Employers Required to Provide Employees Notice of Electronical Monitoring Beginning May 7, 2022

Starting May 7, 2022, if you wish to electronically monitor your employees, you will need to provide statutory notice first.

On November 8, 2021, Governor Hochul signed Bill A430 into law, which amends Section 52-c to the Civil Rights Law, and starting on May 7, 2022, employers with a place of business in New York who monitor or otherwise tap telephone calls, e-mails, or internet access of an employee by any electronic device or system, must give prior written notice upon hiring to all employees. Additionally, each employer must also post the notice of electronic monitoring in a visible place which is readily available for viewing by its employees.

 

Any employer found to be in violation of this Bill will be subject to a maximum penalty of $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.

OSHA Vaccine Stay in 5th Circuit - What Does That Mean - Nothing?

On November 6, 2021, the 5th Circuit Court of Appeals stayed the OSHA Vaccine Emergency Temporary Standard (which we explained in this blog). However, the Circuit set a short briefing schedule and required the Government to respond to petitioners' motion for a permanent injunction by 5:00 PM on November 8th, which they did, and the petitioners to reply by 5:00 PM on November 9th, which they did. 

However, the stay seems to be a splashy headline about absolutely nothing. Specifically, the Emergency Temporary Standard's compliance date is not until January 4, 2022 and it impossible that the legality of the Emergency Temporary Standard is not determined before then. More so, as the Government points out, in great detail within their response, this case will be in Multidstrict Litigation "on or about November 16—21 days before the December 7 date that petitioners allege is the earliest date that any employee could be required to receive a vaccine and 51 days before petitioners’ employees would be required to start testing." Here, the 5th Circuit choosing to go it alone, is really strange. 

Regardless, the ultimate determination in this case will likely involve a ruling as to whether the United States Code (29 USC 655(c)), permitted OSHA to issue the vaccine Emergency Temporary Standard. The applicable Code section reads:

OSHA shall provide, without regard to the requirements

of chapter 5, title 5, United States Code [5 USCS §§ 500

et seq.], for an emergency temporary standard to take

immediate effect upon publication in the Federal Register

if he determines (A) that employees are exposed to grave

danger from exposure to substances or agents determined

to be toxic or physically harmful or from new hazards, and

(B) that such emergency standard is necessary to protect

employees from such danger.

Stated otherwise, the question before the Multidistrict Court is going to be whether OSHA has power to issue the Standard. To get to that answer, it is helpful to understand that a grave danger means one that causes "incurable, permanent, or fatal consequences to workers, as opposed to easily curable and fleeting effects on their health," according to precedent. 

Now, to make matters even more interesting, even if OSHA loses on this Emergency Temporary Standard before the Multidistrict Court, it can nonetheless issue a vaccine requirement through traditional rulemaking so long as such a requirement is "'reasonably necessary or appropriate' to address a 'significant risk' of harm in the workplace." As you can see, we are just in the starting gate and this horse race hasn't yet even started. Stay tuned. 

OSHA Releases Details/Requirements of Employer Vaccine Mandate

The Occupational Safety and Health Administration ("OSHA") issued its long awaited emergency temporary standard requiring all private sector employers with 100 or more employees ("covered employers") to "develop, implement, and enforce a mandatory COVID-19 vaccination policy." OSHA issued separate rules for federal contractors/subcontractors and health care workers.

The OSHA rules require all covered employers to ensure their employees are vaccinated by January 4, 2022 or undergo weekly testing for COVID-19 and wear face coverings while at work (There is no testing option for health care workers).

Employers do not have to require employees to get vaccinated or be tested weekly if they: 1) report to a workplace where no other individuals are present; 2) work entirely from home; or 3) work exclusively outdoors. In addition, the rules provide for a reasonable accommodation for employees who have a disability or sincerely held religious belief (where there is no undue hardship to the employer).

The rules also require covered employers to do the following:

• obtain and preserve records of employee vaccination/testing which must be provided to employees, employee representatives and OSHA upon request;
• provide employees with up to four (4) hours of paid time off to receive their vaccine dose(s);
• provide reasonable time off and paid sick leave for employees to recover from side effects experienced from receiving the vaccine;
• require employees to notify the employer when they are diagnosed with COVID-19 and remove all employees who are positive from the workplace until they meet certain criteria;
• require all unvaccinated employees as of December 5, 2021 to wear masks (they must be vaccinated by January 4, 2022). 
• report all COVID-19 fatalities and hospitalizations to OSHA;

Aside from the vaccination/weekly testing requirements, all of the other rules take effect on December 5, 2021. Covered employers should, thus, immediately work with counsel to begin creating and implementing a policy in compliance with these new rules. Covered employers who fail to comply with these rules can face fines in the amount of $13,653 per violation or $136,532 per violation if the conduct is willful or repeated. 

Builders Required to Provide Cost Estimate of Fire Sprinkler System Beginning September 1, 2022

Starting September 1, 2022, prospective buyers of newly built one or two-family homes will now become aware of the possibility of a fire damaging their home, and have the opportunity to reduce this risk prior to even beginning construction.

 

On November 4, 2021, Governor Hochul signed Bill S1383 into law, which amends Section 759-a of the General Business Law. Beginning September 1, 2022, builders of one- or two-family homes with less than three stories will be required to provide a buyer with a cost estimate for the installation and maintenance of an automatic fire sprinkler system. The builder must also provide a copy of written materials prepared by the office of fire prevention and control which details the benefits of and includes factors that can affect the costs associated with the installation and maintenance of an automatic fire sprinkler. If the buyer requests the installation of the automatic fire sprinkler system, the builder shall install it at the buyer’s expense.

 

Fire Sprinkler systems are an effective device in the event of a fire and are not uncommon. Many structures such as commercial buildings and multi-family homes are required to install such devices in the State of New York. The justifications for this bill seem very convincing, and this bill will allow prospective homeowners who are planning new construction with a cost estimate for installation of a fire sprinkler system which could ultimately, save their house or even more importantly, their lives.

New Dog / Insurance Law - Dog Breed Exclusions Can't be Random

As of January 28, 2022, NYS insurers are prohibited from refusing to issue or renew, cancel, or charge or impose an increased premium for homeowners' insurance policies based on the breed of a dog owned.

Nonetheless, Insurance Law 3421 now provides an exception where insurance can be modified if a breed or mixture of breeds is designated as a dangerous dog pursuant to Agriculture and Markets Law 123, which requires such designations to be made by sound underwriting and actuarial principles, rather than fear alone. 

Governor Hochul signed this legislation, S4254, on October 30, 2021.