Labor and Employment COVID-19 FAQ

If a person chooses not to return to work, even though their place of business has reopened (i.e. gyms, offices) and their employer wants the employee to return, is the employee still able to claim unemployment benefits?

According to the New York State Department of Labor, typically, if a former employer has offered an employee the opportunity to return to their job, the employee is required to accept that offer. If the unemployed person turns down the job offer, they may no longer be able to receive unemployment benefits (either through traditional unemployment insurance or the COVID-19 Pandemic Unemployment benefits). Even though state law does not allow someone to turn down a job out of a general fear of COVID-19, some exceptions do apply. An unemployed person may be able to turn down a job offer and continue to receive unemployment benefits if that unemployed person is:

  • Diagnosed with COVID-19 or has symptoms of COVID-19;
  • Living with a household member who has been diagnosed with COVID-19;
  • Providing care for a family or household member diagnosed with COVID-19;
  • Primary caregiver for a child unable to attend school or another facility due to COVID-19;
  • Unable to reach place of employment due to an imposed quarantine or were advised by a medical provider to self-quarantine due to COVID-19;
  • Scheduled to commence new employment but cannot reach the workplace as a direct result of COVID-19;
  • Became a major breadwinner because the head of the household died from COVID-19;
  • Quit a job as a direct result of COVID-19;
  • Place of employment closed as a direct result of COVID-19;
  • Have insufficient work history and affected by COVID-19; or
  • Otherwise not qualified for regular or extended unemployment benefits and affected by COVID-19.

What remedies do landlords have against residential and commercial tenants if they don’t pay rent?

Governor Cuomo has extended the moratorium against COVID-related residential and commercial evictions through January 1, 2021. Under the Safe Harbor Act, no court can issue a warrant of eviction against a residential tenant who has suffered a financial hardship during the COVID-19 covered period for nonpayment of rent that becomes due during the COVID-19 period.

Although landlords are unable to evict tenants covered by the Safe Harbor Act, landlords can still seek money judgments for rent owed in a summary proceeding under article 7 of the real property actions and proceedings law.

How should citizens report violations of social distancing regulations to local authorities?

To report violations of social distancing, citizens have a few options depending on where and how the violation occurs. Citizens can file a complaint on the New York State website (https://coronavirus.health.ny.gov/new-york-state-pause). Here, citizens can file a complaint about an employer, place of work, business, location or incident in one’s local community in violation of “New York on PAUSE.” Citizens may also call 1-833-789-0470.

Citizens in Nassau County can contact ShutDownEnforcement@nassaucounty.ny.gov to report gatherings and non-essential businesses and organizations that are not complying with mandated closures. For more on reporting complaints, citizens can visit: https://www.nassaucountyny.gov/4967/Report-A-Complaint.

Suffolk County does not have a place to report violations of social distancing, however citizens can file complaints concerning consumer protections and business violations at: https://www.scnylegislature.us/CivicAlerts.aspx?AID=1540.

Must the name and contact information of citizen complainants be provided to defendants in cases alleging violations of social distancing regulations under the recently amended Criminal Procedure Law?

New York’s new discovery laws require “automatic discovery,” meaning that the prosecution must allow the defendant access to all materials relating to the case. The new laws create a “presumption of openness” between the prosecution and the defense. More specifically, the prosecution must give the defendant the names and contact information of any person who has relevant information regarding the case, and statements by any person with relevant information to the case, regardless of whether or not that person will be called as a witness. As a consequence of these new laws, for example, prosecutors must hand over the names and contact information of crime victims to the defense, and citizens reporting town code violations can no longer be anonymous.

However, citizens of New York are able to anonymously report violations of social distancing and the enforcement of “New York on PAUSE” (https://mylicense.custhelp.com/app/ask?fbclid=IwAR3GZP0tKNQaPt2o9yVDLzbUjvmVap05T2QUrvzj0UaiuVMoBCptiWsJ4oU). Complainants also have the option to give their name and other personal information in case the State needs to follow-up about additional information. Section 245.20 of the New York Criminal Procedure Law states specifically that the prosecutor must give the defense “the names and adequate contact information for all persons…whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense…” Based solely on the language of the statute, it seems likely that a complaint filed by a named complainant would be considered information that is “relevant” to the violation a defendant is charged with. Therefore, it is possible that the name and contact information of a complainant may be given to the defense.

