Strengthened Whistleblower Protections For Employees in New York Go Into Effect in January 2022

Beginning January 26, 2022, private sector employees in New York will enjoy stronger whistleblower protections.

Under new changes to New York Labor Law section 740, employers cannot retaliate against an employee who discloses or threatens to disclose to a supervisor or to a public body, an activity, policy or practice of the employer that the employee “reasonably believes” is in violation of a law, rule or regulation, or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.

What This Means:

This is a significant expansion of the whistleblower law. Before the changes, Section 740 only provided whistleblower protection for employees who reported or threatened to report actual violations of law which presented a substantial and specific danger to the public health or safety. Importantly, the amended law will protect current employees, former employees, and independent contractors. The prior law only protected current employees.

The amended statute defines “law, rule or regulation” as: (i) any duly enacted federal, state or local statute or ordinance or executive order; (ii) any rule or regulation promulgated pursuant to such statute or ordinance or executive order; or (iii) any judicial or administrative decision, ruling or order.

Under the law, “retaliatory action” means an adverse action taken by an employer or its agent to discharge, threaten, penalize, or in any other manner discriminate against any employee or former employee exercising his or her rights under this section, including:

(i) adverse employment actions or threats to take such adverse employment actions against an employee in the terms or conditions of employment including but not limited to discharge, suspension, or demotion;

(ii) actions or threats to take such actions that would adversely impact a former employee’s current or future employment; or

(iii) threatening to contact or contacting the United States immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member to a federal, state or local agency.

Penalties:

An employee whose rights have been violated may file a civil lawsuit within two years after the occurrence. If the employer is found liable, the court may order relief, including reinstatement, compensatory damages, punitive damages, and attorneys fees.

Can an Employer Require its Employees to Get Vaccinated Against COVID-19?

Employers can require employees to get vaccinated for COVID-19…with exceptions.

This week, Americans received welcome news as the President announced that the U.S. would have enough doses of Coronavirus vaccines for every adult by the end of May.  As COVID-19 vaccines are approved and distributed across the country, business owners and workers are wondering: Can an employer make vaccination mandatory for employees?

The short answer is “Yes.”  The longer answer is “It depends.”  The United States Equal Employment Opportunity Commission recently issued guidance stating that a mandatory vaccine policy is not prohibited under federal employment laws but must account for individual situations.   Notably, employers must understand that the COVID-19 pandemic does not relieve them of their obligation, under laws such as the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII) to accommodate an employee’s disability or sincerely held religious belief. Of course, employers should first consider whether a mandatory vaccination policy is necessary or whether it should instead encourage or incentivize employees to get vaccinated.

Disability-related or Religious Reasonable Accommodations

Under the ADA, employers must provide reasonable accommodations to a qualified employee with a disability to perform the essential functions of a job.  Reasonable accommodations may mean a modification to a workplace-wide vaccination policy.  

Accommodations will vary on a case-by-case basis and, as with any other request for accommodation that an employer may receive, the employer should engage with the unvaccinated employee to identify potential workplace accommodations. The ADA creates an exception to employers’ obligations in the event of an undue hardship, which may include hardships associated with accommodation costs, finances of the organization, impact of the accommodation on company operations, among other factors.

Employees may also be entitled to a reasonable accommodation based on religious beliefs.   Under Title VII, once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving a vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an “undue hardship” to the employer.  The undue hardship must pose an actual cost or burden to the employer.

If an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, Title VII allows the to request additional supporting information.  However, courts have reached a wide range of conclusions on what is a “religious belief,” and employers should proceed cautiously.

An Employer May Ask an Employee to Show Proof of Vaccination 

Under the ADA, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.  According to the EEOC, asking or requiring an employee to show proof that they have been vaccinated is not a disability-related inquiry.  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, follow-up questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and are only lawful if they are job-related and consistent with business necessity.  The EEOC has advised that, 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.

The Takeaway

While the EEOC’s interpretation of federal employment laws is that they do not prohibit a vaccine policy, an employer considering whether to implement a mandatory vaccination policy should first consider whether it is necessary. Employers should also consider whether it may be better to encourage or incentivize employees to get vaccinated instead.

If an employer decides to adopt a vaccination requirement, it must clearly communicate with employees about compliance with the policy.  Managers and supervisors must also know how to recognize an accommodation request from an employee and how such a request should be handled.   If you are a worker with legitimate concerns or objections to vaccination, it is best to clearly raise the issue with your employer.

These guidelines leave a lot of room for nuance and interpretation.  The Fu Firm is ready to answer any questions and help employers and workers navigate these tricky issues.  Feel free to contact us at any time to discuss any issues you may have.