The Empire State Chapter is dedicated to answering your important COVID-19 related questions. We have created the following FAQ page to help do so. As always, please call your Membership Director if you need any assistance.
NYS Mask Update
- Effective Wednesday, May 19, the New York State Department of Health is adopting the mask requirements released by the CDC last week.
- If you are fully vaccinated, you can resume activities that you did prior to the pandemic.
- Fully vaccinated people can resume activities without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.
- Unvaccinated and immunocompromised individuals are still required to wear masks.
- Masks will still be required on public transportation, in nursing homes and other healthcare facilities, in homeless shelters, in schools, and in correctional facilities.
- Individual businesses will be allowed to require masks at/inside their establishments at their discretion.
- Click this link for more information Interim Public Health Recommendations for Fully Vaccinated People | CDC
Issues Regarding Mandatory Vaccinations
Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?
No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.
Where can employers learn more about Emergency Use Authorizations (EUA) of COVID-19 vaccines?
Some COVID-19 vaccines may only be available to the public for the foreseeable future under EUA granted by the FDA, which is different than approval under FDA vaccine licensure. The FDA has an obligation to:
[E]nsure that recipients of the vaccine under an EUA are informed, to the extent practicable under the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.
The FDA says that this information is typically conveyed in a patient fact sheet that is provided at the time of the vaccine administration and that it posts the fact sheets on its website. More information about EUA vaccines is available on the FDA’s EUA page.
If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability?
The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r). Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.
If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the FMLA or under the employer’s policies. See also Section J, EEO rights relating to pregnancy.
Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.
Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but as explained further in Question K.7., there may be situations where an accommodation is not possible. When an employer makes this decision, the facts about particular job duties and workplaces may be relevant. Employers also should consult applicable Occupational Safety and Health Administration standards and guidance. Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/.
Managers and supervisors are reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.
If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief?
Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act. Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.
What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief?
If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.
Other Vital Questions
1. Am I required to pay people who are out on quarantine by me or local/state health departments?
Yes. When you send someone home because they have symptoms of COVID-19 or to get tested you must pay them under the New York State COVID Paid Sick Leave.
Employers that do not currently offer sick leave to some or all of their employees may want to draft non-punitive “emergency sick leave” policies. Ensure that sick leave policies are flexible and consistent with public health guidance and that employees are aware of and understand these policies.
Click here for more information on the New York State COVID Sick Leave
2. Can I require my employees to get vaccinated as part of their employment?
At this time there is no clear opinion on the topic and may vary from state to state. ABC has organized an upcoming webinar on this topic. We encourage you to sign up today. Register by clicking here
3. Am I required to pay my employee if they leave work to get their vaccine?
Yes. Employers are required to provide 4 hours of paid leave so employees can receive their COVID vaccine.
See the Paid Leave for COVID-19 Vaccinations fact sheet for more information.
4. Who is eligible at this time to receive a vaccine?
Vaccine eligibility has now opened up for a majority of adults in New York State
- All individuals over the age of 30 are now eligible
- Effective April 6th, all individuals over 16 years of age will be eligible
- Effective May 1st, all individuals will be eligible
5. How do I find the closest vaccine site?
Click here to find vaccines
6. How do I find the closest testing site?
Click here to find the closest testing site.
7. An employee called to say they were or may have been exposed to COVID-19. What do I do?
Employees who may have been exposed to the virus should stay home and monitor their symptoms. If after 72 hours, they remain symptom free, you can consider bringing them back to work. However, we recommend before bringing them back you require them to get tested.
For the rest of your employees, before you send them home or you ask them to get tested:
- Have they been wearing a mask?
- Are they working more than 6 feet apart?
- Have they filled out their daily COVID-19 questionnaire?
If the answer to the above are yes, they can continue to work but you should monitor them for any symptoms.
Refer to question 1 about paying the employee
*The CDC has now defined prolonged exposure as being mask-less and closer than 6 feet for more than 15 minutes. If anyone matches that criteria we encourage you to pull them from the workforce and get them tested.
8. What should I do if an employee comes to work with COVID-19 symptoms?
Employees who have symptoms when they arrive at work or become sick during the day should be immediately sent home. They should not return to work until they no longer feel symptoms of COVID-19 after isolation and have consulted with a healthcare provider. You may require them to get a test before they can return to work.
After 24 hours without a fever, the employee can return to work as long as they continue to monitor their symptoms.
Do I have to pay them? Yes. See answer 1
9. What happens if one of my employees tests positive for COVID-19?
In most cases, you do not need to shut down your office or jobsite. If it has been less than 7 days since the sick employee has been in the office or on the site, close off any areas used for prolonged periods of time by the sick person:
- Wait 24 hours before cleaning and disinfecting to minimize potential for other employees being exposed to respiratory droplets. If waiting 24 hours is not feasible, wait if possible. During this waiting period, open outside doors and windows to increase air circulation in these areas.
- Inform employees of their possible exposure but maintain confidentiality as it relates to state law.
10. How do I bring back an employee that tested positive?
Persons with COVID-19 who have symptoms and were directed to care for themselves at home may discontinue isolation under ALL the following conditions:
- At least 10 days* have passed since symptom onset
- At least 24 hours have passed since resolution of fever without the use of fever-reducing medications
- Other symptoms have improved
Employees can return to work after meeting all quarantine breaking requirements listed here: Disposition of Non-Hospitalized Patients with COVID-19 | CDC
You can require them to get tested before returning to work. However, the policy must be non-discriminatory, and consistent. Test for Current Infection | CDC
11. I have an employee that has been out of work for more than 7 days after testing positive, is there anything I need to do on the jobsite or in the office?
If it has been 7 days or more since the sick employee used the office or jobsite, additional cleaning and disinfection is not necessary. Continue routinely cleaning and disinfecting all high-touch surfaces in the office or jobsite. Continue to ensure that all your employees monitor their symptoms and fill out their daily COVID-19 questionnaire.
12. What if the employee never felt symptoms but did have a positive test?
Persons infected with COVID who never develop symptoms may discontinue isolation and other precautions 10 days after the date of their first positive test.
13. I’m a subcontractor who had an employee test positive. Do I need to notify the general contractor?
First, you must ensure all your employees are filling out their daily COVID-19 questionnaire. You need to notify the general contractor of the positive test and the last time that employee was on the jobsite.
Refer back to Question 4 about dealing with employees who have tested positive
14. As a general contractor who was notified by a subcontractor of a positive COVID test. What are my notification responsibilities?
A general contractor needs to notify the project owner and other subcontractors.
ABC Empire State Chapter conducted a webinar that covers contractual requirements, click here for more information.
15. I’m a subcontractor, can I refuse to work on a site where the general contractor had someone test positive?
ABC Empire State Chapter conducted a webinar that covers contractual requirements, please click here for more information.
16. If I must shut down my office or my worksite job trailer what steps do I need to take?
Ensure your office staff have the proper equipment to work from home. You should consider having a professional service clean your office during the shutdown, however it’s not required.