DELTA DAWN: What’s That Glower You Have On?

Dear HL Clients and Friends,

We humans think we are so smart.  The top of the food chain, masters of our domain, the only true “intelligent” life on earth. And here we are getting our brilliant asses kicked over and over by this simple but crafty microorganism that preys on the fears and sheer stupidity of our species. It’s not a fair fight.

All we have to do is roll ’em up and get a shot and we win.  But half the country refuses to get behind that because here in America we like to choose sides and be on teams and show our loyalty come hell or bywaters. There is no middle ground. You get pummeled in a parking lot for supporting the visiting team.  Beaten in the bleachers for rooting for the other guys.  And now, that same blind allegiance to team anti-vax is sickening and killing so many of us.  Three cheers for pandemic politics.

How do we turn the tide?  Who can convince the anti-vaxxers that this is not a political football game and that we should all be rooting for same team against a common enemy? At this point, because we are beyond reason, we have no choice but to punish those who take our health for granted.  Send them to their rooms and take away their barbecue and their beers and their vacations and their good time.  Sure, there will be kicking and screaming and trolling but I bet the loss of those liberties will eventually change their minds and get them off their asses to do the right thing.

So, let’s do our part and get our mandatory vaccine policies in place for our guests and our co-workers and let’s vigilantly enforce them and try our best to keep our friends and families and staff and customers safe and maybe in the process, get everyone to root for the same team.  At this point, what choice do we have?

For more on mandates and vaccines, here’s our partner Lee Jacobs…

More people are getting sick with COVID-19—even those who got the vaccine, or already had COVID, or both.  And the CDC confirmed it today too.  While we await the federal guidance to filter down to state and city regulations, it’s safe to assume that mandatory facial coverings for indoor settings, regardless of vaccination status, is coming soon. 

If this happens, you must enforce these rules as they apply to you.  There will be no second chances or excuses when the SLA or other agencies perform a spot investigation.  Since the onset of the pandemic, the government has consistently stepped up its enforcement following the implementation of rule changes.  Let’s brush off those NY Forward Plans and be ready to implement them when needed.

With the end of summer quickly approaching and the return to school and more indoor activities on the horizon, it wouldn’t be a bad time to secure some extra PPE and to confirm your contract with your propane distributor for your outdoor heaters.  I’d also strongly recommend that you register for our newsletter and for HR Confidential, the firm’s Employment Practices newsletter, and brush up on what current regulations and best practices dictate. 

Here are the most frequently asked questions that we have been getting about vaccines, masks, sick-pay, and best practices.  Remember, these rules can (and do) change quickly.  More than anything please stay tuned and keep yourself abreast of the requirements as they apply to you and your business.  And when there is any doubt, we are here to help.  As I have been saying since March 2020: we are all in this together, and we will get out of this together.

VACCINATIONS

Can I require that all my employees be vaccinated?
Yes.  You can, but we recommend that employers stick to strongly encouraging their employees to get vaccinated. Here are a few caveats to keep in mind, whether you decide to go the mandatory or encouragement route:

1. Before you even implement a policy, you should speak with us to make sure you are following all guidelines.
2. Your vaccine policy must be in writing and distributed to all staff along with your reasonable accommodation policies and procedures.
3. Some employees may have personal reasons for not being vaccinated; these can include pre-existing health conditions or religious exemptions. You must take these reasons into account and accommodate these employees. Failure to do so can be costly.
4. You must provide a reasonable period of time for employees to comply with the new vaccine policy – we recommend at least five (5) weeks.
5. Apply the same new rules to applicants and new hires.

Do I have to pay my employees to get vaccinated?
New York State requires employers to compensate employees for up to four hours at their regular rate if they get vaccinated during business hours, with a maximum of two times per shot (for the Moderna and Pfizer vaccines).

What about mandatory vaccinations for new hires?
Again, we think strongly encouraging vaccination is the best practice here, and the same accommodations and timing as above apply.

Can I offer an ~*incentive*~ to encourage employees to get vaccinated?
Yes, you can offer incentives to your employees to encourage them to get vaccinated, but according to the U.S. Equal Employment Opportunity Commission (EEOC) employers can only offer de minimis incentives for Wellness Programs, which vaccine encouragement would fall under. What’s a de minimis incentive? Yes to the $10 Starbucks gift card, no to the Chateauneuf-du-Pape.

