Tag Archives: COVID-19

Returning To Work During COVID-19

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

It’s scary, or a relief, or a mixture of the two.  The workplace now has cleaning requirements, PPE requirements, screening requirements, and social distancing requirements.  You may have to take a test before you go in.  You may be on staggered shifts with your co-workers, working at the office on some days and at home on other days. There are rules about who can be in different parts of the workplace and under what circumstances.  There may be one-way hallways and closed breakrooms. The rules are changing every day, and it’s hard to know what you’re supposed to do and when.  Here are some frequently asked questions facing employees these days:

  • Can my employer require me to take a COVID-19 test before allowing me to return to work?
    • It depends on the type of test. 
      • Antibody tests: On June 18, 2020 the EEOC updated its guidance in response to new CDC guidance stating that antibody testing should not be used to make decisions about whether an employee should return to work. If an employer is insisting that you take an antibody test in order to determine whether you should be allowed to return to work, call an attorney.
      • Viral tests:  However, a viral test is still an acceptable return to work requirement, as it is job-related and consistent with business necessity.
      • Temperature checks:  An employer can require employees to have their temperature taken prior to entering a workplace.  However, if your employer insists on a particularly invasive temperature-taking method, call an attorney immediately. 
      • Written tests:  Many New York employers are required to have their employees certify that they are symptom free, COVID-free, and have not been in contact with a COVID case in the past 14 days.  This may be a paper you sign when you arrive at the workplace, or the employer may require you to fill out an online form before you even start your commute.  As long as these certifications only ask about your COVID-19 symptoms, whether you are COVID-19 positive, and whether you’ve been exposed, those certifications are allowed. If the employer is asking you other medical questions, call an attorney.
      • Watch this space.  The rules are changing almost weekly.  What was correct last week may not be correct this week.  When in doubt, call an attorney.
    • What’s the difference between an antibody test and a viral test?
      • Antibody tests involve blood work.  They show whether someone has previously had the virus. The EEOC considers an antibody test a “medical examination” under the ADA.  In light of the CDC’s guidance that state that antibody testing can produce false positives, the EEOC has deemed antibody tests as impermissible medical examinations or inquiries for current employees. 
      • Viral tests check the mucus to detect if a person is currently infected and contagious.  Viral tests can be achieved with swabs and are relatively non-invasive.
    • What about a new employer?
      • If you have a conditional offer of employment, the employer is allowed to send you for a medical evaluation to make sure you are fit to perform the essential functions of your job, as long as the employer requires all new employees to undergo testing.  Any medical exams are permitted between a conditional offer of employment and the employee’s start date. 
      • An employer may delay the start date or withdraw the job offer if there is medical evidence that you are currently positive for COVID-19.
  • Can my employer make me wear a face mask?
    • 99% of the time, yes.
    • If you have a disability that precludes you from wearing a face mask, you will need to request a reasonable accommodation, which involves your doctor providing medical documentation of your condition.
    • Be aware that COVID-19 is considered a “direct threat,” so if you have medical documentation showing that you cannot wear a face mask, and your job cannot be done remotely, the likely outcome is termination – not because of your disability, but because the employer can’t risk having you in the workplace without PPE.
  • What if a person in my home is at high risk of serious health problems due to COVID-19?
    • The employer is not required to accommodate you due to the health conditions of a person in your household.
    • If you cannot telework due to needing to care for a high-risk family member, you may be eligible for FMLA, EFMLEA, or New York Paid Family Leave.  Note that these protections require medical documentation showing that the person needs you to provide care – so if the concern is simply that you don’t want to expose a person who is capable of caring for themselves, you might not have much luck getting time off under these statutes.
  • What if I am recovering from COVID-19?
    • COVID-19 is considered a “serious health condition” for purposes of workplace law.  As such, you may have accommodation and leave rights under the ADA, FMLA, EFMLEA, New York State Human Rights Law, and/or New York State Paid Leave [not to be confused with NYS Paid Family Leave, which gives you time off to care for other people]. 
    • If you are recovering from COVID-19 and believe you are ready to return to work, or if you need some more time before you’re ready to return to work, your employer may need to get medical documentation from your health care provider.  The employer is allowed to get information that will enable it to determine whether you can perform the essential functions of your job, whether more leave is warranted, and what, if any, accommodations it might be able to offer you. 
    • If you are concerned about returning to the workplace due to an underlying condition that puts you especially at risk, then it’s appropriate to ask for a reasonable accommodation.  If your work can be done remotely, you may be able to get an accommodation that allows you to do telework.
    • If your job cannot be done remotely, it’s likely the only accommodation an employer can offer is more leave.  Do not ask for indefinite leave – an employer faced with a request for indefinite leave has an easy out for terminating your employment.  Make sure your leave request has a definite end date.  It is more difficult for an employer to deny a request for additional leave as an accommodation when there is a definite end date to the leave.

