Updated NY State + NYC COVID-19 Guidelines Bring Welcome Relief for Hospitality Employers
Article contributed by Nija M. Davis-Pedlar and Valerie Bluth, Ellenoff Grossman & Schole LLP
Over the last few months, New York State and New York City have announced a number of significant changes to the rules imposed on New York employers to address COVID-19 in the workplace.
New York State Relaxes Quarantine and Isolation Periods for COVID-exposed Workers
For hospitality employers, the change that may have the biggest impact is the elimination of quarantines after coming into close contact with someone who has tested positive for COVID-19.
On September 14, 2022, the New York State Department of Health confirmed that going forward New York would adhere to the rules and regulations issued by the United States Center for Disease Control (“CDC”). Under those federal guidelines, now adopted by New York State, if asymptomatic individuals suspect or can confirm exposure to COVID-19, they are no longer required to quarantine, regardless of their vaccination status. Before the September 14, 2022 update, only fully vaccinated and boosted individuals in New York could bypass the quarantine period (so long as they were asymptomatic). Now, all individuals must wear a mask for 10 days upon being informed of exposure, wear a mask anytime they are around other people, and get tested at least five-full days after their last exposure, even if they remain asymptomatic. Only if someone tests positive do they need to isolate in accordance with the below.
In addition, New York following the CDC guidelines results in a shortened isolation period for individuals who are symptomatic or test positive for COVID-19. Previously, these individuals were required to isolate for 10 days after the onset of symptoms (or if asymptomatic, the date they tested positive). Now, individuals must isolate for a minimum of 5 days, provided their symptoms are improving and they have been fever-free for 24 hours without the use of fever-reducing medication. After ending isolation, individuals must wear a mask when interacting with others through day 10, regardless of their vaccination status, however, with two negative tests taken 48 hours apart, individuals may remove their mask sooner than day 10.
That said, employees are not required by CDC or New York guidelines to obtain a negative test to return to work after testing positive, and should not be encouraged to do so – if the employee continues to test positive, they would need to continue isolating through day 10 instead of returning to work after day 5 with a mask on. And, depending on the size of the employer, the employee may be entitled to additional paid COVID-19 sick leave if they continue to test positive, at least through the end of 2022.
New York City Relaxes Vaccination Mandate for Private Employers Effective November 1, 2022
Since the beginning of the pandemic, New York City has faced a number of challenges due to its vast population and residents living and working near one another. Accordingly, once a vaccine became readily available, former mayor de Blasio enacted a COVID-19 vaccination mandate in December 2021 that applied to all private sector employers in New York City and required all employers to verify that individuals who physically worked at or on their job sites were fully vaccinated. Moreover, under the previous mandate, private businesses were prohibited from allowing unvaccinated individuals to work absent an accommodation. This vaccine mandate exacerbated an already-problematic labor shortage in the hospitality industry, in that employees who would not or could not be vaccinated against COVID-19 were not permitted at work.
Now, nearly three years after the start of the pandemic, the mandatory vaccine requirement for private employers in New York City is ending.
On September 20, 2022, New York City Mayor Eric Adams announced that on November 1, 2022, the City of New York would no longer require private sector employees to be fully vaccinated against COVID-19. This means that private sector employers in New York City, including hospitality employers, can now choose themselves whether or not to require their employees to be vaccinated, however, Mayor Adams continues to strongly encourage private sector employers to implement COVID-19 vaccine requirements in addition to encouraging booster shots as the best way to promote a COVID-free workplace and keep New Yorkers safe.
With the November 1 changes to the private employer vaccination mandate, private sector employers now have the freedom to hire unvaccinated individuals or bring employees who may have been put on unpaid leave, back to work. The lifting of the mandate also brings with it some additional flexibility regarding reasonable accommodations – previously, a religious accommodation required both always wearing a mask and weekly PCR testing. Now, an employer could relax the mask and/or test requirement, or switch to an at-home test instead of a PCR test.
Moving forward, private-sector hospitality employers should review their policies regarding COVID-19 vaccination and other health/safety protocols and are urged to consult with legal counsel to ensure they comply with the current and soon to be effective rules and regulations on both the state and city level, as applicable.
Nija M. Davis-Pedlar is an Associate in the Labor and Employment Practice Group at Ellenoff Grossman & Schole LLP in New York City. Ms. Davis-Pedlar has experience representing management in traditional labor relations, employment counseling, and wage and hour claims. Before joining Ellenoff Grossman & Schole LLP, Ms. Davis-Pedlar was an associate with The Realty Advisory Board on Labor Relations, where she aided in defending employers in the grievance and Arbitration process, and partook in the negotiation of collective bargaining agreements on behalf of employers.
Valerie Bluth is a Partner in the Labor & Employment Group at Ellenoff Grossman & Schole LLP. For more than ten years, Ms. Bluth has exclusively represented and advised clients in employment-related matters, with a particular focus in the hospitality industry. Above all, Ms. Bluth works tirelessly to ensure clients are in compliance with an ever-changing landscape of federal, state and local employment laws, especially with respect to pay practices and employment policies, and to devise practical solutions for any employment problems that might arise.
Nija M. Davis-Pedlar ([email protected]) and Valerie Bluth ([email protected]) can be reached via phone at 212-370-1300.
