Upon the legalization of cannabis in New York State, Section 201-D of the New York Labor Law ("Discrimination against the engagement in certain activities") was amended to prohibit employers from discriminating against employees for using cannabis outside of the workplace on their own time. 

The Department of Labor ("DOL") recently issued guidance (in the form of frequently asked questions) regarding certain elements of the law:

1. Employee Discipline: While employers may not discipline employees for using cannabis while off-duty and off-premises, employers may take action against employees who "manifest specific articulable symptoms of impairment" on the job. The DOL guidance defines "articulable symptoms of impairment" as "objectively observable indications that the employee's performance of the duties of the position are decreased or lessened." For example: operating heavy machinery in a reckless manner would likely qualify. The DOL further specified that the following are not, without more, "articulable symptoms of impairment": 
• positive test for cannabis;
• odor of cannabis; and/or
• other typical observable signs of cannabis use.
2. Use at Work: Employers may prohibit cannabis use and possession during all work hours which include breaks and meals periods, even if the employee leaves the worksite, and when an employee is "on-call."
3. Drug Testing: Employers may not test employees for cannabis outside of the following circumstances:
• It is required by state or federal law for a particular position;
• The employer would lose a federal contract or federal funding; or
• The employee manifests "specific articulable symptoms of impairment" (although an employer may not discipline an employee based solely on a positive test, as stated above).  

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."

Sharing Attorney Andrew Lieb's interview on Newsy - He addressed hearsay about vaccine mandates in the workplace such as: Do you get unemployment if you get fired for refusing vaccination?

Click HERE to watch the Interview

We have been inundated with calls this morning, since Andrew Lieb's appearances on Fox 5, LI News Radio, and WFAN this past week so we thought it was important to put some general information out there for those seeking a vaccine exemption based upon sincerely held religious beliefs. 

To be clear, a sincerely held religious belief DOES NOT automatically get you an exemption from a vaccination requirement.

Instead, your religious belief will, at best, get you an adjustment (known as an accommodation) to a vaccine requirement if such adjustment does not create an undue hardship for your employer. 

Let's break that down a little further.

First, the Equal Employment Opportunity Commission (EEOC) tells us what a sincerely held religious belief is means here. In summary, a sincerely held religious belief "concerns 'ultimate ideas' about 'life, purpose, and death.' Social, political, or economic philosophies, as well as mere personal preferences, are not 'religious'," 

As a result, if you want to claim a religious exemption, DO NOT make vaccine mandates POLITICAL. Instead, make your objection to vaccines SOLELY about your vision for life, purpose, and death. 

Moreover, don't be defeated if you are not a practicing member of an organized religion or if your religious leaders disagree with your ultimate ideas. Specifically, EEOC tells us that "new, uncommon, [beliefs, which are] not part of a formal church or sect, [and] only subscribed to by a small number of people, or that seem illogical or unreasonable to others" also qualify.  

That being said, there is another prong to the law that is being lost in the conversation today. 

An exemption to a vaccination requirement need only be given if it does not present an undue hardship to your employer.

Under federal law, employers are in the driver's seat because an undue hardship is anything that creates more than a de minimis cost. So, unless a worker works from home and wants to continue to work from home it will be a challenge to find a vaccine accommodation request that qualifies. Barriers, masks, tests, changed hours, modified locations, and the like will likely pose more than a de minimis cost and therefore, an accommodation request can be denied. But, that is ONLY under federal law. 

States, like New York, afford workers with more rights. In New York, a worker should receive an accommodation unless it imposes a significant expense or difficulty on an employer. That being said, accommodations that compromise the safety of others, such as co-works, customers, and the public, at large, always create undue hardships on employers. Therefore, workers should be highly conscious of public health when making their requests.

Putting this all together, a worker should carefully draft their accommodation request form and emphasize that they truly have a sincerely held religious belief by focusing away from politics and instead, on such issues as life, purpose, and death. Then, a worker's request should suggest alternatives to the vaccine such as limiting contact with others, regular COVID testing, and masking. Then, if the worker gets denied, they will have a good case for employment discrimination, which can and should be filed in court.

If that is the route that you are thinking, please hire a lawyer from the get go. Get any employment lawyer, at the start of it, because you are going to need to ensure that your initial accommodation request form (and other communications) do not kill your case before it's filed. You are also well advised to keep your politics out of it, out of social media, and away from your daily conversations. If you are truly seeking a religious exemption, politics aren't what is relevant, your right to worship freely is what matters.

Struggling employers can reduce their employee's hours and those employees can offset their lost wages with unemployment insurance (UI) under the Shared Work Program, which now offers even more flexibility thanks to S.4049, which Governor Hochul signed on Labor Day (9/6/21).

The Shared Work Program provides employers with an alternative to laying off workers during business struggles by allowing employees to receive partial UI benefits while working reduced hours. 

Previously, under the Shared Work Program, employees could only collect partial UI benefits for up to 26 straight weeks, regardless of what their maximum benefit entitlement is under UI. 

Now, the new legislation changes the cap on shared work benefits from 26 straight weeks to an amount of time equal to 26 weeks' worth of benefits. In other words, employees can now collect UI benefits until they have reached their maximum benefit amount under UI. 

This change will ultimately extend the length of time a worker will receive benefits under the Shared Work Program.

According to Gov. Hochul, "these bills [workforce legislation package] will ensure that workers receive fair wages, benefits, and are kept safe in their work places." 

How big of an impact do you think this new legislation will have on workers and employers going forward? 

The New York State Department of Labor has finally issued the long awaited Model Airborne Infectious Disease Exposure Prevention Plan.

