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On February 22, 2022, New York State Supreme Court Justice Wilma Guzman issued an order reinstating a terminated doctor to the residency program he had been accepted into. The hospital had previously accused the doctor of failing a drug test and terminated him. Employment lawyers Famighetti & Weinick PLLC challenged the hospital’s decision in an Article 78 proceeding and prevailed. Today’s Long Island employment law blog discusses the case.

The following facts are taken from publicly available documents in the matter of Papadas v. City of New York and Jacobi Hospital.

In this case, F&W’s client was a Greek citizen who had applied for a medical residency program in the United States. To be placed in a residency program, doctors apply via a national program which matches residents with hospitals. In other words, doctors don’t apply to individual hospitals, but rather participate in a placement program.

The #MeToo movement highlighted the prevalence of sexual harassment in workplaces across the country and in New York. For years, if not decades, employers have had a variety of ways to keep instances of workplace sexual harassment in the dark. One way was confidential settlement agreements. In other words, employers could pay employees alleging sexual harassment to “keep quiet.”

Another way, was to require that employees who were alleging workplace sexual harassment fight their claims in mandatory secret arbitration, instead of publicly in court. Today’s Long Island employment law blog discusses a new law passed by Congress which addresses these forced arbitrations.

Since the beginning of the #MeToo movement’s growing publicity, lawmakers have worked to take away employer’s tools for silencing sexual harassment victims. Federally, Congress altered the tax code to prohibit payments to sexual harassment victims from being categorized as a deductible business expense when the employer requires confidentiality about the payment, as a term for payment. Arguably, the goal was to make employers re-consider whether payments should be confidential and to provide incentive for employers to remove confidentiality terms from settlement agreements. F&W would argue that this is not effective.

Whistleblower retaliation is perhaps one of the most misunderstood employment law claims in New York. Many employees believe a broad whistleblower law protects a variety of employee conduct and that when employees complain about any number of workplace issues, they are automatically protected against retaliation by the employer.

In fact, New York’s whistleblower law is remarkably narrow. The New York employment lawyers at Famighetti & Weinick PLLC have previously blogged about the limitations of New York’s whisteblower statute, codified as New York Labor Law 740. But, on January 22, 2022, the law is set to expand. Today’s Long Island employment law blog explains the changes coming to New York’s whistleblower law.

Under the existing New York whistleblower law, workers in New York were protected against retaliation by employers when employees engaged in certain protected acts. To invoke the protections of the act, employees had to have disclosed an illegal activity of the employer. Further, it was not enough that the employer just engaged in unlawful activity. The violation must have threatened the health or safety of the public or constitute healthcare fraud. In other words, the law’s coverage was remarkably limited.

As we predicted when the order issued on September 15, 2021, Justice Laurence Love has lifted an order he issued which would have blocked a New York City Vaccine Mandate from taking effect. Last week, the court issued a temporary restraining order prohibiting a New York City law from taking effect which would have required City DOE employees, and others, to take the Covid-19 vaccine.

The September 15 order was issued without the Court having heard from New York City. Further, the order seemed to conflict with existing law concerning vaccine mandates. Thus, we opined that the order would not remain in effect very long.

Indeed, on September 22, 2021, the judge lifted order. In a written decision, Justice Love noted that he understands that many people have objections to the vaccine, whether it be based on religious grounds, medical reasons, or other personal beliefs. He further acknowledged that DOE employees have already persevered through working on the front lines of the crisis.

On Tuesday September 14, 2021, two judges issued orders blocking vaccine mandate requirements from taking effect in New York. One ruling from a federal judge, blocks a state requirement concerning health care workers and another ruling from a state court judge blocks a New York City requirement concerning city workers. What do these rulings mean for the future of the mandates? Today’s Long Island employment law blog discusses these orders.

Federal Judge Blocks State Health Care Worker Vaccine Mandate

On August 26, 2021, New York State’s Department of Health issued a rule that requires that healthcare workers in the state get a Covid-19 vaccine. Workers in hospitals and nursing homes must receive a first dose by September 27, 2021 and others must receive a first dose by October 7.

