Last week, New York Governor Andrew Cuomo announced that the state disaster emergency he declared on March 7, 2020, due to COVID-19 would officially end after June 24, 2021. He then signed Executive Order No. 210, which formally rescinded, effective June 25, 2021, the declarations of Executive Order 202: Declaring a Disaster Emergency in the State of New York (and the 111 subsequent orders continuing temporary suspension and modification of laws relating to the disaster emergency) as well as Executive Order 205: Quarantine Restrictions on Travelers Arriving in New York, issued June 24, 2020, and its three subsequent modifications.
Under the terms of Executive Order 202.111, those orders were already set to expire on July 5, 2021, absent further extension. However, the governor’s formal actions in declaring the state of emergency over and concluding the related exercise of emergency executive powers means that the various suspensions and directives that had been issued to help New Yorkers manage within the restrictions imposed due to the state of emergency all came to an abrupt end last week. It is important for New York employers to understand what this means — and does not mean — as they continue to navigate back-to-work protocols in the aftermath of what is hoped to be a waning pandemic.
What’s Changed for New York Employers?
Substantively, not as much has changed as you might think. While Governor Cuomo will no longer be making daily announcements about protocols and restrictions or issuing mandates regarding social distancing, mask wearing, and other workplace safety precautions, regulators (such as the New York State Department of Labor (“NYSDOL”) and the U.S. Department of Labor’s Occupational Safety and Health Administration) still have the responsibility and the right to promulgate and enforce rules that have been authorized by legislation or relevant executive acts.
An adjustment for businesses that provide or rely upon notarization services is the immediate cessation of authorization for notary services to be performed remotely and the automatic extension of expired Notary Public commissions. The New York Department of State issued an announcement that Notaries Public are no longer authorized to perform their services remotely, due to the end of the state of emergency and the expiration of the executive order that enabled electronic notarization. Legislation to permanently authorize remote notary services has been introduced and is now in committee in the Assembly and has passed in the State Senate, but, for now, all notary services in New York State must be conducted the old-fashioned way: in person.
Executive orders also permitted state professional license holders, including Notaries Public, whose commissions or licenses had expired during the pandemic to continue to provide professional services. Now, all such commissions and licenses must be renewed within a statutory timeframe in order not to lapse.
What Hasn’t Changed?
Importantly, the recently enacted (and amended) HERO Act will still require all New York employers to create airborne infectious disease exposure prevention plans (“safety plans”) this summer, within 30 days of the model standards that the NYSDOL is expected to release any day now.
Other laws that emerged during the pandemic also remain on the books and in force. Two paid leave laws specific to COVID-19 in New York were implemented through legislation, rather than executive order — the COVID-19 quarantine sick leave law and the vaccine leave law. Under the quarantine sick leave law, employers must, depending on the number of people they employ, grant job protection and/or paid leave for employees subject to a quarantine or isolation order. The vaccine leave law grants employees up to four hours of paid leave of each COVID-19 vaccine shot (through December 31, 2022). Finally, the statewide paid sick leave law may be used for “for mental or physical illness, injury, or health condition, regardless of whether it has been diagnosed or requires medical care at the time of the request for leave,” which the NYSDOL has interpreted as also covering absences to recover from the effects of a COVID-19 vaccine.
State and local health officials’ authority to issue a quarantine order or other health and safety directives derives from the New York Public Health Law, and has never been tied to the state of emergency. If an employee presents a properly issued local quarantine order, employers should honor its validity and comply with any paid leave laws or employer leave policies. We recommend that in such cases, employers continue to comply with health and safety protocols, including contact tracing, quarantining, etc., and in accordance with the current guidance provided by the Centers for Disease Control and Prevention (“CDC”).
Employers also remain permitted to require or encourage employees to become vaccinated, in accordance with the guidance issued by the Equal Employment Opportunity Commission, so long as reasonable accommodations that do not impose an undue hardship are provided to those who have a right to them under the Americans with Disabilities Act or Title VII of the Civil Rights Act of 1964.
Finally, as we noted when we explained Governor Cuomo’s June 7, 2021, announcement about the plan to lift restrictions when 70 percent of adult New Yorkers received a dose of the COVID-19 vaccine, CDC recommendations for mask wearing remain status quo: while fully vaccinated individuals do not need to wear masks, those who are not vaccinated or whose vaccination status is unknown do need to wear masks.
What New York Employers Should Do Now
- Be on the lookout for the NYSDOL’s issuance of model standards under the HERO Act so that you can prepare your compliant safety plan within the requisite 30 days.
- Engage in the interactive process or cooperative dialogue as required for any employee who may be entitled to a reasonable accommodation due to a disability or a sincerely held religious belief that prevents them from obtaining a COVID-19 vaccination.
- Continue compliance with the State’s paid leave law requirements relating to quarantine and isolation orders and vaccination.
- Maintain workplaces with heightened sanitation and ventilation.
For more information about this Advisory, please contact:
| Susan Gross Sholinsky New York 212-351-4789 sgross@ebglaw.com |
Nancy Gunzenhauser Popper New York 212-351-3758 npopper@ebglaw.com |
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