Are employees/alcohol beverage control officers of businesses licensed by the NYS Liquor Authority, subject to personal liability (criminal or civil) if violations are issued to the business for violations of Governor Cuomo’s Executive Orders (i.e. catering hall has more than 50 people at one event, patrons at a restaurant are observed drinking at a bar with no food served).

It is unclear whether employees of an establishment licensed by the NYS Liquor Authority can be subject to personal liability, criminal or civil, for a violation of Governor Cuomo’s Executive Orders. However, after researching, it seems unlikely. New York uses a three-tier system in regulating the distribution of alcohol by separating those who sell alcohol into three groups: manufacturers, wholesalers, and retailers. In the State Liquor Authority Handbook for Retail Licensees, a provision relating to the obligations of a licensee states that the licensee is “responsible for the activities of employees and patrons in all parts of the licensed premises (even if [they] are not always physically present) to ensure that the business is operating in accordance with the [Alcohol Beverage Control Law].” Governor Cuomo’s Executive Order requiring the sale of alcohol to be accompanied by food was made as a modification to the Alcoholic Beverage Control Law. It seems that, in terms of violations of the ABC Law, licensees will be liable in the form of a fine or possible suspension or revocation of the establishment’s liquor license.

Further, it seems as though the State Liquor Authority Board is taking action against catering halls, bars, restaurant and other related establishments, as opposed to individuals, for violations of social distancing, failures to wear masks and serving alcohol without food. On October 23, Governor Cuomo announced the liquor license suspensions of 21 bars, totaling 238 COVID-related liquor license suspensions in New York.

However, it is possible for such liability to occur pursuant to New York Penal Law and New York Health Law. Section 240.45 of the New York Penal Law states that a person is guilty of second degree criminal nuisance when “by conduct either unlawful in itself or unreasonable under all the circumstances, he knowingly or recklessly creates or maintains a condition which endangers the safety or health of a considerable number of persons.” Section 12-B of the NY Health Law makes it a misdemeanor for a person to willfully violate or refuse to comply with a law or regulation prescribed by any local board of health or local health officer. These two laws likely cover the conduct demonstrated by noncompliance of Cuomo’s Executive Orders. Although I have not come across such liability in my research, it is possible for someone to be held liable under these statutes.

A member of my household is considered high risk for COVID-19. What accommodations to my own work schedule must my employer extend so that I do not risk exposing my household?

A household member who is considered high risk for COVID-19 does not trigger the protections provided by the Americans with Disabilities Act. The ADA does not require employers to make reasonable accommodations unless it is the employee that is disabled.[1]

What are my responsibilities as a small business owner if an employee tests positive for COVID-19?

According to Centers for Disease Control and Prevention guidelines, if an employee is infected with COVID-19, the employee must quarantine for fourteen days and may only return to work after the quarantine period. The infected employee’s work area should be isolated immediately then disinfected. Contact tracing should be performed to ascertain whether other employees may have been infected. The contact tracing should track other employees who had contact with the infected employee in the 48 hours prior to the positive test result or onset of symptoms.

Employees who had contact with the infected employee should quarantine immediately and take a COVID-19 test. If the employee tests negative and remains asymptomatic for twenty-four hours, the employee may return to work. Employees who had close contact with the infected employee should quarantine for fourteen days. The New York State Department of Health defines close contact as being within six feet of an infected person for fifteen minutes or more during the 48 hours prior to illness onset. If the exposed employee is essential and critical to the operation or safety of the workplace, and the employee tests negative for COVID-19, the employee may return to work after seven days of quarantine. A supervisor or human resources representative must deem and document that employee as essential.

