Attorneys answer employee-related questions concerning the coronavirus

Coronavirus

Dan Telvock is an award-winning investigative producer and reporter who has been part of the News 4 team since 2018. See more of his work here.

News 4 asked two attorneys with experience in labor and employment law to answer questions sent to us by employees across Western New York about the coronavirus.

Rafael O. Gomez, a trial attorney at Gomez & Becker LLP, is a graduate of Franklin and Marshall College for his bachelor’s degree and received his law degree from University at Buffalo School of Law.

Christian Archer Pierrot also received her law degree from University at Buffalo School of Law, where she earned special recognition for her appellate advocacy skills. She obtained her undergraduate degree at UB, too.

Here are their unedited questions posed by viewers and readers over the past two weeks:

Question: My employer has cut my hours and forced unpaid leave on some of us, and others were laid off. Is there anything we can do other than filing for unemployment?

Gomez: New York is an employment at-will state, and absent a contractual obligation, for example a union contract, the employer has the right to cut hours and force unpaid leave.

This pandemic does not relieve the employer from any obligations under New York and Federal law to make non-discriminatory decisions in determining whose hours are reduced or who will be laid off. There are protections under the New York Human Rights Law, Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act, and other anti-discrimination laws. If the manner in which an employer makes decisions of who has hours reduced, or who is laid off is discriminatory, then there could be liability.

There are also requirements under both the New York and Federal Worker Adjustment Retraining and Notification (WARN) Act for employers in the event of a plant closing or mass layoff. New York requires 90-days notice and the Federal law requires 60-days notice.

However, each WARN Act contains exceptions for “sudden and unexpected circumstances beyond an employer’s control”, “unforeseeable business circumstances” and “natural disasters.”

As long as employers give employees notice as soon as practicable, then a mass layoff or plant closure that is directly caused by the COVID-19 pandemic should not trigger WARN Act liability.

If your hours are reduced or you are laid off by your employer, then you will be entitled to unemployment benefits for 26 weeks if the decision was made through no fault of their own.

The amount of benefits employees receive depends on their average weekly rate, with a minimum of $104 per week and a maximum of $504 per week. In order to qualify for weekly benefits, employees must continue to look for work.  Employees may be entitled to partial unemployment insurance benefits if they work fewer than four days a week and do not earn over the maximum rate of $504 per week. Depending on how many days per week you continue to work, you may receive up to three-quarters of your average weekly rate in partial benefits. Employees who receive partial benefits are entitled to receive benefits for a longer period of time than employees who receive full unemployment insurance benefits.

You may be entitled to unemployment insurance even if you are classified as an independent contractor. If an employer has sufficient control over your schedule, pay, and day-to-day work conditions, you may be misclassified as an independent contractor.

The Federal CARES Act will provide enhanced Unemployment Insurance (UI) benefits and Pandemic Unemployment Assistance (PUA) for New Yorkers. Beginning April 5, 2020, an employee may qualify to receive an additional $600 per week. Employees may also receive an additional 13 weeks of UI benefits if still unemployed after 26 weeks. Employees do not need to do anything for these extra benefits, they will be updated automatically. Employees who have lost their jobs should apply for unemployment insurance with the New York Department of Labor immediately.

Question: Is there any requirement that employers inform employees when or if a colleague tested positive for covid19? It seems like a real safety issue if we are not informed.

Gomez: Employers are faced with circumstances that most never imagined would be an issue. There are a number of different issues that come into play, such as the obligations of an employer, and the privacy rights of an employee when considering a positive Covid-19 diagnosis.

In these circumstances, it’s very unlikely that an enforcement agency would find employer liability under either New York or Federal law for not doing enough to prevent infection.

Under the Americans with Disabilities Act (“ADA”) an employer must keep all medical information about employees confidential, and an employee who has symptoms of, or a diagnosis of, COVID-19, is medical information. The fact this is medical information does not prevent an employer from taking actions consistent with guidance from the CDC and other public health authorities. Such as, providing notice of the positive test to the Department of Health or other entities required by law.

In New York, the disclosure of a positive Covid-19 test is being handled primarily on a local level through each county’s Department of Health.

There is no requirement that an employer advise employees of any positive Covid-19 findings by an employee or person in the building. What is typically happening is that the applicable County DOH performs contact tracing and reaches out to individuals who have been in contact with someone who has tested positive. If the employees tells the DOH that they worked during the incubation period (2-14 days prior to being symptomatic), the DOH will notify the employer and advise on whether it’s necessary to tell other employees.  

