED. IT IS FURTHER ORDERED that the motion for an injunction pending appeal is DENIED.

That said, not getting vaccinated does not equal automatic termination. 

As the City explained in their opposition to the injunction, "even employees who object to vaccination... can elect to stay home and retain their positions while being placed on unpaid leave with healthcare until early September 2022... And even if plaintiffs decline the extended leave option, the earliest any steps would be taken to terminate their employment would occur in December 2021." 

So, "employees who fail to submit proof of having received one dose of vaccination by September 27, 2021, are to be placed on unpaid leave with health insurance the following day. [internal citation] But an employee who submits proof of vaccination before November 30, 2021, will be able to return to work within a week. [internal citation] And an employee who submits proof of vaccination thereafter, but before September 5, 2022, will be able to return to work within two weeks." 

As to accommodations, the City is granting accommodations "for a religious or medical" needs. However, an underlying arbitration on the matter set "an alternative to any statutory reasonable accommodation process... for the 2021-2022 school year" where the deadline for "any requests to be considered as part of this process... [was] no later than Monday, September 20, 2021, by 5:00 p.m." Therefore, any school employee who has not yet applied for an accommodation, CANNOT get one. 

The City's opposition summed this entire situation up nicely where it stated, "Put bluntly, plaintiffs do not have a substantive due process right to teach children without being vaccinated against a dangerous infectious disease."

On September 25, 2021, Gov. Hochul released a comprehensive plan to address possible shortages within hospital and health care facilities in preparation for today's vaccination deadline. 

The plan includes the following: 

• Signing an executive order (if necessary) to declare a state of emergency that would increase workforce supply in the hospital and health care facilities and allow qualified health care professionals in other states or countries, recent graduates, and retired health care professionals to practice in New York;
• Exploration of ways to expedite visa requests for medical professionals; 
• Possible deployment of medically-trained National Guard members; &
• Partnering with the Federal Govt. to deploy Disaster Medical Assistance Teams ("DMATs") to assist local health and medical systems. 

The Tax Cuts and Jobs Act ("TCJA") caused the gift, estate, and gift-skipping transfer ("GST") tax exemptions to be $11.7 million per person in 2021. However, it is scheduled to decrease to $5 million, adjusted for inflation on January 1, 2026. Have you been planning for that cliff? 

Even scarier for estate tax planning is the Build Back Better Act, which is a projected $3.5 trillion COVID-19 plan proposed by President Biden to create jobs, cut taxes, and lower costs for working families, which includes lowering taxes, prescription drug, childcare, health care, and education costs. This law proposes to accelerate the estate tax exemption decrease by four (4) years, to January 1, 2022. 

Yet, the Build Back Better Act is not yet enacted into law. It is currently being marked up by the House Ways and Means Committee. 

Have you spoken to your congressperson about your feelings about speeding up the estate tax exemption cliff? 

Do you think it should be included in the Build Back Better Act? 

Stay tuned for updates concerning the Build Back Better Act in the upcoming weeks to follow...