Across the United States, COVID-19 vaccine mandates are rolling out. Schools, colleges, employers, states, and health care facilities are requiring students, employees, and others to be vaccinated against COVID-19. Since the mandates have been announced, the employment and civil rights attorneys at Famighetti & Weinick PLLC have been busy fielding calls about individuals concerned about the vaccination requirements. Today’s Long Island employment law blog provides answers to Frequently Asked Questions about COVID-19 vaccination mandates.

  • Can my employer require that I take the COVID-19 vaccination?

Generally, yes. At least one federal court as well as the federal government’s Equal Employment Opportunity Commission (EEOC), have suggested that employers can mandate that employees get the COVID-19 vaccine. Employers may be required to provide reasonable accommodations or exemptions for employees who cannot take the vaccine because of a medical condition or a sincerely held religious belief. General objections to the vaccine are not a lawful basis to refuse. We previously blogged extensively about this question. To learn more about the court decision concerning COVID-19 vaccination, click here. Our comprehensive blog about workplace vaccination requirements is here. Though we agree that it is not an ideal answer, a Texas court has suggested that if employees do not want to take the vaccine for reasons unrelated to a medical contraindication or religious belief, employees can quit and work for an employer that does not require vaccinations.

Long Island civil rights attorneys Famighetti & Weinick PLLC have been following the law concerning mandatory vaccinations. Recently, we blogged about the legality of workplaces requiring that employees be vaccinated. Throughout the pandemic, we opined that courts would give deference to government regulations aimed at curbing the spread of COVID-19, based on a 1905 Supreme Court case.

Throughout the summer of 2021, as vaccinations rates decline and the virus continues to spread, mandatory vaccination requirements are rolling out. Employers, governments, schools, colleges, and universities are all implementing vaccination requirement rules. In Indiana, Indiana University decided to require that all of its students must be vaccinated against COVID-19 to attend the school’s next semester.

Eight students challenged the University’s rule and the Seventh Circuit Court of Appeals heard the challenge. Today’s Long Island civil rights blog discusses the decision.

On May 5, 2021, New York Governor Andrew Cuomo signed the New York Health and Essential Rights (HERO) Act. The law is designed to protect workers from exposure to infectious disease outbreak.

The HERO Act defines covered employees broadly as independent contractors, part-time employees, domestic workers, home health and personal care workers, seasonal workers, and contractors or subcontractors. State employees, government employees, and independent contractors of the state are excluded.

Employers are similarly broadly defined, but are limited to private employers who employ more than ten employees.

Long Island employment law firm Famighetti & Weinick, PLLC recently hired a summer law student intern, Danielle Jacobs. Danielle is a second year student at the Maurice A. Deane School of Law at Hofstra University.

During her time as an intern, Danielle has conducted research and drafted memoranda. Danielle has observed Mr. Famighetti and Mr. Weinick at consultations and arbitration hearings for labor and employment law topics. Additionally, Danielle assists Mr. Famighetti and Mr. Weinick by drafting intent to sue letters, complaints, rebuttals, and settlement agreements, along with writing blog posts on commonly asked questions by clients such as the NYC Mandatory Retirement Plan and the NY HERO Act.

During her time at Hofstra Law School, Danielle has achieved a GPA of 3.72 and is in the top 8.4% of her class. She also recently earned membership as a Staff Member on the Hofstra Law Review for Vol. 50. Danielle holds a Merit Scholarship and a Dean’s Honor Scholarship from Hofstra Law School. Throughout her first year of law school, Danielle also became an active member in the Hofstra Law Women’s club and the Public Justice Foundation. The Public Justice Foundation helps raise money and awards fellowships to students who devote their summers to working in an area of public interest and are unable to be paid while doing so. Danielle spoke with alumni, family members, and friends in order to raise money for the Public Justice Foundation.

On May 11, 2021, The City of New York enacted a local law that requires private sector employers located in New York City to provide a mandatory retirement savings program for their employees.

This program creates a mandatory auto-enrollment deduction individual retirement account (“IRA”) program for employees that work for private sector employers that employ five or more employees and do not currently offer a retirement plan, such as a 401(K), 403(B), or a defined benefit pension plan.

The law does not require employers to contribute to these plans. However, employers must remit funds deducted from the earnings of each employee for deposit into the program similar to the requirements for the Employee Retirement Income Security Act of 1974 (ERISA). Employers are required to inform the employees about the program. Employers are also required to maintain records of compliance with the program for up to three years.

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