Locally, in Erie County, there is a running presumption that everyone has encountered someone who is positive, and this is where the social distancing and other preventative steps come into play. Contact tracing relies on the affected employee’s memory of the people they were in direct contact with. Therefore, it is possible a co-worker could have a positive test and you will not be informed about it.

In the absence of direction from the local DOH, every company is making its own decision regarding whether to tell its employees about an employee with a positive COVID-19 test result.

Pierrot: I agree that an employer’s sharing of an employee’s medical information would very well constitute a violation of the Americans with Disabilities Act, as well as HIPAA laws. Having said that, however, my understanding is that when an individual tests positive for COVID-19, the local County’s health department issues a mandatory isolation of said person and then undertakes a comprehensive investigation called “contact tracing” to determine the places and individuals exposed in the weeks prior to the infected person’s diagnosis.

My further understanding, according to the NYS Department of Health is that the local health department, itself, will contact each individual person who may have been exposed to the infected person. In those cases, the Department of Health will also issue mandatory orders of quarantine in order to monitor those individuals to see if they develop symptoms of COVID-19.

Thus, while it is not an employer’s place to share the private and protected medical information of its employees, without those employees’ permission to do so, there are some safety measures in place as the Department of Health is supposed to notify anyone who was likely exposed. However, if the infected employee did not have close contact with a particular colleague, that colleague will likely not (and, in my opinion, does not need to) receive any sort of formal notice regarding the infection. 

QUESTION: I work at a place deemed essential but there seem to be a lot of non-essential workers coming to work, such as secretaries, administration etc. Is there anything I can do about this? I’m concerned about the number of people coming to work who could do their work from home.

Gomez: Essential business can continue to operate with all employees who are critical to running the business. It is recommended, but not required, that those employees capable of tele-commuting or working from home be allowed to do so. Each business must consider on a case by case basis which workers are essential to keep the business functioning. All essential businesses MUST implement rules that facilitate social distancing of at least six feet.

If your employer does not comply with Governor Cuomo’s PAUSE order, then you have the right to file a complaint. If you work for a non-essential business, you may not be forced to go to the worksite or otherwise threatened if you do not work at a place other than your home. You can find guidance on essential businesses at https://esd.ny.gov/guidance-executive-order-2026.

Complaints are processed with the NYDOL and can be done online at https://forms.ny.gov/s3/Department-of-Labor-COVID-19-Complaint-Form.

Some of the following reasons can be the basis of a complaint:

• You are being forced to work at a non-essential business

• You know about a business that is non-essential and is operating

• You are being forced to work for an essential business, however: You do not perform an essential function

• Your employer is making you report to a worksite when your job could be performed from home

• Your employer is not following health and safety mandates

• You are particularly frightened because you are over 70 and/or you have an underlying illness.

• Your employer has failed to pay you wages owed for hours worked, earned sick pay or paid time off

• Your employer has threatened or fired you for reasons related to COVID-19

• You qualify for COVID-19 paid sick leave and your employer refuses to pay it

• Your employer is forcing you to work when you are sick

QUESTION: Can my employer be held liable if someone gets sick with coronavirus and come to work and infects me?

Gomez: Under New York law you cannot sue your employer for negligence, and there are limited health and safety claims available, of which this situation with Covid-19 will likely not apply.

Employees that contract COVID-19 at work MAY be entitled to workers’ compensation insurance during any treatment or recovery. It is unclear how a workplace exposure will be treated under New York’s Workers’ Compensation law, but there is an argument that it should be covered. There are specific requirements to make a claim for benefits, such as written notice to the employer of the exposure within thirty (30) days of discovering it occurred.

Employees who have tested positive, and believe it occurred at work should contact a Workers’ Compensation attorney as soon as possible to review the situation and claim.

QUESTION: I was diagnosed with Covid19. Do I have to tell my employer, or can I just use my sick time and ride this out?

Gomez: You do not have to tell your employer about a positive test,and are fully within your rights to use your sick time until you are well.