What are you not telling me about vaccinations?
The hardest part is enforcing a policy like this one, while applying the same standards to your guests, too.  To be clear, this can be done, and effectively so.  But you really need to think through the policy through before implementing it.  If your staff are mandated to be vaccinated, shouldn’t your guests be too?  While both scenarios are legal (while ensuring that the unvaccinated employee has a safe and reasonable accommodation), what signal are you sending to your employees that you won’t hold your guests to the same health & safety standards as you do your employees?  And, what will be considered proof of the vaccine?  Are they medical records?  What are you doing with them?  And finally, who will be enforcing these rules?  Your host/greeter?  Also, will you be checking up on those employees who promised to get vaccinated, but never actually do?  Will you enforce all of these requirements to all of our job applicants and hires?  Unless and until you are able to answer these operational concerns, you probably shouldn’t implement any vaccination policy.  But when you are ready, we are here to help.

Masks

What are the current rules about wearing masks for both staff and guests?
Vaccinated persons, under most circumstances, including your employees, do not have to wear masks or facial coverings.  Unvaccinated individuals are responsible for wearing masks, in accordance with federal CDC guidelines.  As a business owner, you can choose to require proof of vaccinations or to follow an honor system.  Nonetheless, you are authorized to require masks and six feet of social distancing for employees and guests within your establishment, regardless of vaccination status.

Can I require that all employees wear masks, absent a state mandate?
Yes.  Regardless of their vaccination status you can require your employees wear a facial covering.  You must also provide masks and other reasonable PPE to your employees at no cost to them.

Can an employee refuse to wear a facial covering?
No.  Depending on why you are implementing this policy (as either a health and safety measure or a part of your dress code), just as in all employment requirements, if an employee is unable to comply because they have a disability or medical condition, it is best to start a dialogue with the employee to determine a reasonable accommodation by engaging in the interactive process under the Americans with Disabilities Act.  Depending on your business and the employee, an accommodation for an employee may mean installing physical barrier, a workstation that is physically distant from others, or remote work.

What if the employee is vaccinated, can they refuse?
No, even if they are vaccinated, they cannot refuse to comply unless they have been granted a reasonable accommodation.  Repeated violations should result in the employee being written up, disciplined and/or terminated.

Can I force my employees to wear masks, but not my guests?
Yes.  But again, remember the optics.  If you are reinstituting a policy (re-masking your staff), what will your staff think if you are forcing them to wear a mask and not your guests?  If you have kept the requirement in place, then you don’t have to change a thing.

What are you not telling me?
Who is going to be the mask police?  Is it just the nose?  The entire mouth?  A momentary lapse?  Without clear rules and expectations (which should be reduced to writing and distributed to your staff) and an even-handed enforcement mechanism that is applied the same for your best and worst employees, you are most likely exposing yourself to unneeded exposure.  Again, not saying this can’t be done, but in the absence of a government mandate, we usually get into trouble by not equally the rules across our enterprise.

What if the government mandates mask wearing again?
Enforce it!  Make sure you understand the rules as they apply to you and enforce the rules.  Who will be your boots on the ground enforcer of the mandate?  Failure to do so could be costly; if your staff (or guests) are caught not wearing masks during a governmental inspection, you will be fined and maybe even shutdown.

SICK PAY REFRESHER

Are my employees eligible for sick pay?
Yes.  And they have been since the pandemic’s onset.  The state has increased the mandated amount of leave as the pandemic has continued and changed.  Workers who have COVID-19 or were in contact with someone with COVID-19 can get sick leave (time off) regardless of immigration status. State and local laws let workers take time off to care for themselves or a family member. For example, workers can take time off to quarantine or isolate or if their child’s school or childcare closes. Depending on your location, size, and circumstances of your employee’s need to take time off, they may be eligible for paid and/or unpaid time off, as well as job protection. They can receive benefits and/or protections from the:

1. New York State Emergency COVID-19 Paid Sick Leave Law
2. New York State Paid Family Leave Law
3. New York City or New York Paid State Safe and Sick Leave
4. New York State Disability Rules
5. Federal Family Medical Leave Act

Depending on your size and/or income, your employees could be eligible between 5 to 14 days paid sick days in addition to their accrued sick and safe leave. If you should have any questions about this—we know it’s tricky—please do not hesitate to reach out.  We are here to help.

My employee previously had COVID and got COVID Sick Leav; can they get paid sick leave again?
Yes.  Under current guidance, your employees would be eligible for up to THREE separate leaves of COVID Sick leave if they are subject to three orders of quarantine or isolation—but only if the second and/or third quarantine order is based on their own positive diagnosis.  Therefore, it is possible, for a large employer with more than 100 employees, for your employees to be eligible for 56 hours of NYC/NYS Safe and Sick Leave AND 42 hours of COVID leave for a total of 98 hours of sick leave!  COVID Leave is in addition accrued NYS/NYC Sick and Safe Leave.

