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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.

The Americans with Disabilities Act, or the ADA, is a federal law which regulates discrimination against individuals with disabilities. The law prohibits discrimination in several areas, including in employment. Like most words in the law, however, disability has a specific definition meaning that to be protected under the law, an individual must have a disability as defined by the ADA. On June 30, 2021, the Second Circuit Court of Appeals in New York joined other jurisdictions and took an expansive interpretation of the meaning of disability. Today’s Long Island employment law blog discusses the case.

To be covered under the ADA, an individual must have a disability as defined by law. The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities. If an individual has a medical condition that does not meet this definition, then the ADA does not apply and the individual is not entitled to reasonable accommodations under the law and is not protected from discrimination based on the medical condition.

In 2002, the Supreme Court of the United States narrowly interpreted the definition. The Court determined that the words used by Congress, such as major and substantially, implied that disability is a demanding standard. The Court further held that to qualify as a disability, a person’s impairment must be permanent or long term.

The Americans with Disabilities Act is a federal law which requires, among other things, that employers provide reasonable accommodations to employees with disabilities. But, what if, by providing an accommodation, the employer would be violating another federal law? Must the employer still provide that accommodation? Recently, the Second Circuit Court of Appeals in New York weighed in on this question. Today’s Long Island employment law blog discusses the Bey v. City of New York decision.

The Fire Department of New York (FDNY) maintains a policy that requires all firefighters to shave their facial hair in order to wear a tight fitting respirator to protect the firefighters from smoke and toxic fumes. The policy allowed for only short sideburns and trimmed mustaches that do not affect the area where the mask meets with skin.

Pseudofolliculitis Barbae (“PFB”) is a skin condition which causes pain, irritation, and scarring to men who shave with PFB. In other words, men with PFB cannot shave without enduring pain, irritation and scarring. PFB is more prevalent among black males than white males. Firefighters are not immune from PFB, thus some firefighters suffer from PFB, putting their medical condition on a collision course with the FDNY facial hair policy.

Long Island employment lawyers Famighetti & Weinick PLLC have been blogging about whether employers can lawfully require employees to be vaccinated against COVID-19. Our blogs have concentrated on guidance issued by the federal Equal Employment Opportunity Commission and have opined that workplace vaccination requirements are likely lawful, at least under federal law.

But, the EEOC’s guidance is not binding and there have not been any apparent court cases concerning the legality of vaccination requirements. On June 12, 2021, however, a Texas federal court dismissed a challenge to a Texas hospital’s workplace rules requiring that employees be vaccinated or be fired. 116 employees challenged the rule. Today’s Long Island employment law blog discusses the case.

On April 1, 2021, Texas hospital Houston Methodist, issued a policy directing that all of its employees must be vaccinated by June 7, 2021. 116 employees challenged the rule in federal court and asked that the court block the hospital from requiring that they be injected with the vaccine or be fired.

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