That said, there might be reasons you would want to tell your employer voluntarily about a positive diagnosis. There are various protections available under both New York and Federal law which you might want to use in addition to using your regular benefit time. For example, certain employers are required to provide additional sick time benefits for people diagnosed with COVID-19, who have symptoms of, or quarantined for COVID-19, people caring for those with COVID-19, or people caring for children whose schools have closed due to COVID-19.

New York’s Paid Family Leave law has been amended to include the COVID-19 situation. The new law guarantees job-protected paid leave to workers who are subject to a mandatory or precautionary order of quarantine or isolation for COVID-19, issued by the state of New York, the Department of Health, local board of health, or any government entity duly authorized to issue such order, or whose minor dependent child is under such an order.

Most employees will get financial compensation through a combination of benefits. These benefits are not available to employees who are well enough to work through remote access or through other means.

The amount of paid sick leave available to for symptomatic, quarantined employees depends on your employer’s size and annual income. The paid sick leave benefits available under New York law are as follows:

If you work for a business with 10 or fewer employees and it had a net income less than $1 million last year you are entitled to:

• No additional sick days, but guaranteed job protection for the duration of the quarantine order.

• Paid Family Leave (PFL) and Disability Benefits (DB) through your employer’s existing policy. You will receive your salary up to a maximum of $2,884.62 per week for the duration of your mandatory or precautionary quarantine.

If you work for a business with 10 or fewer employees and it had a net income greater than $1 million last year you are entitled to:

• At least 5 days of paid sick leave and guaranteed job protection for the duration of the quarantine order.

• After these paid sick days, you are eligible for PFL and DB through your employer’s existing policy. You will receive your salary up to a maximum of $2,884.62 per week for the duration of your mandatory or precautionary quarantine.

If you work for a business with 11-99 employees you are entitled to:

• At least 5 days of paid sick leave and guaranteed job protection for the duration of the quarantine order.

• After these paid sick days, you are eligible for PFL and DB through your employer’s existing policy. You will receive your salary up to a maximum of $2,884.62 per week for the duration of your mandatory or precautionary quarantine.

If you work for a business with 100 or more employees you are entitled to:

• Guaranteed job protection for the duration of the quarantine order.

• At least 14 days of paid sick leave.

If you work for a public employer (no matter the number employees) you are entitled to:

• At least 14 days of paid sick leave.

If you are quarantined but are able to work from home, you do not qualify for these benefits.

If your business is closed due to COVID-19, employees may immediately apply for Unemployment Insurance.

The Families First Coronavirus Response Act (FFCRA or Act) requires certain employers to provide their employees with paid sick leave or expanded Family and Medical Leave for specified reasons related to COVID-19. The US Department of Labor’s Wage and Hour Division (WHD) administers and enforces the new law’s paid leave requirements. These provisions will apply from the effective date through December 31, 2020.

Covered Employers: The paid sick leave and expanded Family and Medical Leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees. Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision.

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

Generally, the Act requires that covered employers must provide to all employees:

Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or

Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

A covered employer must provide to employees that it has employed for at least 30 days:

Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

Qualifying Reasons for Leave:

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  • has been advised by a health care provider to self-quarantine related to COVID-19;
  •  is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  •  is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  •  is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  • is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.

Duration of Leave:

For reasons (1)-(4) and (6): A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

For reason (5): A full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Calculation of Pay:

For leave reasons (1), (2), or (3): employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

For leave reasons (4) or (6): employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

For leave reason (5): employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period—two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave).

Tax Credits: Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. For more information, please see the Department of the Treasury’s website.

Employer Notice: Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements.

Prohibitions: Employers may not discharge, discipline, or otherwise discriminate against any employee who takes paid sick leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA.

Pierrot: I agree with Rafael that there are myriad reasons to disclose the diagnosis to the employer, including being eligible for various COVID-19 wage replacement benefits. However, the other real consideration is that the Department of Health will issue the infected employee a mandatory order of isolation before undertaking its contact tracing process during which the employer will likely discover the diagnosis, anyway.

My opinion is that it is just best practice to be forthright and honest in this situation as there are plenty of laws to protect an infected employee financially and from retaliation or discrimination. 

See https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/Interim_Containment_Guidance_COVID-19.pdf

[Status for Required Mandatory Quarantine – Person has been in close contact (6 ft.) with someone who is positive, but is not displaying symptoms for COVID-19; or person has traveled to China, Iran, Japan, South Korea or Italy and is displaying symptoms of COVID019; Status for Required Mandatory Isolation – Person has tested positive for COVID-19, whether or not displaying symptoms for COVID-19.]