Reopening is a hopeful development for people who want to “get back to normal.” But, as continually repeated by the media, social media, experts, and politicians, there is no “normal” any more.  You may find yourself returning to a very different workplace than the one you left. The majority of employers are trying to create workplace rules that keep workers safe – but you don’t have to let yourself be exploited in the name of workplace safety.  The above guidance may help you navigate some common workplace pitfalls. When in doubt, call an attorney. 

Be safe.

COVID-19 In The New York Workplace – Part IX: Working From Home and Social Media

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471–0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

It’s a familiar feeling. You’re on work time. You’ve been at it diligently all morning. You just reached a stopping point and need a break, but you don’t want to step away from the computer. So you hop on to Facebook, and there you see a post that you just have to reply to.

Regardless of whether you’re working from home or in the office (remember the office?) your social media activity is being monitored by your employer. Some employers install software on your work accounts so they can see when you stop working. Others just watch your Twitter account. You know all those coworkers you friended and followed?  They’re going to tell the boss what you said. If they don’t, their friends will tell.

So what gets you into trouble?

First, if your employer has a social media policy, follow it. For example, if the employer says “No Social Media During Work Hours,” that means no social media during work hours. Violating the social media policy can and will get you fired. Other policies allow you to use social media, but require you to refrain from discussing an employer or the employer’s products. Some of these policies are legal, and some are not. The problem is, to find out if a policy is legal, you might have to get fired first and then sue. That’s a mighty expensive way to get information. So unless you are working closely with an attorney (either your own or the Union’s) on the specifics of your case, it’s not a good idea to violate the employer’s social media policies.

Second, don’t publish confidential information. You know those cute pictures of your home office that you posted at the beginning of the shutdown?  Make sure you didn’t accidentally post a picture of your computer screen or confidential documents. Don’t publish pictures, names, or birthdates of patients or long term care facility residents. Don’t publish client info. Don’t publish financials, customer lists, social security numbers, passwords, code, or research results. Don’t publish the employer’s secret recipe for life-changing chocolate chip cookies if the employer is in the business of selling life-changing chocolate chip cookies. If it’s anything that the employer has any arguable interest in protecting, don’t publish it. You’ll get fired, and you might get sued.[1] 

Third, racism and sexism are quick and easy ways to get fired, whether or not they happen on social media. The distinguishing feature of social media is, once you’ve posted it, it’s out there forever. You can delete the post, but any clever 12-year-old can resuscitate it, take a screenshot, and will inevitably share it with the boss. Or the media will get hold of it, and the employer will know the next day. Bottom line: if you want to keep your job, don’t be racist or sexist at all, and that includes social media.

Wait, what about my First Amendment rights?

The First Amendment to the United States Constitution prohibits the government from interfering with your freedom of speech in certain circumstances. It does not prohibit private actors from taking actions against you because of what you said. So if you work for a private or not-for-profit entity, you don’t have first amendment rights in the workplace.

