On March 16, 2022, the NYS Division of Human Rights published Revised Rule Making, HRT-15-21-00005-RP (proposed 19 NYCRR 466.15), with respect to the notice that tenants must receive, which explains their rights to receive reasonable modifications and accommodations in housing. 

The proposed regulation provides that:

• Real Estate Brokers are charged with making this disclosure "[u]pon the first substantive contact." 
• Housing providers are charged with providing this disclosure to current and new tenants. 
• Housing providers must post the notice on all of their websites.

Here is what the notice should state:

NOTICE DISCLOSING TENANTS’ RIGHTS TO REASONABLE ACCOMMODATIONS FOR PERSONS WITH DISABILITIES 

Reasonable Accommodations

The New York State Human Rights Law requires housing providers to make reasonable accommodations or modifications to a building or living space to meet the needs of people with disabilities.

For example, if you have a physical, mental, or medical impairment, you can ask your housing provider to make the common areas of your building accessible, or to change certain policies to meet your needs.

To request a reasonable accommodation, you should contact your property manager by calling —or —, or by e-mailing — * . You will need to inform your housing provider that you have a disability or health problem that interferes with your use of housing, and that your request for accommodation may be necessary to provide you equal access and opportunity to use and enjoy your housing or the amenities and services normally offered by your housing provider.

A housing provider may request medical information, when necessary to support that there is a covered disability and that the need for the accommodation is disability related.

If you believe that you have been denied a reasonable accommodation for your disability, or that you were denied housing or retaliated against because you requested a reasonable accommodation, you can file a complaint with the New York State Division of Human Rights as described at the end of this notice. 

Specifically, if you have a physical, mental, or medical impairment, you can request: 

• Permission to change the interior of your housing unit to make it accessible (however, you are required to pay for these modifications, and in the case of a rental your housing provider may require that you restore the unit to its original condition when you move out); 
• Changes to your housing provider’s rules, policies, practices, or services;
• Changes to common areas of the building so you have an equal opportunity to use the building. The New York State Human Rights Law requires housing providers to pay for reasonable modifications to common use areas.

Examples of reasonable modifications and accommodations that may be requested under the New York State Human Rights Law include:

• If you have a mobility impairment, your housing provider may be required to provide you with a ramp or other reasonable means to permit you to enter and exit the building.
• If your healthcare provider provides documentation that having an animal will assist with your disability, you should be permitted to have the animal in your home despite a “no pet” rule.
• If you need grab bars in your bathroom, you can request permission to install them at your own expense.
• If your housing was built for first occupancy after March 13, 1991 and the walls need to be reinforced for grab bars, your housing provider must pay for that to be done.
• If you have an impairment that requires a parking space close to your unit, you can request your housing provider to provide you with that parking space, or place you at the top of a waiting list if no adjacent spot is available.
• If you have a visual impairment and require printed notices in an alternative format such as large print font, or need notices to be made available to you electronically, you can request that accommodation from your landlord.

Required Accessibility Standards All buildings constructed for use after March 13, 1991, are required to meet the following standards:

• Public and common areas must be readily accessible to and usable by persons with disabilities;
• All doors must be sufficiently wide to allow passage by persons in wheelchairs; and
• All multi-family buildings must contain accessible passageways, fixtures, outlets, thermostats, bathrooms, and kitchens.

If you believe that your building does not meet the required accessibility standards, you can file a complaint with the New York State Division of Human Rights.

How to File a Complaint A complaint must be filed with the Division within one year of the alleged discriminatory act. You can find more information on your rights, and on the procedures for filing a complaint, by going to www.dhr.ny.gov, or by calling 1-888-392-3644 with questions about your rights. You can obtain a complaint form on the website, or one can be e-mailed or mailed to you. You can also call or e-mail a Division regional office. The regional offices are listed on the website.

The public can comment on this Revised Rule Making until April 30, 2022 by email to  Caroline.Downey@dhr.ny.gov with subject of I.D. No. HRT-15-21-00005-RP

We always tell discrimination victims that you are protected from retaliation. In fact, if you are retaliated against, you can sue for that too. Interestingly, if you are retaliated against on an alleged discriminatory event, which is ultimately found in court to not constitute discrimination, you can nonetheless recover damages for the retaliation on that non-discrimination.