An employee who tests positive for COVID-19 may be eligible for paid sick leave under federal law. The Emergency Paid Sick Leave Act (“EPSLA”) requires employers to provide up to 80 hours of paid sick leave for full-time employees who are experiencing COVID-19 symptoms, who are subject to a quarantine order, or who have been advised by a doctor to self-quarantine.[2] The law applies to all businesses, unless the business has less than fifty employees and providing leave would seriously jeopardize the business.[3]

An employee who tests positive may also be eligible for further unpaid leave under federal law. Under the Family and Medical Leave Act (“FMLA”), a covered employee who has a serious health condition is eligible for unpaid leave for up to 12 weeks.[4] A covered employee is one who has worked for the employer for at least one year.[5]

New York State Labor Law, as recently amended by the State Legislature, requires all businesses to provide leave for sick employees.[6] For employers with less than five employees, unpaid leave is required; for all others, paid leave is required. The minimum accrual rate of paid sick leave under state law is one hour of paid sick leave for every thirty hours worked.[7] The minimum amount of total accruable paid sick leave depends on how many employees the business has. For those businesses “with between five and ninety-nine employees in any calendar year, each employee shall be provided with up to forty hours of paid sick leave in each calendar year.”[8] For businesses with one hundred employees or greater, “each employee shall be provided with up to fifty-six hours of paid sick leave each calendar year.”[9]

Employees who test positive for COVID-19 may constitute a “direct threat” under the Americans with Disabilities Act and should not be allowed in the workplace. “[A] significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”[10]

Businesses should follow Centers for Disease Control and Prevention guidance on disinfecting the workplace where appropriate.[11]

What are my responsibilities as a small business owner to protect employees from COVID-19?

Small businesses should generally follow the guidelines provided the Centers for Disease Control and Prevention, the U.S. Department of Labor, and any additional guidance from state and local agencies. The U.S. Department of Labor, Occupational Safety and Health Administration (“OSHA”), has issued non-binding standards on workplace safety with respect COVID-19. The applicable standards depend on what type of risk the workplace presents with respect to contracting COVID-19.[12] Generally, businesses should develop policies to identify and immediately isolate sick employees, adapt workplaces to limit the spread of the virus, including social distancing, physical barriers between employees, and limitation of public access to the premises, and provide appropriate personal protective equipment commensurate with the workplace risk.[13] In New York State, employees are required by law to wear face coverings when in contact with non-employees.[14] Additionally, business owners must develop a COVID-19 Health and Safety Plan according to guidance provided by the state.[15] Employers should  screen employees for potential infection on a daily basis with temperate checks and COVID-19 risk questionnaires.

I am high risk for COVID-19. What accommodations must my employer provide to me?

Being high risk for COVID-19 may qualify you to request reasonable accommodations from your employer. Employees who are at high risk for COVID-19 have been found to qualify as disabled under the Americans with Disabilities Act (“ADA”).[16] Accordingly, businesses covered by the ADA, which generally includes businesses with fifteen or more employees, must provide such employees with reasonable accommodations, unless doing so would cause undue hardship.[17]  Reasonable accommodations generally include both adaptations to the work environment such as instituting policies of social distancing, installing plexiglass, and otherwise following federal and state recommendations; as well as “job restructuring, part-time or modified work schedules, reassignment to a vacant position,” and “acquisition or modification of equipment or devices . . . .”[18] Reasonable accommodations can also include allowing the employee to telework, if telework suits the essential functions of the position.[19]

What whistleblower protections are available for employees working in workplaces in which the employer is not implementing COVID19 safety precautions?

Employees who feel that they are not being adequately protected by their employer’s COVID-19 safety precautions may file a complaint with OSHA at https://www.osha.gov/workers/file-complaint.[20] Employees may also file a complaint with the New York Department of Labor at https://labor.ny.gov/workerprotection/laborstandards/coronavirus-complaints.shtm

[1]
[1] See Erdman v. Nationwide Ins. Co., 582 F.3d 500, 510 (3d Cir. 2009) (“[T]he association provision does not obligate employers to accommodate the schedule of an employee with a disabled relative. Although refusal to ‘mak[e] reasonable accommodations’ may constitute illegal discrimination against a disabled employee, 42 U.S.C. § 12112(b)(5), the plain language of the ADA indicates that the accommodation requirement does not extend to relatives of the disabled.”).

[2]
[2] Families First Coronavirus Response Act of 2020, Pub. L. No. 116-127, § 5102, 134 Stat. 178 (2020). Part-time employees are eligible for paid sick leave hours totaling the average amount of hours the employee worked over the two weeks preceding the request.