If you work for the government (including a state agency or subdivision), the question gets complicated. Theoretically a public employer can’t retaliate against you for posting about a matter of public concern. But if your post has to do with a matter of personal interest to you as an employee (for instance, because you don’t agree with how you are instructed to perform your job), then the post is not protected, even if it has some connection to a matter of public interest. Moreover, if the post presents a potential conflict of interest or interferes with the public employer’s ability to discharge its official duties, the protection is lost.

The difference between matters of public concern and matters of personal interest has spawned endless litigation, so for practical purposes the only way to know whether what you are posting is protected from a first amendment perspective is to lose your job and then litigate. As above, it’s an awfully expensive way to make a determination.

Isn’t there anything I can talk about online?

Yes. If you are complying with your employer’s social media policies, you’re probably ok posting pictures of your cat, your kids, tasteful funnies, and other non-offensive, non-work related matters. (But please use your common sense and don’t post anything that could endanger you or your loved ones.) 

You can also use social media to speak out about terms and conditions of employment if they affect other employees as well as you. That means that you probably won’t get away with complaining because the boss disciplined you for wearing the wrong polo shirt, but if the boss continually shorts your whole shift on overtime payments, you may be able to get away with commenting about that on social media. Don’t use vulgarity or threats when you’re doing it, or you can lose the protection.

New York State Labor Law protects lawful off-duty conduct, including off-duty political activities, among other legal off-duty activities. But there are serious limits to the law. Off-duty political activities are not protected if you’re using the employer’s equipment or accounts. This means if you are working from home on an employer-provided computer, your political activity on that computer is not protected, even if you engage in it after hours. Also, as discussed above, if you work for the government, don’t count on this law to protect your political activities even if you engage in them on your own equipment after your shift is over. Moreover, employers get a big break on New York’s lawful off-duty conduct rule:  If they have a good faith belief that they are acting in accordance with law, enforcing a workplace policy, or that the employee’s conduct is illegal, then there is no violation even if they are wrong.

Please remember that just because you’re not supposed to get fired doesn’t mean you won’t get fired. Some employers will terminate you anyway, forcing you to spend a lot of money on a lawsuit to get your job back or to recover your pay. This isn’t any different from what employers could do in the days before social media – it’s just that it can be easier to see what you’re doing because of social media.

Social media is a wonderful tool for keeping us together during the pandemic. Being wise about using this tool when working from home may save your job. 

[1] Many employers require employees to sign some kind of confidentiality agreement. You may have signed one when you started to work, or it may have been in a stack of documents you got one day. If you violate a confidentiality agreement, even inadvertently, it can mean enormous legal trouble. Try to keep track of what you’ve signed.

COVID-19 In The New York Workplace – Part VIII: Workplace Safety

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

UPDATE 4/14/20: After this post was published, OSHA released new guidance advising employers of Delivery Drivers to take measures such as staggering shifts, providing hand sanitizer and disinfectants, and requiring deliveries to be left at loading docks or other locations. Additionally, New York Governor Cuomo has signed a new executive order requiring employers of essential workers who are working with the public to provide face masks at no charge to the employee.

Our essential workers – nurses, grocery store workers, emergency service workers, custodians, farm workers, meat packers, etc. – are working dangerous jobs to keep us safe and fed these days. Not all employers are treating essential worker safety as their number one priority, as demonstrated by several highly publicized worker walkouts in recent weeks. What can workers do in the face of limited protection from dangerous conditions?

Short Answer:  ORGANIZE!

Already Belong To A Union?

If you are an essential worker in a unionized workplace, your Union is probably already negotiating with the employer to implement safety measures such as automatic paid leave for workers who may have been exposed and PPE for those who remain. But a Union can’t negotiate over conditions it doesn’t know about. If you are a unionized worker and you are concerned about the safety of your work situation, call your Union reps immediately.

Additionally, you should check with your Union reps to find out if there is a provision in the collective bargaining agreement [“CBA”] that gives you the ability to refuse dangerous work. In some situations, a unionized worker can get protection from unsafe working conditions under the language of the CBA. BE CAREFUL WITH THIS IDEA. This is not carte blanche to refuse work. You have even less protection if your CBA doesn’t cover a right to refuse dangerous work.