Retaliation protection is really important so that victims have a voice and are not silenced by powerful companies. 

Yet, the bounds of retaliation are rarely defined and employees often wonder what an employer can do against them if they complain about discrimination.

On March 16, 2022, Governor Hochul clarified the answer to that question by signing S5870 into law and thereby expanding the definition of retaliation, at Executive Law 296(7), to now include: 

Disclosing an employee's personnel files because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article, except where such disclosure is made in the court of commencing or responding to a complaint in any proceeding under this article or any other civil or criminal action or other judicial or administrative proceeding as permitted by applicable law.

However, as always, clarity brings more confusion. While the law's stated purpose is "[t]o clarify that release of personnel records to discount victims of workplace discrimination counts as a retaliatory action...," the law fails to define "personnel records" and, as such, questions remain.

Specifically, how many small / medium businesses even record "personnel record"?

Is a boss disclosing their memory of an event, which is unrelated to the discrimination complained of, a personally record? 

Is the work product of a discriminatory complainant a personnel record?

All we can say is that discrimination laws are designed to protect victims. So, if you are confused, assume that everything related to the employee is a personnel record until a court narrows that definition when this issue is eventually fought out before a judge / jury.

Until then, more protections for victims is a welcome sign in NYS that discriminatory retaliation won't be tolerated.

Last week, we reported that Caregiver Discrimination Protection passed the NYS Senate. 

Interestingly, this week, the US Equal Employment Opportunity Commission (EEOC) published an update on Caregiver Discrimination Under Federal Employment Discrimination Laws. 

This document reminds employers and employees that "it would violate the law if an employer refused to hire a female applicant or refused to promote a female employee based on assumptions that, because she was female, she would (or should) focus primarily on caring for her young children while they attend school remotely, or on caring for her parents or other adult relatives."

In fact, there are 18 FAQ reminders that should be studied by anyone who has the responsibility to balance caring for another with their job responsibilities. 

Also, employers should review the document and focus in on the Best Practices for Workers with Caregiving Responsibilities to update their EEO policies. 

On 3/15/2022, 3 important workplace discrimination laws made their way to the NYS Governor's Desk to be signed and enacted. 

A7101 - Prohibits the release of personnel records as a retaliatory action against employees who complain or assist in proceedings involving unlawful discriminatory practices by employers.

On March 8, 2022, S5063 was passed by the NYS Senate. It's now with the Assembly. 

The law would prohibit employers from discriminating against individuals based on such individual's status as a caregiver. 

This law will fill an important protection for employees who typically argue familial status discrimination or sex discrimination in such circumstances, but both categories really are like fitting a square peg in a round hole. 

As the Bill's Justification explains, "18 percent of adults in the United States have caregiving responsibilities" and these people need access to reasonable accommodations in limited circumstances, such as supervising "the diagnosis, care, or treatment of mental or physical illness, injury, or health condition of the care recipient." 

In NYC, caregiver status is already protected. So, if you work there, you already have rights. 

According to the NYS Bar Association, in Ethics Opinion 1237, "A lawyer may not accept the referral of real estate closings from a real estate agent who is associated with a real estate company owned by the lawyer where the real estate agent and the real estate company will split the brokerage commission earned on the real estate transaction, regardless of whether the attorney agrees to waive in favor of the real estate clients the portion of the real estate commission due to his real estate agency."

So, a broker / lawyer cannot take referrals of closings from an agent who works at that lawyer's / broker's real estate brokerage. It does not matter if the lawyer "waived any brokerage commission" he would otherwise receive in favor of his client. 

The reason is that his agent will nonetheless receive a commission split and that constitutes the payment for referrals. 

The takeaway is that an attorney should choose to do closings or work in brokerage, not both.

On March 7, 2022, the NYS Senate joined the Assembly to pass a bill (now going to the Governor to be enacted), which establishes a hotline for complainants of workplace sexual harassment. 

