Please see an updated version of our FAQs as of July 25, 2020.
We have compiled FAQs concerning New York’s COVID-19-related health and safety protocols for businesses across the state. These protocols apply to all New York businesses – regardless of size, location, whether the business has physically reopened, or whether it was deemed “essential”
Since early May, New York State has published – across multiple platforms – a slew of materials related to business reopenings and workplace-related health and safety. We developed a FAQs based on some of the more common New York-specific questions that clients have posed to us since May. The FAQs touch on a host of
As we previously detailed here and here, New York State Governor Andrew Cuomo recently outlined guidelines for when Empire State businesses can reopen and return to “in-person” operations. Under the Governor’s plan, reopenings are being determined, first, on a region-by-region basis and then, once a region is eligible to reopen, on a phased industry-by-industry basis.
Since the Governor made his initial reopening announcement, the State has published a slew of materials to assist businesses as they reopen. To further assist businesses, we have created a central location – i.e., this post – from which these materials can be accessed. Following, therefore, are links to, and details regarding, these important materials:
Continue Reading Update on everything you need to know about New York’s business reopening plan [Updated as of July 1]
The Empire State recently announced strict measures to protect against the spread of COVID-19 by individuals returning to New York from states experiencing a spike in cases. Specifically, on June 24 Governor Cuomo signed Executive Order 205 (EO 205), which requires individuals returning to New York from a state that meets either of the following conditions to quarantine for a period of 14 days:
This new order comes in the wake of a recent upsurge in cases around the country and currently covers travelers returning from Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Utah, and Texas. However, it is expected that this list will continue to grow, as more states see an uptick of new cases. Any violation of a required quarantine may be deemed a violation of EO 205, resulting in a civil penalty of up to $10,000.
Continue Reading New York state further restricts eligibility for its paid quarantine leave
As New York State businesses begin to reopen – a process we have detailed here – Empire State employers will increasingly be required to make decisions with respect to returning employees to the workplace who were suspected or confirmed to be infected with, or exposed to, COVID-19. To assist the business community, the New York State Department of Health (DOH) recently published interim guidance for employers in this regard (the Interim Guidance). Critically, the Interim Guidance applies to all New York employers and employees (with the exception of health care or nursing home professionals) – regardless of their industry or phase of reopening, or whether they are or were considered an “essential” business. Below is a summary of the Interim Guidance.
Continue Reading Moving forward: New York State Department of Health issues new protocols for returning employees to the workplace following COVID-19 infection or exposure
As we previously posted, the Centers for Disease Control and Prevention (CDC) CDC recently issued guidance on reopening the workplace. In its latest update on June 11, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Frequently Asked Questions (the Guidance) to provide further guidance on returning employees to the workplace. Notably, the Guidance covers (1) the return of high-risk workers to the workplace, (2) how to properly handle COVID-19-related accommodations requests, and (3) how to appropriately respond to pandemic-related harassment. As we discussed in our last post, employers should be wary of toeing the line on the issues highlighted below, as they may become prevalent in the wave of litigation expected to arise in the wake of the pandemic.
Employers may not involuntarily exclude older or pregnant workers from the workplace
In its updated Guidance, the EEOC cautions that the Age Discrimination in Employment Act (ADEA) – which prohibits discrimination in the workplace against individuals aged 40 and older – does not permit an employer to involuntarily exclude an employee from the workplace based solely on their age, “even if the employer acted for benevolent reasons such as protecting the employee due to a higher risk of severe illness from COVID-19.” The Guidance specifically pertains to employees aged 65 years and older, who are considered by the CDC to be at a higher risk of serious illness due to COVID-19. Moreover, the EEOC has stated that employers may still provide flexible working arrangements for workers aged 65 and older, and that doing so will not be viewed as treating younger workers (ages 40 to 64) less favorably.
Additionally, under Title VII of the Civil Rights Act (Title VII), employers are prohibited from involuntarily excluding from the workplace, furloughing, or placing on leave, pregnant employees, even if the intent behind the decision is to protect the employee’s health and safety.Continue Reading EEOC provides updated guidance related to excluding high-risk workers, required accommodations, and pandemic-based harassment
As shutdown orders begin to subside and states across the nation take steps toward reopening, employers should prepare for a potential spike in employment claims arising out of new legislation, the application of existing laws to novel workplace circumstances and a sudden downturn in the economy. Below is a summary of some of the claims that employers can expect to receive in the coming months.
Claims stemming from layoffs, furloughs and recalls to work
Employers may see claims brought by individuals who allege that they were not given proper notice of, and/or were discriminated against, in an employer’s selection of employees to terminate, furlough or recall following the onset of the COVID-19 pandemic.
Federal Worker Adjustment and Retraining Notification (WARN) and parallel state “mini-WARN” acts generally require covered employers to provide advance notice (usually 60 days) of a mass layoff or a significant reduction in hours. As a result of the shutdown orders across the country, many non-essential businesses were abruptly forced to significantly slow or completely halt operations. Consequently, these businesses were forced to furlough or lay off their workforces with little or no notice. Employers that were unable to give requisite WARN notice (or gave no notice at all) may see an influx of claims seeking potential damages for back pay and fringe benefits for each day of violation, as well as for civil penalties. Unfortunately, the U.S. Department of Labor has yet to provide clear guidance as to whether the unforeseeable business circumstances or natural disaster exceptions will apply to businesses impacted by these shut-down orders.
Continue Reading Employers Beware: Post-pandemic litigation traps
The U.S. Centers for Disease Control and Prevention (CDC) recently released new guidance (the Guidance) and a flowchart (the Flowchart) detailing how states can safely reopen businesses and schools in the wake of the COVID-19 pandemic. The 60-page guidance document covers a wide range of topics, including surveilling, contact tracing, and controlling COVID-19 cases.
The Guidance provides generalized recommendations, while simultaneously cautioning employers to tailor the Guidance based on the state and industry within which the employer operates. For each set of recommendations, the CDC creates a three-step program to safely scale up operations, with Step One requiring the most stringent measures of mitigation and Step Three requiring the least. The Guidance also provides more specific recommendations that highlight additional considerations for reopening mass transit, childcare programs, day camps, restaurants, and bars, as well as businesses that employ workers at high risk for severe illness due to COVID-19.
Continue Reading CDC issues new guidance on reopening the workplace
What’s old is new again in New York. In non-COVID-19-related news, earlier this month, New York state passed its fiscal year 2020–2021 budget. As part of the budget, New York’s voting leave law, which was amended last year, will revert back to the pre-2019 version of the statute.
By way of background, in April 2019, New York increased paid voting time for employees from two to three hours (regardless of an employee’s work schedule). Legislators also eliminated the then-existing requirement that requests for voting time leave be made no more than 10 working days prior to the election at issue. The recent amendments, however, do away with many of the key 2019 changes.
Continue Reading What’s old is new again – New York to revert back to pre-2019 voting leave law
In the wake of the COVID-19 pandemic, yesterday, New York State Governor Andrew Cuomo signed into law a bill providing job protection and benefits to certain employees quarantined due to COVID-19.
Principally, the legislation provides certain job protections to employees subject to a mandatory or precautionary order of quarantine or isolation issued by the state, the Department of Health, a local board of health, or any government entity authorized to issue a quarantine order. The protections vary based on employer size, as follows:
Continue Reading Big Apple employers: Governor Cuomo announces job protections and paid sick leave for New Yorkers quarantined due to COVID-19