On July 7, 2021, the New York Department of Labor (DOL) published the NY Hero Act airborne infectious disease exposure prevention standard (the Standard) and industry-specific model airborne infectious disease exposure prevention plans as required under the NY Hero Act (the Act). The Act requires New York employers to implement extensive new workplace health and safety protections in response to a “highly contagious communicable disease” as designated by the New York State Commissioner of Health (Designation). Notably and significantly, while the NY Department of Health continues to deal with COVID-19 and a risk still exists, the DOL clarified that there is no current Designation for COVID-19 by the Commissioner and therefore, no New York employer is required to put a plan in effect at this time due to COVID-19.

The Standards make clear that they only apply in relation to “an airborne infectious agent or disease designated by the Commission of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health” and does not apply to “any employee within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases.”

Therefore, all that is required at this time for a New York employer is:

• adopt the industry-specific template model policy as published by the DOL or establish an alternative plan that meets or exceeds the Standard’s minimum requirements no later than August 6, 2021,
• provide a copy of the adopted airborne infectious disease exposure prevention plan to all employees and post the same in a visible and prominent location within each worksite within 30 days from adoption, and
• provide a copy of the adopted plan to all new employees within 30 days from adoption.

The Standards and plans themselves include requirements for employee health screenings, face coverings, personal protective equipment (PPE), social distancing, and cleaning and disinfecting protocols. But again, these are only required in the event the Commission makes a Designation. That said, employers are still able to implement these controls and otherwise continue to adhere to New York’s archived guidance for the applicable industry if desired.

Upon adopting the relevant plan, and after distributing the plan to employees, the Standards contemplate that the plan should be reviewed and updated whenever necessary to reflect new or modified tasks and procedures affecting occupational exposure and to reflect new or modified employee assignments. This way, in the event a Designation is made, employers can swiftly implement all that is required to ensure a safe worksite and “promptly activate the worksite exposure prevention plan.”

On June 10, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) submitted for publication in the Federal Register its COVID-19 Emergency Temporary Standard (ETS), setting forth new mandatory safety requirements designed to protect workers from COVID-19. The much-anticipated ETS is generally applicable only to certain healthcare workplaces.

The provisions of the ETS will be effective immediately upon publication in the Federal Register. Compliance will be required within 14 days of publication, with the exception of provisions relating to physical barriers, ventilation, and training, which go into effect within 30 days of publication.

Coverage

The ETS generally applies to all workplace settings where any employee provides healthcare or healthcare support services, except for the following:

1. The provision of first aid by an employee who is not a licensed healthcare provider;
2. The dispensing of prescriptions by pharmacists in retail settings;
3. Nonhospital ambulatory (outpatient) care settings where all nonemployees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings;
4. Well-defined hospital ambulatory (outpatient) care settings where all employees are fully vaccinated and all nonemployees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings;
5. Home healthcare settings where all employees are fully vaccinated and all nonemployees are screened prior to entry and people with suspected or confirmed COVID-19 are not present;
6. Healthcare support services not performed in a healthcare setting (e.g., off-site laundry, off-site medical billing); or
7. Telehealth services performed outside of a setting where direct patient care occurs.

Where a healthcare setting is embedded within a nonhealthcare setting (e.g., medical clinic in a manufacturing facility, walk-in clinic in a retail setting), the ETS applies only to the embedded healthcare setting and not to the remainder of the physical location. When emergency responders or other licensed healthcare providers enter a nonhealthcare setting to provide healthcare services, this ETS applies only to the provision of healthcare services by that employee.

In addition, the ETS provides that in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present, fully vaccinated workers will be exempt from the masking and other PPE, distancing and barrier requirements that are otherwise mandated as described below.

Overview of Key Requirements for Covered Healthcare Employers

Covered healthcare employers must comply with certain safety requirements aimed at reducing the spread of COVID-19 in the workplace. Those requirements include, but are not limited to:

1. Developing and implementing a COVID-19 plan that designates a safety coordinator, addresses hazards assessed by the employer with the involvement of nonmanagerial employees and includes policies and procedures to minimize COVID-19 transmission, among other things. Notably, the ETS indicates that the OSHA website provides a model COVID-19 plan, however, as of the date of this Alert, no such model COVID-19 plan is available online.
2. In settings where direct patient care is provided, screening patients, visitors and other nonemployees, limiting and monitoring entry points to settings where direct patient care is provided, and implementing patient management strategies. The ETS also encourages the use of telehealth services where available and appropriate.
3. Adhering to CDC guidelines on standard and transmission-based precautions.
4. Providing personal protective equipment (PPE). More specifically, providing and ensuring each employee wears a face mask (as defined in the ETS) when indoors and when occupying a vehicle with other people for work purposes, providing and ensuring that employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19, and for aerosol-generating procedures on a person with suspected or confirmed COVID-19.
5. Limiting employees present during aerosol-generating procedures on a person with suspected or confirmed COVID-19, performed in an airborne infection isolation room, if available, in addition to other cleaning and disinfecting requirements.
6. Keeping everyone at least 6 feet apart when indoors.
7. Installing cleanable or disposable barriers at fixed work locations in nonpatient care areas where employees are not separated from other people by at least 6 feet.
8. Following CDC guidelines for cleaning and disinfecting surfaces in patient care areas, resident rooms, and for medical devices and equipment. In other areas, follow procedures for cleaning high-touch surfaces and, where an employer is aware that a person who is COVID-19 positive has been in the workplace within 24 hours, follow the CDC’s cleaning and disinfecting guidance.
9. Ensuring that employer-owned or -controlled existing HVAC systems are used properly and air filters meet a certain minimum rating if permitted by an employer’s ventilation system.
10. Conducting daily employee health screenings, requiring employees to report positive or suspected COVID-19 cases or symptoms, notifying certain employees of positive COVID-19 cases, following requirements to remove employees who have suspected or confirmed COVID-19 cases and, for employers with more than 10 employees, providing medical removal protection benefits (i.e., paid leave) to workers who must isolate or quarantine.
11. Providing reasonable time and paid leave for vaccinations and vaccine side effects.
12. Training all employees so that they understand COVID-19 transmission, tasks and situations that could result in infection and relevant policies and procedures.
13. Informing employees of their rights relating to anti-retaliation and anti-discrimination protections under the ETS.
14. Keeping an up-to-date log of all employee instances of COVID-19 (whether occupational or otherwise) by all employers with more than 10 employees and making records, including the COVID-19 plan and certain log information, available to employees and their representatives by the end of the next business day after a request.
15. Reporting work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.
16. Requirements for the implementation of ETS’s mini respiratory protection program where healthcare employers provide employees with respirators in lieu of facemasks or permit employees to wear their own respirators instead of facemasks.

Next Steps for Employers

Healthcare employers should immediately take steps to confirm whether the ETS applies to all or only a portion of their operations and begin updating existing COVID-19 policies and procedures to meet ETS requirements. By way of example only, the ETS includes definitions of terms such as “COVID-19 symptoms” that may require revisions to existing policies and plans. The ETS specifies when employees must not enter or be removed from the workplace due to COVID-19 symptoms, diagnosis or close contact, and the timing and conditions for when they may return. Specific requirements apply when employees of different employers share the same physical location and when workers enter into private residences in the course of their employment.

In focusing on the necessary updates, there are a few notable changes based on the ETS that will require particular planning. By way of example:

• Given that some of the exceptions to employer coverage are dependent upon whether all employees are fully vaccinated and, in other instances, certain ETS requirements for covered employers do not apply to fully vaccinated employees, employers may consider requiring all employees be vaccinated or confirming vaccination status. Indeed, an increasing number of employers may require vaccinations in light of the recent dismissal of a highly publicized employee suit challenging hospital-mandated employee vaccinations in Bridges v. Houston Methodist Hospital.
• Employers availing themselves of these exceptions will need to consider, among other issues, how to determine which employees are vaccinated in a way that protects confidential medical information.
• In addition, employers requiring employee vaccination must be mindful of the obligation to provide reasonable accommodations based on disability, pregnancy or religious belief. The ETS specifically provides that if an employer reasonably accommodates an employee who is unable to be vaccinated in a manner that does not expose the employee to COVID-19 hazards, certain exemptions requiring that all employees be vaccinated may nevertheless apply.
• When employers remove an employee from the workplace due to the need to isolate or quarantine based on the requirements of the ETS, and they are not working remotely or in isolation, the ETS requires the continuation of benefits and regular pay, up to $1,400 per week and, for employers with fewer than 500 employees, a reduced amount of up to $200 per day starting in the third week of paid leave. Employers may set off these obligations through compensation employees receive through other sources such as state or local paid COVID-19 leave or employer-provided paid sick leave. In addition, when an employee returns to the workplace after a COVID-19-related workplace removal, they must not suffer any adverse action as a result of their removal, including any to their former job status.
• Employer notification requirements to employees (not wearing a respirator and any other required PPE) of a COVID-19 exposure in the workplace (as well as to the employers of third parties within the workplace) are quite detailed and go beyond those who were a “close contact” to include those who were in the well-defined portion of the workplace in which the potential transmission took place. The ETS provides a Model Employer Notification Tool that may be used for these purposes. Importantly, employers may not include an employee’s name, contact information, or occupation.