The Bill's Justification explains that "[n]early 75% of all sexual harassment goes unreported," and it envisions that this toll-free hotline, available, "at minimum, Monday to Friday from 9 a.m. to 5 p.m.," which will "connect complainants with experienced pro-bono attorneys who will help make them aware of their legal rights and advise them on the specifics of their individualized cases," will result in more reported claims. 

The issue with this STUPID Bill is two-fold:

1. Who needs a toll-free line in 2022? Aren't we past the time when telephone companies charge per second of use? Don't most people utilize VoIP or cell phones? What decade is the NYS Government operating in? Have they heard of the world wide web? 
2. Why are they referring to pro-bono (free) attorneys on a type of case where the plaintiff can recover their attorneys' fees from the plaintiff, by statute, and almost no plaintiffs pay their attorneys hourly fees? Sounds like a lipservice law to us, no?

 

Victims of sexual harassment and sexual assault can now proceed in a class action, with other victims, and can also litigate their case in court, individually or collectively, regardless of having previously executed an arbitration agreement. 

This is really important because powerful companies have traditionally forced their employees and independent contractors to sign predispute joint-action waivers, which prevent victims from bringing joint, class, or collective actions against those companies for sexual harassment and sexual assault. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 invalidated such waivers. Now, victims can work collectively and take on powerful companies in court in the same way that a union equalizes employee bargaining power at the proverbial negotiating table.

The Act also invalidates mandatory arbitration agreements, which heavily favor companies who regularly pay the same arbitrators, know their rules, have relationships, and win a vast majority of the time.

To learn more about this new law, here is an audio recording of my appearance on The Jay Oliver Show explaining the importance of the law right after it was passed by the Senate. To be clear, the recording misstates the law's effectiveness to past claims. The law only applies to claims that "arise[] or accrue[] on or after the date of enactment," which was March 2, 2022. 

On December 22, 2022, we told you about a new real estate continuing education course requirement on cultural competency and explained that we sought guidance from the Bill Sponsor, James Gaughran, on what was envisioned to be taught under this topic. 

Now, there is a new law that defined cultural competency as "understanding cultural norms, preferences and challenges within our diverse communities."

However, here is the million dollar question - How does this understanding translate into practice where a real estate broker / salesperson cannot change their practice based on their understanding of such cultural norms, preferences and challenges because if they do, they will have engaged in actionable real estate discrimination? 

Anyone? 

On December 10, 2021, we told you about another initiative by New York State to combat discrimination in real estate where, effective as of December 21, 2021, a $30 fee has been added for real estate broker / salespersons licenses to cover the costs of the Attorney General to fund fair housing testing throughout NYS. 

Now that law has been changed to "clarify provisions concerning the disposition of surcharges collected by the department of state on licenses for real estate professionals."

Rather than the surcharge being "payable to the office of the attorney general," now, it is required to be "deposited into the anti-discrimination in housing fund."

This change is effective as of March 26, 2022. 

New law establishes Office of the Advocate for People with Disabilities. The Office assures that disabled people are afforded the opportunity to exercise all of the rights and responsibilities accorded to citizens of New York.

Operating under the Department of State, the Office shall advise and assist state agencies in developing policies designed to help meet the needs of the disabled by:

• Coordinating the implementation of the Americans with Disabilities Act;
• Ensuring that state programs do not discriminate against disabled people; 
• Ensuring that programs provide appropriate services for disabled individuals; and 
• Working with state agencies to develop legislation and potential regulatory changes.

Landlords should be actively removing barriers to access so that this new Advocate doesn't bring suit against them for violations of the Americans with Disabilities Act (ADA). 

Effective January 21, 2022, there will be an increase in the fees for real estate salesperson, real estate broker and real estate branch office licenses. The new fee for salespersons will be $65, the fee for brokers and branch offices will be $185. This increase applies to both initial and renewal applications. 

The NYS DOL published new regulations, retroactively effective to January 1, 2022, as an emergency rule to implement the New York Health and Essential Rights Act (NY HERO Act).

The regulations requires private sector employers to create an Exposure Prevention Plan to eliminate or minimize employee exposure to airborne infectious disease agents, which includes the COVID-19 virus and its variants.