As a refresher, on May 5, 2021, Governor Cuomo signed the New York Health and Essential Rights Act ("NY HERO Act") into law requiring employers to take various measures to protect employees in the event of a future airborne infectious disease outbreak. 

One of those measures was to adopt a prevention plan. Now that the NYSDOL released the model plan, employers have until August 5, 2021 to either customize and adopt the model plan or create their own plan which, at a minimum, meets the requirements of the model plan.

While employers must immediately adopt a plan, it is important to note that, per the NYSDOL website, the plan is not currently required to be in effect until the New York State Commissioner of Health designates an infectious disease as a "highly contagious communicable disease that presents a serious risk of harm to the public health." 

The United States Court of Appeals for the Second Circuit of New York recently dismissed a lawsuit filed by four African American firefighters, pursuant to the American with Disabilities Act, claiming that the FDNY discriminated against them by denying their request for a reasonable accommodation to grow facial hair.

In Bey et al. v. City of New York et al., the four African American firefighters suffered from pseudofolliculitis barbae ("PFB"), a skin condition most commonly affecting African American males, which causes skin irritation after shaving (The lower court previously dismissed the plaintiffs race discrimination claims). The Second Circuit ruled that the FDNY did not discriminate against the firefighters because they were abiding by a binding safety regulation requiring firefighters to be clean shaven in areas where a respirator seals against the skin on their faces. The Court further stated that any challenge to this regulation should be directed to OSHA (Occupational Safety and Health Administration), not their employer. 

Do you agree with the decision? 

New legislation, which passed the NYS Senate and Assembly on June 9, 2021 and is awaiting signature by Governor Cuomo, will require employers who monitor employees' e-mail or internet usage on any electronic device (e.g. phone or computer) to provide notice of such monitoring to all employees.

The notice must be in writing (acknowledged by the employee), provided to all employees upon hiring and posted in the workplace. 

The bill further provides that the notice must contain the following:

"An employee shall be advised that any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means." 

Employers who fail to provide the required notice are subject to fines of between $500- $3,000 per offense. 

The bill is effective 180 days after Governor Cuomo signs the bill into law.

The United States District Court for the Southern District of Texas held that the Houston Methodist Hospital's policy requiring employees to be vaccinated against COVID-19, under the threat of termination, is lawful.

In Bridges et al. v. Houston Methodist Hospital et al., 117 hospital employees sued the hospital for "unlawfully forcing its employees to be injected with one of the currently-available vaccines or be fired." The plaintiffs alleged that they were wrongfully terminated and compared the vaccination requirement to "forced medical experimentation during the Holocaust."  

Citing to EEOC guidance (which is not binding) stating that employers can mandate COVID-19 vaccinations subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs, the Court dismissed plaintiffs' wrongful termination claim (Texas law only protects employees from being terminated for refusing to commit a criminal act). The Court also dismissed the plaintiffs' claims that requiring vaccinations is against public policy because the employees were not coerced to take the vaccine (clearly distinguishing a mandatory vaccination policy from plaintiffs' absurd example of forced injections in concentration camps). Rather, the hospital is trying to protect against a spread of COVID-19 and employees "can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else." The Court equated a mandatory vaccination policy to changing an employee's schedule or office location in the sense that "every employment includes limits on the worker's behavior in exchange for his remuneration. That is all part of the bargain." 

This is the first of likely many challenges to employer mandatory vaccination policies. Do you think permitting employers to implement mandatory vaccination policies is against public policy? If so, why?

As a result of a recent United States Supreme Court decision, employers can no longer use the Computer Fraud and Abuse Act of 1986 ("CFAA") as a tool to prevent unauthorized use of its computer systems. 

The CFAA makes it illegal to "access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter."

In Van Buren v. United States, No. 19-783, the Supreme Court held that a police officer did not violate the CFAA when he ran an unauthorized license plate search in exchange for money. Relying on the language of the statute, the Court reasoned that the CFAA makes it illegal to access information an individual is not permitted to obtain, but does not prohibit improper use of information or databases which an individual has the authority to access. 

Justice Barrett used the following example to clarify the Court's holding: If an individual is authorized to access a specific folder on a computer, he/she does not violate the CFAA if he/she accesses the folder for an unauthorized purpose. However, if an individual accesses a separate folder on the computer to which he/she does not have authorized access, such conduct violates the CFAA.

In light of the Supreme Court's decision, employers should consider the following to protect against improper/unauthorized use of its computers/databases:

1) Strengthening policies regarding unauthorized use of computers/databases. While unauthorized use is no longer unlawful under the CFAA, employers are free to implement restrictive policies regarding unauthorized use of computers and discipline employees who violate the policies. 

2) Taking further steps (e.g. secure passwords) to safeguard documents/information to which employers do not want employees to access.

3) Entering into confidentiality/unauthorized use agreements with employees.

To provide further incentive for people to get vaccinated, The New York State Department of Labor recently issued guidance permitting employees to use paid sick leave to recover from side effects of the COVID-19 vaccine. The New York State legislature previously passed a law entitling employees to paid leave to receive vaccinations.

New York State law requires employers with five or more employees (or net income of more than $1 million dollars) to provide 40 hours of annual paid sick leave to its employees. New York Labor Law Sec. 196-b permits employees to use sick leave "for mental or physical illness, injury, or health condition, regardless of whether it had been diagnosed or requires medical care at the time of the request for leave." 

The DOL clarified that Section 196-b requires employers to "honor the employee's desire to use accrued sick leave for recovery of any side effects of the COVID-19 vaccination."