Covid '22 and the law - Long Island Business News

COVID-19 is still with us. So it helps for employers to brush up on employment law – or know where to turn for guidance – as we continue to navigate the pandemic era.

That’s perhaps the surest way to ensure clear expectations while forging ahead at work.

“It’s important that employers and employees have a dialogue and are able to speak to each other,” said Avrohom Gefen, who leads Vishnick McGovern Milizio’s labor and employment law and commercial litigation practices in Lake Success.

“That’s something that’s going to be a guiding principle going forward so that there can be an amicable relationship and a productive relationship between management and employees,” he added.

Gefen shared insights on COVID-19 and employment law during a recent episode of LIBN|NOW Experts Forum, Long Island Business News’ webinar series. This program also featured Asish Nelluvely, counsel to Meltzer Lippe Goldstein & Breitstone’s labor and employment practice group. The forum was moderated by Joe Dowd, LIBN’s editor and associate publisher.

COVID’s alternating dips and spikes have brought new demands on the workforce, whether it’s allotting time for quarantines and vaccines or discussing such matters as religious exemptions. And for employers and employees alike, the virus has brought twists and turns with each nuance.

That’s why employers would do well to “ensure that there is a good understanding of expectations” and that they are “appropriately communicated,” Nelluvely said.

And as new policies are created to address the pandemic, there should be “a designated contact for the employee to reach out to with any questions that they may have” and to ensure compliance, she said.

Sick pay

Employers today might be surprised that there has been a continuation in labor law with regards to sick pay. This is “required for all employees, depending on the size – it could be unpaid or partially paid, or paid for a longer period of time or shorter period of time,” Gefen said.

What has changed, though, is the length of time that sick leave is in effect, which is “dependent on periods of required mandatory quarantine or mandatory isolation, depending on whether someone has been in close contact with someone with COVID or whether someone has COVID themselves,” Gefen said.

And in the pandemic, “an employee can have multiple times a year of paid COVID sick leave – up to three times per year,” Gefen said.

Now, however, only the first time of paid sick leave can be for “either the person or a relative who has to quarantine or isolate,” Gefen said. “The other two times can only be for that person’s own required isolation if that person actually contracted the virus and is symptomatic with COVID.”

Employers are also taking note of a new change to New York State law. Previously an employee seeking to invoke the law to get paid or unpaid leave for COVID had to get an order, accessible through the New York State website via the commissioner of health. But now, self-attestation is permitted, and has the same effect as the mandatory order.

Vaccine-leave

Opportunities continue for employees to ensure they are vaccinated, including though state-granted vaccine leave, that is, paid time off to attain vaccines, Nelluvely said.

“Employers should be aware that they are required to provide up to four hours per vaccine to the extent that until they are fully vaccinated,” she said. However, if the place of vaccination is more accessible, say, for example, down the road from the employer, employees would not be entitled to that allotted four hours.

And in instances where a parent is taking a child for vaccination, employees are entitled to the four hours in paid time off, Gefen said.

Some people experience short-term side effects, such as fever, headache and fatigue, among other symptoms, which is why employees are “entitled to time off to recover from vaccines to the extent that they are symptomatic or unwell, following the vaccination,” Nelluvely said. That recovery time is in addition to the four hours spent attaining the vaccine.

And for most employers these time-off protocols are worthwhile because they “want to ensure that their employees are vaccinated,” Nelluvely said.

Pushback

Yet some employers get pushback from employees who don’t want to get vaccinated, “for various reasons, whether it’s a religious or a claimed religious [reason] or it’s a health reason,” Gefen said. “And it’s a tricky road for employers to navigate: To respect their employees’ rights, but also to provide a safe workplace as well as to comply with the law.”

In these instances, “the most important thing is to have a dialog with the person,” Gefen said.

It helps to look to the guidance from the U.S. Equal Employment Opportunity Commission. In doing so, employers will see that there “shouldn’t be too much of an intensive questioning as to a person’s religious sincerity unless you have obvious reasons that you know of,” Gefen said. The same holds true when there is “an indication that it’s not a legitimate religious request or religious reason that the person” is claiming.

Employers who do allow exemptions often must provide an accommodation for people to do their job, protecting others in the workplace. Still there are times when an exemption cannot be granted – for example, in instances when “there’s no accommodation that you can give them that would allow them to do their job,” Gefen said.

Still, navigating these circumstances can be challenging, particularly when understanding which kinds of questions are appropriate to ask an employee when determining the right course to take. For this reason, Nelluvely urges employers to “speak to a lawyer to help you guide through this.”

And “the religious exemptions are based upon the constitutional rights to freedom of religion to … to practice your chosen religion,” Gefen said.

What’s at play here could come down to a “question of the employer either rejecting or not rejecting a person’s very personal belief,” Gefen said. Going forward, it can affect how the owner operates the place of employment. And “it could affect the long term relationship between the employer and the employee.”

And that can have ramifications.

“It could affect the morale between other employees if certain employees are granted exemptions and other employees are not granted the exemptions. All of this is very important to keep in mind for the employers,” Gefen said.

Still, “some employers see this as an opportunity because they don’t want to offend or hurt their employees,” he said. “They’re not that concerned with having employees vaccinated, and this gives them a chance, or an opportunity, to say ‘I followed the law. I required my employees to be vaccinated, but I also follow the law by allowing certain employees who requested religious exemption.’”

In these instances, the situation can present “a balance in that they can not only answer to the government, but they can answer to their other employees that they have to respect, and they respect everybody’s religion.”

These kind of conversations and efforts to comply with the law and maintain safety can be tough to negotiate, which is why clear communication and expert legal advice are invaluable in the workplace.

source: https://libn.com/2022/05/06/covid-22-and-the-law/

Your content is great. However, if any of the content contained herein violates any rights of yours, including those of copyright, please contact us immediately by e-mail at media[@]kissrpr.com.