The measure sets forth requirements that employers select and obtain exposure controls appropriate for the exposure risks. These controls must be included in the employer’s Exposure Prevention Plan. As to the plan, the NYS Department of Health has developed a new Model Airborne Infectious Disease Exposure Prevention Plan (Template) and various industry specific model plans (Templates) for prevention of airborne infectious disease.

Employers must enact compliant plans immediately. 

What are the Continuing Education requirements for real estate agents in NY?

As of 7/1/2021. All licensees must receive 22.5 hours of continuing education every 2 years to stay licensed. NY Real Estate Brokers and Salespersons that were previously exempt from Continuing Education will no longer be exempt and will need to have completed the full CE requirements, including the new subjects prior to submitting a renewal on or after 7/1/2021. The 22.5 hours must include:

• 3 hours on fair housing &/or discrimination
• 2.5 hours on ethical business practices
• 1 hour on recent legal matters governing the practice of real estate brokers and salespersons in New York, which may include statutes, laws, regulations, rules, codes, Department of State Opinions and Decisions, and Court Decisions
• 1 hour on the law of agency (2 hours in the initial 2-year cycle)

As of 4/20/2022: All licensees must receive 22.5 hours of continuing education every 2 years to stay licensed. The 22.5 hours must include the following topics:

• 3 hours on fair housing &/or discrimination
• 2.5 hours on ethical business practices
• 1 hour on recent legal matters governing the practice of real estate brokers and salespersons in New York, which may include statutes, laws, regulations, rules, codes, Department of State Opinions and Decisions, and Court Decisions
• 1 hour on the law of agency (2 hours in the initial 2-year cycle)
• 2 hours on Cultural Competency

As of 6/19/2022: All licensees must receive 22.5 hours of continuing education every 2 years to stay licensed. The 22.5 hours must include the following topics:

• 3 hours on fair housing &/or discrimination
• 2.5 hours on ethical business practices
• 1 hour on recent legal matters governing the practice of real estate brokers and salespersons in New York, which may include statutes, laws, regulations, rules, codes, Department of State Opinions and Decisions, and Court Decisions
• 1 hour on the law of agency (2 hours in the initial 2-year cycle)
• 2 hours on Implicit Bias Awareness and Understanding
• 2 hours on Cultural Competency

All healthcare facilities that receive Medicare and/or Medicaid funding must ensure that their covered saff are vaccinated against COVID after the Supreme Court stayed injunctions that were preventing the implementation of the Department of Health and Human Services (DHHS) Interim Final Rule.

To be clear, the rule does not cover those healthcare workers with medical and religious exemptions and those who telework full-time. 

In permitting the mandate to be implemented, the Supreme Court found exactly what it said was lacking in the OSHA vaccine mandate case, to wit: specific language in a statute authorizing Biden's Executive Branch to impose a mandate. 

According to the Court, the core mission of the Department of Health and Human Services "is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety." In fact, the Court found that “infection prevention and control program designed . . . to help prevent the development and transmission of communicable diseases and infections” are precisely within the Department's charge. 

In addressing its divergent opinions, between OSHA and Healthcare, the Supreme Court explained:

The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.

In staying the OSHA vaccine mandate, the Supreme Court wrote "that the Secretary lacked authority to impose the mandate."

As the Court explained "permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization." The problem, as set forth by the Supreme Court, was that the mandate was indiscriminately applied. However, and to be CLEAR, the problem was not that it was unconstitutional, violated federalism, or anything else. 

The Supreme Court did not rule that either:

• The Federal Government cannot issue a nationwide vaccine mandate; or 
• Biden's Executive Branch cannot issue a nationwide vaccine mandate. 

In fact, the concurring opinion set it simply, "that power rests with the States and Congress, not OSHA."  

That is not to say OSHA has no power to regulate workplaces with respect to COVID. The Court carefully said OSHA does have power by writing that it was "not [] say[ing] OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible." As such, the Supreme Court invited a new mandate to be issued by OSHA and suggested that it targets COVID researchers or risks associated with crowded / cramped environments. 