[3]
[3] See Kofler v. Sayde Steeves Cleaning Service, Inc., No. 8:20-cv-1460-T-33AEP, 2020 WL 5016902, *1, *3, *4 (M.D. Fla. August 25, 2020) (“An Employer, including a religious or nonprofit organization, with fewer than 50 Employees (small business) is exempt from providing Paid Sick Leave under the EPSLA and Expanded Family and Medical Leave under the EFMLEA when the imposition of such requirements would jeopardize the viability of the business as a going concern.”) (quoting 29 C.F.R. § 826.40(b)(1) (2020)).

[4]
[4] See 29 U.S.C. §§ 2612(a)(1)(D) (2020) (“[E]ligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following . . . (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.”).

[5]
[5] See id. § 2611(2)(A). The FMLA applies to employers with fifty or more employees. See id. § 2611(4)(A).

[6]
[6] See N.Y. Labor Law § 196-b(1) (McKinney 2020); 2020 N.Y. Sess. Laws ch. 56, 41–44 (McKinney).

[7]
[7] See N.Y. Labor Law § 196-b(3).

[8]
[8] See id. § 196-b(1)(b).

[9]
[9] See id. § 196-b(1)(c).

[10]
[10] See Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, U.S. Equal Employment Opportunity Commission (March 21, 2020), https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act.

[11]
[11] See Cleaning and Disinfecting Your Facility, Centers for Disease Control and Prevention (July 28, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html.

[12]
[12] See Guidance on Preparing Workplaces for COVID-19, U.S. Dep’t of Labor, Occupational Safety and Health Administration, https://www.osha.gov/Publications/OSHA3990.pdf (last accessed November 16, 2020).

[13]
[13] See id. New York State guidelines also call for frequent cleaning and disinfection of the workplace and increased availability of hand washing and sanitization stations. See Complaints Related to COVID-19 Regulations, N.Y. Dep’t of Labor, https://labor.ny.gov/workerprotection/laborstandards/coronavirus-complaints.shtm (last accessed November 16, 2020).

[14]
[14] See N.Y. Exec. Order No. 202.16 (April 12, 2020) (“For all essential businesses or entities, any employees who are present in the workplace shall be provided and shall wear face coverings when in direct contact with customers or
members of the public. Businesses must provide, at their expense, such face coverings for their employees.”).

[15]
[15] See Frequently Asked Questions (FAQ) on New York Forward and Business Reopening, Empire State Dev. (July 25, 2020), https://esd.ny.gov/nyforward-faq.

[16]
[16] See Silver v. City of Alexandria, No. 1:20-CV-00698, — F. Supp .3d —-, 2020 WL 3639696, *1, *4 (W.D. La. July 6, 2020) (cardiovascular issues necessitated telework as reasonable accommodation for 98 year-old City Council Member); Peeples v. Clinical Support Options, Inc., No. 3:20-cv-30144-KAR, — F. Supp. 3d —-, 2020 WL 5542719, *1, *1, *3 (D. Mass. September 16, 2020) (moderate asthma qualified as disability under COVID-19 and telework was a reasonable accommodation where essential functions of job could be performed remotely).

[17]
[17] See 42 U.S.C. §§ 12111, 12112 (2020).

[18]
[18] See id. § 12111(9).

[19]
[19] See supra note 16; Palmer v. Amazon.com, Inc., No. 20-cv-2468 (BMC), — F.Supp.3d —-, 2020 WL 6388599, *1, *6 (E.D.N.Y. November 2, 2020) (holding court would not substitute its judgment for OSHA’s with regard to COVID-19 workplace safety).

[20]
[20] See In re Am. Fed’n of Labor and Congress of Indus. Org., No. 20-1158, 2020 WL 3125324, *1 (D.C. Cir. June 11, 2020) (upholding OSHA’s decision to prosecute COVID-19 related safety hazards under existing standards); Palmer, 2020 WL 6388599 at *6 (“OSHA continues to use its enforcement mechanisms during the pandemic. According to its website, OSHA has received nearly 10,000 COVID-19-related complaints at the federal level, . . .  opened over 1,000 federal inspections, and issued around 150 citations.”).