On April 9, 2021, the DOL’s Wage and Hour Division (WHD) issued Field Assistance Bulletin 2021-2, revoking a Trump administration policy that reduced the pre-litigation amount employers would have to pay to settle violations of the Fair Labor Standards Act (FLSA) by downplaying the use of liquidated damages in settlement discussions.

On April 9, 2021, the DOL’s Wage and Hour Division (WHD) issued Field Assistance Bulletin 2021-2, revoking a Trump administration policy that reduced the pre-litigation amount employers would have to pay to settle violations of the Fair Labor Standards Act (FLSA) by downplaying the use of liquidated damages in settlement discussions.

Under the FLSA, employers that violate FLSA provisions regarding minimum wages, overtime compensation, and protections for employees who receive tips are liable for the unpaid wages or unlawfully kept tips as well as an additional equal amount as liquidated damages (i.e., double what an employer owes).

Prior to June 23, 2020, it had been the policy of WHD to seek liquidated damages in certain cases. This policy was changed based on a June 23, 2020 memorandum from the Deputy Secretary following the issuance of Executive Order 13924, Regulatory Relief to Support Economic Recovery. In FAB 2020-2, the DOL announced that it would no longer be seeking pre-litigation liquidated damages except in cases where there was “clear evidence” of bad faith or a history of violations by the employer.

With the issuance of FAB 2021-2, the WHD will return to pursuing liquidated damages from employers found due in its pre-litigation investigations provided that the Regional Solicitor (RSOL) or designee concurs with the liquidated damages request.

According to FAB 2021-2, “Liquidated damages shall not be assessed by WHD where the employer has set forth credible evidence of a good faith defense,” or the where the regional solicitor “deems the matter inappropriate for litigation.

New York City’s “Freelance Isn’t Free” Act emphasizes importance of compliance with independent contractor rules.

The New York City “Freelance Isn’t Free Act” (FIFA) took effect on May 15, 2017. The first of its kind in the country, FIFA was designed to protect independent contractors by imposing a number of strict requirements on individuals and entities that contract with freelance workers. FIFA establishes penalties for violating requirements including statutory damages, double damages, injunctive relief, and attorneys’ fees. Businesses covered by FIFA should familiarize themselves with its requirements.

FIFA’s Coverage

FIFA applies to a person who retains a freelance worker to provide any service. Excluded from coverage are the U.S. government, New York State (including agency, authority, or other body of the State), New York City, any local government (e.g., municipality or county), or any foreign government. FIFA refers to a person that engages a freelance worker as a “hiring party.”

FIFA governs the relationship of any hiring party with a freelance worker, which is defined to include “any natural person or any organization composed of no more than one natural person, whether or not incorporated or employing a trade name” engaged to provide services in exchange for compensation. The definition excludes commissioned salespersons, attorneys and licensed medical professionals.

FIFA’s Requirements

FIFA requires that any hiring party engaging a freelancer must enter into a written contract with the freelancer whenever the contract between them has a value of $800 or more (either by itself or when aggregated with all contracts for services between the same hiring party and the freelancer during the immediately preceding 120 days). Each party must retain a copy of the written contract, which must include, at a minimum, the following information:

1. the name and mailing address of both parties;
2. an itemization of services to be provided by the freelancer;
3. the value of the service to be provided pursuant to the contract;
4. the rate and method of compensation; and
5. the date on which the hiring party must pay the contracted compensation to the freelancer or, if no date is provided, the mechanism by which such date will be determined.

Any person retaining a freelancer must pay the contracted compensation on or before the date such compensation is due under the contract. If the contract does not specify when the person must pay the contracted compensation, or the mechanism by which the date will be determined, then the freelancer must be paid no later than 30 days after the completion of their services under the contract. After a freelancer has commenced performance of services under the contract, FIFA prohibits the hiring party from requiring, as a condition of timely payment for services, that the freelancer accept less compensation than the amount of the contracted compensation.

FIFA places the burden of compliance on hiring parties. However, failure to comply with FIFA does not render any contract between a hiring party and a freelance worker void or voidable or otherwise impair any obligation, claim, or right related to such contract, and it does not constitute a defense to any action to enforce, or for breach of, such contract.

FIFA’s Anti-Retaliation Prohibitions

FIFA prohibits hiring parties from retaliating against freelancers. Specifically, hiring parties may not “threaten, intimidate, discipline, harass, deny a work opportunity to or discriminate against a freelance worker, or take any other action that penalizes a freelancer for, or is reasonably likely to deter a freelancer from, exercising or attempting to exercise any right guaranteed under this chapter, or from obtaining future work opportunity because the freelance worker has done so.”