As the concurring opinion explained, this case was decided on the Major Questions Doctrine, "'[w]e expect Congress to speak clearly' if it wishes to assign to an executive agency decisions 'of vast economic and political significance.'" Here, Congress did not clearly grant OSHA the power to do make this indiscriminate mandate. 

The fact that they didn't doesn't mean that they can't. Should Congress authorize OSHA now? 

If you are a NY Licensed Real Estate Salesperson, Broker, or Associate Broker - CE Requirements are changing in 2022. There are new topics required for license renewal.  Lieb School is in the final stages of getting the newest topic of Cultural Competency licensed and will update the course catalog in the next few weeks. We have all other topics available on our course catalog. 

What are the Continuing Education requirements for real estate agents in NY?

As of 7/1/2021. All licensees must receive 22.5 hours of continuing education every 2 years to stay licensed. NY Real Estate Brokers and Salespersons that were previously exempt from Continuing Education will no longer be exempt and will need to have completed the full CE requirements, including the new subjects prior to submitting a renewal on or after 7/1/2021. The 22.5 hours must include:

• 3 hours on fair housing &/or discrimination
• 2.5 hours on ethical business practices
• 1 hour on recent legal matters governing the practice of real estate brokers and salespersons in New York, which may include statutes, laws, regulations, rules, codes, Department of State Opinions and Decisions, and Court Decisions
• 1 hour on the law of agency (2 hours in the initial 2-year cycle)

As of 4/20/2022: All licensees must receive 22.5 hours of continuing education every 2 years to stay licensed. The 22.5 hours must include the following topics:

• 3 hours on fair housing &/or discrimination
• 2.5 hours on ethical business practices
• 1 hour on recent legal matters governing the practice of real estate brokers and salespersons in New York, which may include statutes, laws, regulations, rules, codes, Department of State Opinions and Decisions, and Court Decisions
• 1 hour on the law of agency (2 hours in the initial 2-year cycle)
• 2 hours on Cultural Competency

As of 6/19/2022: All licensees must receive 22.5 hours of continuing education every 2 years to stay licensed. The 22.5 hours must include the following topics:

• 3 hours on fair housing &/or discrimination
• 2.5 hours on ethical business practices
• 1 hour on recent legal matters governing the practice of real estate brokers and salespersons in New York, which may include statutes, laws, regulations, rules, codes, Department of State Opinions and Decisions, and Court Decisions
• 1 hour on the law of agency (2 hours in the initial 2-year cycle)
• 2 hours on Implicit Bias Awareness and Understanding
• 2 hours on Cultural Competency

Since 2021, federal employees have been protected from workplace discrimination by the Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020, which added protections, notice, and reporting to the No FEAR Act.

To implement the Cummings Act, the Office of Personnel Management (OPM) published proposed rules on January 6, 2022, which are currently in the public comment period. 

These rules include:  

• Whistleblower and retaliation protections;
• Notice of findings of intentional acts of discrimination to be made on a publically accessible internet page;
• Agencies to submit annual reports to the Director of OPM;
• Agencies to submit disciplinary action reports to Equal Employment Opportunity Commission (EEOC);
• Agency employees found to have intentionally committed discriminatory acts, including retaliation, will have notations of the discriminatory acts added to the employee's personnel record;
• New public disclosure obligations; and
• Federal agencies to add new trainings for all employees about their rights and remedies under law.

Suffolk County renters: BEWARE! Those looking to rent in Suffolk County, New York should proceed with caution when searching for a rental home. 

In an effort to protect Suffolk County tenant/residents from rental fraud, the County Legislature has amended Local Law No. 30-2021. Rental fraud is committed when a person or entity leases a residential or commercial property to another, when that person or entity does not have an ownership interest in the property or authorization from the owner to lease the property. Properties that are vacant or foreclosed upon are typically the kinds of properties that are used for rental fraud. 

The law now states that "persons seeking to rent or lease real property MAY [emphasis added] demonstrate ... ownership interest or authorization to rent, lease or sublet real property." Ownership interest for real property can be demonstrated to a potential tenant via a fully signed and valid deed or a fully signed lease agreement. Similarly, a person can demonstrate they have authorization from the property owner to rent or lease the property by providing a potential tenant with proof of agency. 

