Employment Laws - Year End Review

As the year comes to a close, we want to remind employers of the following recent laws, regulations and guidance related to the workplace, many of which are currently in effect or take effect early next year.

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

Governor Hochul recently signed legislation that will require private sector employers who do not provide their employees with a retirement plan to automatically enroll their employees in New York State's Secure Choice Savings Plan. Employees are able to opt out of the program at any time. Stay tuned for more details as the program is developed and implemented.




Happy New Year!

New Law: Co-ops under the Housing Stability and Tenant Protection Act of 2019

As of December 22, 2021, cooperatives have received 8 exemptions from the Housing Stability and Tenant Protection Act, which otherwise restricts landlords' rights as to their tenants.

When the Housing Stability and Tenant Protection Act came out, we repeatedly tried to explain to co-op boards, property managers (managing agents), real estate brokers, local NAR boards, and courts, amongst others, that this law applied to co-ops regardless that it clearly was not the intent of the legislature. To a non-lawyer intent of the legislature matters, to a lawyer the rules of statutory interpretation matter and you never get to the intent of the legislature if the statute is clear on its face, which the Housing Stability and Tenant Protection Act is. You see, co-ops are landlords and their shareholder-owner-occupiers are tenants. This is longstanding settled law, which  created a huge predicament for co-ops. 

Thankfully, roughly 2 years later, the law is finally fixed as follows:

• GOL 7-108(1-a), the deposit or advance limit of one month’s rent will no longer apply to owner-occupied cooperative apartments;
• RPL 226-c, the notice requirement for rent increases of 5% or more / non-renewal will no longer apply to owner-occupied cooperative apartments;
• RPL 238-a(1)(a), the preclusion of charging fees to review applications will no longer apply to  compensate managing agents and/or transfer agents for the processing, review, or acceptance of such prospective tenant’s application to become a shareholder of such co-op; 
• RPL 238-a(1)(b), the cap on fees for applications of $25 is inapplicable to applications from prospective shareholders to co-ops, but the limitation of only charging up to the actual cost remains;  
• RPL 238-a(2), late fees are now permitted on owner-occupied cooperative, but only up to 8% of monthly maintenance fee and only where the proprietary lease or occupancy agreement is updated to reflect such percentage;
• RPAPL 702(2), the limited definition of rent for purposes of a judgment in a summary proceeding is inapplicable to owner-occupied cooperatives to the extent that the proprietary lease or occupancy agreement is updated to reflect a different definition;  
• RPL 235-e, the 5-day non-payment of rent notice does not need to be sent by certified mail to co-op owner-occupants to the extent that the proprietary lease or occupancy agreement is updated to reflect a different method of serving notice; and 
• RPL 234, attorneys’ fees may be awarded to either party in the event of a default judgment concerning a co-op owner-occupant to the extent that the proprietary lease or occupancy agreement is updated to reflect the availability of such fees. 

We can't stress enough that half of these new updates require an updated proprietary lease / occupancy agreement to become effective. As to the other half, co-ops would also be wise to expressly provide for their rights under an updated proprietary lease / occupancy agreement. That all being said and even if a co-op does update its proprietary lease / occupancy agreement, it will remain a landlord and subject to landlord / tenant laws for every other law that restricts landlords' actions in NYS.

Restaurants Now Potentially Negligent for Grease Traps' Design & Warning Sign Defects

A new NYS law requires all food service establishments with a grease trap / interceptor to ensure that it's designed to withstand expected loads & prevent unauthorized access. This law is effective 1/10/2022. 

The law also calls for the State Fire Prevention & Building Code Counsel to create regulations about warnings / design requirements for grease traps.

Beyond providing for local governments to adopt local laws to enforce this new law, it definitely establishes exposure to restaurants for personal injuries. Restaurateurs and landlords should ensure compliance and modify their leases to establish who is responsible for compliance.   

 

NYS Liquor Authority Updates License Application Rules

The Alcoholic Beverage Control (ABC) Law in NYS is being updated. 

A new law provides for payment receipts for applications, which is effective 2/20/2022. It also provides that the status of all licenses / permits should be posted on its website by 12/22/2022. This website will also provide the anticipated application process length of time as well as notifying applicants when estimates change.   

 

Another new law modifies penalties for violations. 1st time administrative / paperwork violators will now be given opportunities to fix errors (15 to 20 days) if the violation is considered minor instead of facing misdemeanor penalties. 

eSignature Impersonations are Criminal - It's About Time!

As a Christmas Present, New York State caught up with the times and updated the Penal Law to make impersonating another by electronic signature illegal. 

That makes sense.