Complaint Process

A plaintiff alleging a violation of FIFA may file a complaint for investigation with the Director of the New York City Office of Labor Standards (“OLS”), or a lawsuit in court. The statute of limitations to file a claim with OLS for violations of FIFA is two years, measured from the date of the alleged violation. For court actions, FIFA provides a two-year statute of limitations for bringing a claim alleging violations of the written contract requirement, and a six-year limitations period for bringing an action alleging failure to make timely or full payment or for retaliation. The Director of OLS will have no jurisdiction to investigate a claim that is also the subject of a court action alleging a violation of FIFA or a breach of contract claim that is pending in any court or administrative proceeding.

Statute of Limitations and Damages for Violations

A plaintiff who prevails on a claim alleging a violation of the written contract requirement will be awarded damages of $250. A plaintiff who prevails on a claim alleging a violation of the written contract requirement, as well as one other violation of FIFA, will receive damages equal to the value of the underlying contract plus other remedies under FIFA. A plaintiff who prevails on a claim alleging a violation of the timely payment requirements will receive double damages, injunctive relief, and other remedies as may be “appropriate.” Damages equal to the value of the contract are also available if the hiring party retaliates against a freelance worker for exercising, or attempting to exercise, any right under FIFA. If there is evidence of a pattern of repeated violations, the City of New York, through the Corporation Counsel, may bring a civil action to recover a civil penalty not to exceed $25,000. Prevailing parties will also be awarded reasonable attorneys’ fees and costs.

Assistance for Workers and Businesses

Pursuant to FIFA, the OLS will establish a “navigation program” that will provide information and assistance to individuals who have questions regarding FIFA. Under the navigation program, model contracts will be available to the general public at no cost, in English and six languages most commonly spoken by limited English proficient individuals in New York City. Further, the navigation program will provide information about procedures under FIFA, available templates and court forms, classifying workers as employees or independent contractors, and organizations that can be used for identification of attorneys.

Data Collection

Under FIFA, the OLS is directed to follow up with freelance workers who file complaints to determine whether the freelance workers commenced a court action to enforce their rights or entered into alternative dispute resolution proceeding with the hiring party, and whether the freelancer was paid any or all of the compensation due to the freelancer. The Director of OLS will collect and track information about complaints alleging violations of FIFA. OLS’s records will include, at a minimum, the identity of the hiring party alleged to have violated FIFA, the freelance worker’s occupation, the section of FIFA that was alleged to have been violated, the value of the contract, the response or non-response of the hiring party in OLS’s investigation, and information from a completed survey done by the freelance worker.

In view of the potential penalties for noncompliance, any person or entity engaging a freelance worker in New York City should evaluate its practices and independent contractor agreements to ensure compliance in connection with any contracts executed with freelance workers after May 15, 2017.

The individual owners and operators of a business can be personally liable for wage and hour errors and underpayments to workers.

In a 2013 decision, the U.S. Court of Appeals for the Second Circuit sent a chilling reminder to business owners, executives, and other high-ranking employees that they may be held personally liable for their company’s violations of the Fair Labor Standards Act (FLSA). In Irizarry v. Catsimatidis, the court held that the CEO of a grocery chain—and a New York City mayoral candidate—was individually responsible for paying a $3.5 million settlement, which represented alleged unpaid overtime wages.

“Employers” may be personally liable for FLSA violations. But whether an individual is an “employer” under the FLSA is determined under a four-part “economic realities” test, which examines whether the alleged employer: 1) had the power to hire and fire the employees, 2) supervised and controlled employee work schedules or conditions of employment, 3) determined the rate and method of payment, and 4) maintained employment records. Ultimately, courts make these determinations on a case-by-case basis, examining the totality of the circumstances.

In Irizarry, the court concluded that the CEO exercised “operational control” of the company, making him an “employer” under the FLSA, and thus personally liable for the wage and hour settlement. In its decision, the court emphasized that the CEO worked in the corporate headquarters almost every day; handled the banking, real estate and financial matters for the business; was involved with product merchandising; responded to consumer complaints; made employment decisions, such as hiring and firing managerial employees; and visited the company stores to evaluate operations. The CEO’s arguments that he made general corporate decisions and was not involved in the day-to-day operations of the business were rejected by the court.

Irizarry did not establish any new law, but it highlights the importance of proactively assessing and reviewing a company’s wage and hour compliance. The case serves as an important reminder that corporate form does not preclude individual liability for FLSA violations.