The problem with this new law is that the Legislature does not actually require those looking to lease out their real property to prove that they are indeed the owner of the property. If the Legislature actually wants to protect potential tenants from rental fraud, they need to revise this law immediately and require that persons seeking to rent out real property provide proof of ownership or agency authorization incident to such rental.

Those who commit rental fraud and are caught will face penalties subject to a fine of up to $1,000.00 and/or up to six months imprisonment. Do you think the punishment fits the crime? 

In the meantime, potential tenants can and should take additional steps to protect themselves where the Legislature has fallen short. As rental fraud has become a hot topic in Suffolk, potential tenants should do their research, as well as request proof of ownership from those who are leasing properties. If a lessor refuses or cannot provide proof of ownership or agency authorization, it may be best to continue the house hunt.

Starting on April 30, 2022, the annual interest rate on money judgments arising out of consumer debt will be reduced from 9% to 2%.

The new law amends New York Civil Practice Laws and Rules §5004.

It's important to note that if the previous 9% interest rate applied to an ongoing judgment, the creditor has up to sixty (60) days from 4/30/2022 to issue and amend the interest rate to 2%. Any money collected in excess of the judgment amount shall be returned to the debtor. However, if the money was collected prior to 4/30/2022 to satisfy the debt in in full or in part, then the debtor has no right to a refund or remedy.

A new law seeks to reduce bias against injured workers in low-income brackets who cannot afford attorneys' fees.

New York's Workers’ Compensation law has been amended to include awarding attorneys’ fees for the following services:

• 1/3^rd of one week’s compensation for awards made directing the continuation of weekly compensation benefits for temporary total or partial disability;

• 15% of the increased compensation when an award is made that increases the amount of compensation awarded or paid for a previous period(s) of temporary total or partial disability;

• 15% of the compensation due in excess of the employers/carrier’s previous payments when an award is made for loss of use or permanent facial disfigurement;

• 15% of the compensation due in excess of the employer or carrier’s previous payments plus a sum equivalent to 15 weeks of compensation when an award is made for permanent total disability or permanent partial disability;

• 15% of the compensation due in excess of the employer/carrier’s previous payments plus a sum equivalent to 15 weeks of compensation when an award is made for death benefits; and

• 15% of any benefits to be paid by the employers/carrier when an award is made under a waiver agreement.

New York State has adopted Sick Leave requirements for employers to follow under NY Labor Law § 196-b. With the new rule having become effective on 12/22/21, employers and their HR teams need to get up to speed quickly. 

The new rule requires employers of 3 different categorical sizes to provide a minimum number of paid sick leave hours for employees depending on the size of the employer and its net income. 

The rule does the following:

• Establishes standards of how employees shall accrue sick leave at a rate of no less than 1 hour per every 30 hours worked; 
• Protects employees from having to disclose confidential health information to employers as a condition to taking sick leave; 
• Sets up conditions for employees carrying over unused sick leave over to the following calendar year; 
• Creates protections to prevent employers from retaliating/discriminating against employees for exercising his/her sick leave rights; 
• Requires employers to provide written records of sick leave accrual upon employee request; 
• Requires that employees returning from sick leave be restored to their position prior to the sick leave with the same pay & other terms / conditions of employment; & 
• Allows for collective bargaining agreements to be entered into that provides for paid sick leave. 

Before the rule became effective, employers commented and expressed their concerns, under the regulatory process, and the government's responses have clarified the following facts:

• Newer employees will abuse sick leave because the rules allow employees to immediately use sick leave upon accrual; 
• Carrying over unused sick leave days to following years is problematic (per DOL, employers may either: (1) give employees the option to voluntarily elect to use & receive payment for paid sick leave prior to the end of a calendar year or carry over unused sick leave; or (2) only allow employees to carry over unused sick leave);
• Conflicts can arise between sick leave requirements and other leave policies if not clarified in the employer's policy manual;
• Employee abuse systems need to be in place within an employer's policy manual or issues will arise; and
• Collective bargaining agreements need to be addressed to comply with the new rule.

