With U.S. vaccination rates rising, law firms, like most other businesses, are moving closer to fully reopening their offices. Below is a rundown of four major developments from the past month that law firms should keep in mind during this process.
1. New York Lifts Most Remaining Pandemic Restrictions. On June 15th, New York reached a 70% rate in COVID-19 vaccinations across the state. The 70% milestone had been set by Governor Andrew Cuomo as a threshold for lifting certain remaining restrictions in New York, including indoor capacity limits, social distancing, and mask wearing in offices, restaurants, theaters, and fitness centers. It will now be optional for most businesses to retain those restrictions for vaccinated employees, although masks will remain mandatory on public transportation and in hospitals, schools, and larger venues.
Take-away for law firms: So long as they operate below the State social gathering limit of 250 indoors/500 outdoors and/or do not congregate patrons above that limit, most New York employers are no longer obliged to require social distancing and masks in the workplace for their vaccinated workers. Law firms and other employers should therefore continue to engage in health screenings, require masks/social distancing for employees who are unvaccinated or whose vaccination status is unknown, and continue to encourage hand hygiene, cleaning/disinfection of high-touch surfaces and maintain proper ventilation/air filtration. In addition, businesses must maintain minimum State standards as well as applicable federal requirements including those of the ADA, CDC, EPA and US/OSHA.
2. NY HERO Act Amended. The New York Health and Essential Rights Act, or the “HERO Act,” will impose new health and safety obligations on employers throughout the state. While the new obligations were not spelled out in the original version of the HERO Act, the state legislature amended the Act in mid-June to set a July 5, 2021 deadline for the New York Department of Labor (DOL) to publish new health and safety standards pursuant to the Act (although as of the morning of July 6th, the DOL had not yet done so). Employers will then have 30 days after the standards’ publication to adopt a disease prevention plan in accordance with those standards, and 60 days thereafter to provide their safety protocol to employees.
The recent amendments to the HERO Act also modify the role of workplace safety committees, who employers must allow employees to establish but whose purview is now limited to issues of occupational health and safety. Members of such committees will be allotted only two paid hours per quarter for meetings and four paid hours per quarter for committee trainings, all of which can take place during working hours.
Finally, the amendments changed the standards for civil litigation under the HERO Act, which any employee may initiate. First, employees will only be awarded injunctive relief for claimed violations that “create . . . a substantial probability that death or serious harm” could result to the employee. Second, employees must provide their employers with 30 days’ notice and an opportunity to cure a violation of the HERO Act before bringing suit, unless the employee “alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith.” Third, employees are prohibited from bringing suit if the employer corrects the violation, or if more than 6 months have passed from the date that the employee knew of the violation.
Take-away for law firms: The health and safety standards for all NY employers is about to change again. Law firms and other employers should take immediate note of the new standards in order to meet the deadline to develop an updated disease prevention plan 30 days after the standards change and the deadline for providing the plan to their employees 60 days thereafter. Employers should also allow their workers to form a workplace safety committee, which can meet for two paid hours and can undergo training for four paid hours per quarter and during work time. Failure to abide by the HERO Act can give rise to civil litigation by employees, although employers will still have a chance to cure any violation before an employee can bring such a suit.
3. US/OSHA Safety Standards Update. On June 10, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (US/OSHA) updated its general industry guidance and announced an emergency temporary standard to protect healthcare workers, both of which are aligned with recent recommendations from the Centers for Disease Control and Prevention (CDC). The updated general guidance, entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” recommends that employers encourage COVID-19 vaccinations, provide paid time off for employees to get vaccines, and focus workplace protections on unvaccinated and otherwise at-risk workers. In particular, US/OSHA recommends that employers engage with workers and their representatives to implement multi-layered interventions to protect unvaccinated and otherwise at-risk workers, including paid time off for vaccinations, free face coverings or surgical masks, and physical distancing in all communal work areas.
Takeaway for law firms: US/OSHA continues to update its general guidance to employers and to emphasize the need to focus protections on unvaccinated and otherwise at-risk workers. Indeed, the recent guidance makes clear that, unless otherwise required by federal or state law, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure in any workplace where all employees are fully vaccinated.
4. Texas Federal Court Upholds Employer’s Mandatory Vaccination Policy. On Saturday, June 12th, a Houston federal judge handed the first major victory to employers with mandatory vaccination policies. One hundred seventeen staff members of Houston Methodist hospital filed a lawsuit challenging their employer’s mandatory COVID-19 vaccination policy on several bases, including that they were being “coerced” into getting the vaccine in a right-to-work state and that their employer was making them into “human guinea pigs” for an experimental vaccine. Primarily relying on a 100 year old U.S. Supreme Court precedent that mandatory vaccinations do not violate due process, Judge Lynn N. Hughes dismissed the lawsuit in its entirety. He rejected the plaintiffs’ argument that the mandatory vaccination policy violated federal law because it had not been “fully approved” by the Food and Drug Administration, stating that the FDA “neither expands nor restricts the responsibilities of private employers; in fact it does not apply at all to private employers….” Judge Hughes concluded his five page order by getting “straight to the point”: “If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.”
Takeaway for law firms and other employers: Although this is the first lawsuit regarding employer-mandated COVID-19 vaccination policies to reach judicial review, Judge Hughes’ reasoning in his dismissal is not surprising. The decision is consistent with U.S. Supreme Court precedent regarding employer-mandated vaccination policies and the EEOC’s May 28, 2021 pronouncement upholding mandatory vaccination policies subject to reasonable accommodations for employees with ADA-recognized disabilities or sincerely held religious beliefs. Other courts are likely to follow the same precedents and reject challenges to employer-mandated COVID-19 vaccination policies.
As law firms take steps to open their doors and grapple with the ever-evolving landscape of COVID-19-related standards, laws, and court decisions, they will need, as always, to bear in mind the ethical obligations applicable to lawyers in general. This includes the duty to safeguard client confidential information and electronic data, the duty to ensure adequate privacy when lawyers are teleworking or transitioning back to the office, and the duty to properly supervise staff and more junior lawyers, wherever they may be working. Law firms are well advised to re-examine and, if necessary, update their employment handbooks in response to these concerns.
The health and safety standards for all NY employers is about to change again. . . . As law firms take steps to open their doors and grapple with the ever-evolving landscape of COVID-19-related standards, laws, and court decisions, they will need, as always, to bear in mind the ethical obligations applicable to lawyers in general.