The CDC has also issued “Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19),” which can be found here: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

OSHA has issued “Guidance on Preparing Workplaces for COVID-19,” which can be found here: https://www.osha.gov/Publications/OSHA3990.pdf

Question: My employer was deemed essential, but they are not practicing social distancing or making any effort to clean the facility each shift or each day. I feel unsafe working here. What can I do?

My job requires that I have quite a bit of close contact with customers. What protection do I have if I relay to my bosses that I do not feel safe doing this work during the outbreak?

Gomez: Workplace safety is governed by the New York State Department of Labor (“NYDOL”) and the Occupational Safety & Health Administration (“OSHA”). There is no NYDOL or OSHA standard or regulation which specifically covers COVID-19.

See answer above regarding NYDOL reporting of unsafe conditions, or violations by employers and the mechanism in place to file a complaint.

There are also some OSHA requirements which may apply to preventing occupational exposure to COVID-19. Among the most relevant are:

OSHA’s Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I), which require using gloves, eye and face protection, and respiratory protection.

When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard (29 CFR 1910.134).

OSHA has issued temporary guidance related to enforcement of respirator annual fit-testing requirements for healthcare.

The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1), which requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

OSHA’s Bloodborne Pathogens standard (29 CFR 1910.1030) applies to occupational exposure to human blood and other potentially infectious materials that typically do not include respiratory secretions that may transmit COVID-19. However, the provisions of the standard offer a framework that may help control some sources of the virus, including exposures to body fluids (e.g., respiratory secretions) not covered by the standard.

Section 11(c) of the Occupational Safety and Health Act of 1970, 29 USC 660(c), prohibits employers from retaliating against workers for raising concerns about safety and health conditions. Additionally, OSHA’s Whistleblower Protection Program enforces the provisions of more than 20 industry specific federal laws protecting employees from retaliation for raising or reporting concerns about hazards or violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, securities, and tax laws.

QUESTION: Is it legal that my employer checks my temperature before I start my shift? Explain.

Gomez: Under Federal law, and specifically the ADA, an employer can check the temperature of an employee before a work shift during this Covid-19 pandemic. An employer can bar an employee from working if the employee refuses to have their temperature taken. An employer can also bar an employee from physical presence in the workplace if the employee refuses to answer questions about whether the employee has symptoms of, been diagnosed or tested for COVID-19.

The United States Equal Employment Opportunity Commission has issued guidelines on Covid-19, and specifically the taking of temperatures of employees, and even applicants. The EEOC guidance provided that:

• An employer may take an applicant’s temperature as part of a post-offer, pre-employment medical examination.

• An employer may screen applicants for symptoms of COVID-19 after making a conditional job offer.

• An employer may delay the start date of an applicant who has COVID-19 or symptoms associated with it.

• An employer may withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it. Based on current CDC guidance, the individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer, the EEOC explained.

QUESTION: Is there any way to see what the guidelines are for essential business that have a patient or worker with a confirmed case. Such as is the whole building supposed to shut down. Or what are the rules

Gomez: The Department of Health in your county is tasked with the investigation into any outbreaks and the operation of a business with positive cases. This is going to be evaluated on a case by case basis, and essential businesses are tasked with complying with all applicable New York and Federal laws. This has been a fluid situation with changes coming at a rapid pace, and it is important to review the websites for your local, State and Federal government to learn what is happening.

ESSENTIAL BUSINESSES OR ENTITIES, including any for profit or non-profit, regardless of the nature of the service, the function they perform, or its corporate or entity structure, are not subject to the in-person restriction. Essential Businesses must continue to comply with the guidance and directives for maintaining a clean and safe work environment issued by the Department of Health and every business, even if essential, is strongly urged to maintain social distance to the extent possible.

This guidance is issued by the New York State Department of Economic Development d/b/a Empire State Development and applies to each business location individually and is intended to assist businesses in determining whether they are an essential business.

With respect to business or entities that operate or provide both essential and non-essential services, supplies or support, only those lines and/or business operations that are necessary to support the essential services, supplies, or support are exempt from the workforce reduction restrictions.

For purposes of Executive Order 202.6, “Essential Business,”

https://esd.ny.gov/guidance-executive-order-2026

Copyright 2020 Nexstar Broadcasting, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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