This new sick leave rule will continue to raise concerns by employers and employees, but proactive employees with great policy manuals / collective bargaining agreements, which have been updated to reflect the new rule will win the day. Otherwise, there are going to be a lot of discrimination and retaliation claims when sick leave issues arise. 

1) Vaccine/Mask Mandates

• NYC Vaccine Mandate

NYC, via an Order of the Commissioner of Health and Mental Hygiene, now requires that all employers ensure that its workers are vaccinated against COVID-19. All private sector workers had to receive their first dose of a COVID-19 vaccine by December 27, 2021 and a 2nd dose 45 days later. Employers are further required to verify and keep a record of each worker's proof of vaccination. Workers may seek a reasonable accommodation for a qualifying disability or sincerely held religious belief. Violators may be penalized $1,000 per violation.

• OSHA (Federal) Mask Mandate

Citations (with large monetary penalties) for non-compliance with the OSHA vaccine mandate for all employers with 100+ employees is scheduled to begin on January 10, 2022. OSHA's mandate requires that qualifying employers ensure that all employees "be vaccinated or wear a protective face covering and take weekly tests." While the Sixth Circuit upheld the vaccine mandate, the U.S. Supreme Court will hear oral arguments on the vaccine mandate on January 7, 2021. Stay tuned to our blog for updates.

• NYS Mask Mandate 

Governor Hochul's statewide mandate requiring face mask/covering at all indoor public places is currently effective until January 15, 2022 (to be re-evaluated after this date). The mandate does not apply to indoor public areas that require proof of vaccination as a condition of entry. However, a business cannot "mix and match" i.e. permit individuals who show proof of vaccination to enter mask free while permitting those who do not present proof of vaccination to enter wearing a mask. Either no one is permitted entry that cannot provide proof of vaccination or everyone must wear a mask (whether vaccinated or not).

2. New York State HERO Act

On May 5, 2021, the NY HERO Act was signed into law in order to protect employees against exposure and disease during an airborne infectious disease outbreak. The HERO Act requires employers to take certain measures to protect their employees in the event of an outbreak including implementing an exposure prevention plan. On September 6, 2021, NYS Dept. of Health designated COVID-19 as a highly contagious communicable disease, which means that employers must currently have a written airborne infectious disease policy in effect.

3. Notice of Employee Monitoring

Pursuant to a new law signed by Gov. Hochul, beginning on May 7, 2022, employers in NYS who wish to monitor or otherwise tap telephone calls, e-mails, or internet access of an employee via any electronic device or system, must give prior written notice upon hiring to all employees. Additionally, each employer must post the notice of electronic monitoring in a visible place in the office. Businesses will be subjected to fines for violations.

4. Cannabis Use in the Workplace
The Department of Labor issued guidance on Section 201-D of the NY Labor Law which prohibits an employer from discriminating against employees for using cannabis outside of the workplace on their own time. While, per the guidance, an employer may prohibit cannabis use during work hours, an employer may only discipline employees (where employee did not use cannabis during work hours) who "manifest specific articulable symptoms of impairment" due to cannabis use. For example, odor of cannabis, without more, is insufficient to discipline an employee.

5.  Whistleblower Protections

Effective January 26, 2022, employees/independent contractors will have significantly expanded whistleblower protections, pursuant to Labor Law 740, if they disclose or threaten to disclose, to a supervisor or to a public body, an activity, policy or practice of the employer, that the employee reasonably believes is in violation of law, rule or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.

6. Shared Work Program

Employees, without fear of retaliation, may petition their employer, in writing in advance of a layoff or within ten (10) days after a layoff to implement a “Shared Work” program (A shared work program was formed to assist employers in avoiding layoffs and maintain trained workers during an economic downturn by allowing employees to receive partial unemployment benefits while working reduced hours).

7. Requirement to Include Minimum and Maximum Salaries for all Posted Positions

Beginning in April 2022, unless vetoed by January 14, 2022, a new law will require NYC employers to include in all job advertisements, the minimum and maximum salaries for the posted position. Positions extend to jobs, promotions, or transfer opportunities. Employers that fail to include the minimum and maximum salaries will be in violation of the NYC Human Rights Law.

8.  Mandatory Enrollment in Retirement Plan