My employees are reporting close contacts with someone who has COVID, can they come to work? What about a COVID diagnosis?
It depends.  Current guidance dictates that if your unvaccinated employee must quarantine for 10 days after a close contact with a positive COVID-19 (exceptions for essential workers can apply here).  If your employee is vaccinated, and not exhibiting any symptoms, then they do not need to quarantine.  If your employee is vaccinated and shows symptoms, they must isolate for at least 10 days from when their symptoms first appeared and until after 24 hours have passed without the need of fever-reducing medicine.  If a vaccinated employee has a positive diagnosis, they must isolate for at least 10 days from when their symptoms first appeared and until 24 hours have passed without the need of fever-reducing medicine.  If your vaccinated employee tests positive and does not show any symptoms, they only need to isolate for 10 days from the positive test.

An employee has tested positive at work, what do I have to do?
Guidance is literally changing day by day, best practice dictates that we: (1) do a thorough a deep clean of any spaces where the infected employee was working (while following CDC guidelines); (2) alert staff who came into close contact (within 6 feet for at least 10 minutes over a 24 hour period) of the positive diagnosis while maintaining the confidentiality of the sick employee; (3) support and assist your workforce in getting testing and medical services where needed.

I also take this time to remind you of HR Confidential, the firm’s Employment Practices dedicated program where we send out monthly newsletters, relevant alerts and hold webinars on topics just like those discussed in this message.  Please click on the link below to register.

https://mailchi.mp/653d3ed5730b/hr-confidential

As always, should you have any questions or concerns, please do not hesitate to reach out to me at [email protected].  We are here to help.  It looks like we are heading back into potential scary times—we are all in it together—and I promise you, we will get out together!

Lee

And here’s Mr. Regs, Joseph Levey to update us on Open Dining and the SLA…

Joey Regs Says…….

The SLA’s approach to the logistics of licensing vis-a-vi the Pandemic is constantly evolving -especially with respect to how it relates to your “special” outdoor seating allowances.  And, in light of the news that the programs will be extended for another year [at least], the guidance has just been updated once again.  Please see below…

If you have registered for DOT open dining prior to July 7, 2021 and wish to continue, Please follow the instructions below:

On or before October 5th, you must notify the SLA in the following manner:

• Send the SLA and email at [email protected] with your main license serial number in the subject line;
• In the email, include a copy of your DOT Outdoor Dining Permit (this was probably sent to you as an email or PDF attachment when you received it);
• A diagram showing your already licensed area AND the outdoor space that you have added whether it be in the roadway or the sidewalk.

Please note that while the SLA will confirm your email at some point, it will not be right away and you do not have to wait for SLA confirmation to continue the use of the outdoor space.

If you have NOT registered for DOT open dining prior to July 7, 2021, but would like to begin, please follow the instructions below:

You must notify your local Community Board via hand-delivery or registered mail, using the specific notification form (accessible on the SLA website).  After 30 days has passed since your notice to your local Community Board, or if your Community Board has waived notice, you must:

• Email [email protected]  with your main license serial number in the subject line;
• In the email include proof of receipt by your Community Board or waiver from your community board;
• A copy of the permit that you will receive once your register with the DOT;
• A diagram showing your already licensed area AND the outdoor space that you have added whether it be in the roadway or the sidewalk.

Licensees should wait 5 calendar days for a response from the SLA.  If a disapproval email is not received by you in 5 days, your application is considered approved.

For those of you who have NOT registered with DOT for outdoor dining yet, you can do so here:
https://www1.nyc.gov/html/dot/html/pedestrians/openrestaurants.shtml

Joey Regs out and lastly our friends and Scotto & Melchiorre on forgiveness…

PPP Forgiveness
If you have not yet submitted a forgiveness application for your First Draw PPP Loan, you may be obligated to start making payments on your loan soon. While you can apply for forgiveness any time up to the maturity date of the loan, loan payments are only deferred up to 10 months after the last day of your covered period. If your loan was less than $150k, you must submit for forgiveness through your lender as you are not subject to automatic forgiveness. If you have any questions/concerns related to use of funds and recordkeeping, please reach out to [email protected] for assistance.

Here’s the excellent Tanya Tucker with Delta Dawn:  https://www.youtube.com/watch?v=Ir3gAak9LkY

Good night,
David