Your Union can probably get information that you can’t, for example, information about COVID-19 cases in your workplace. Health and safety are terms and conditions of employment, so the Union has the right to demand information it needs to help protect you from exposure. Be aware that an individual employee does not have the right to that info, and the Union’s legitimate request for info to protect its members is balanced by the employer’s legitimate interest in complying with the confidentiality provisions of the Americans with Disabilities Act. The specific circumstances of your situation will dictate what is disclosed. It’s extremely unlikely that an employer will reveal the name of a worker who has been diagnosed, but the Union may be able to get information that helps it protect coworkers at risk of exposure.

No Union?  You Still Have Some Rights.

If your workplace doesn’t have a Union, you may still be able to engage in something called “protected concerted activity” over certain workplace problems. We strongly recommend you make an appointment with an attorney to determine whether concerted activity will be protected in your situation.

To have this protection, you cannot be the only worker with a complaint. The protest must be over something that affects multiple workers. The best way to get the “protected concerted activity” protection is to join with several other workers in speaking out about the employer’s failure to provide safe working conditions.[1] Get names, phone numbers, and email addresses of coworkers who agree that something needs to be done. Make sure you are actually protected. If you are a private sector worker, or if you work for a municipality or public school district in the State of New York, then you can probably join with your co-workers and collectively refuse to perform unsafe work.[2]  Here are some pointers:

  • If there’s time, give the employer a chance to fix the problem. It’s possible the employer just hasn’t thought of the safety measure that you’re asking for. Some employers have no idea how their employees actually do what they do.If you need more breaks for handwashing, or your sneeze guard is at the wrong height, get together with some other workers and go visit the manager. Ask for it nicely. Document this conversation, including date, time, place, a chronological synopsis of what was said, who said it, and who was present.
  • If the situation is urgent: 
    • Don’t assume that just because you say something in front of other workers your activity is protected. Make sure to document that whatever you say or do is on behalf of, and coordinated with, your coworkers. If you walk out and picket, make sure there are other people walking and picketing with you.
    • Don’t use profanity or resort to nastiness to get your point across. Your activity is not protected if it is threatening, egregiously offensive, or false.
    • Do document date, time, place, what was said in chronological order, and who was present.
    • Do remember that just because the employer isn’t supposed to do it, doesn’t mean they won’t. You might get fired. If your activity is protected, you will be able to pursue your rights with the NLRB or NYSPERB, but it can take a while. If it’s a choice between your job and your life, you need to make the right decision for you.

What if you’re the only one?

Are you stuck working in an unsafe environment just because you’re the only one dealing with it?  Maybe not. OSHA does offer slightprotection for workers in truly unsafe situations. If you are truly in a life threatening situation, and if you seriously believe that you are in immediate danger, and if you have previously asked the employer to fix the problem, and if the employer failed to do so, and if you don’t have time to contact OSHA to request an inspection, then you might have individual protection under OSHA.

That’s a lot of “ifs.” 

Bottom line, ask your employer to fix the dangerous situation. Tell the employer you won’t do the task until the employer has fixed the problem. Stay at the worksite unless the employer tells you to leave. Document the heck out of this interaction (when, where, chronology of the conversation, what was said, who was there). If the employer sends you home or otherwise retaliates, call OSHA within 30 days of the retaliation. The number is 800-321-6742. Don’t delay this phone call. OSHA won’t help you more than 30 days out.

It’s tough enough to be an essential worker. But you may have some control over the safety of your workplace. It’s tricky, so call an attorney if you are thinking of taking one of these steps. Stay safe, everyone.

[1] Fair warning:  If you get fired because of engaging in protected concerted activity, you may still be able to get some relief, but it will take a long time for the National Labor Relations Board or New York State Public Employment Relations Board to get to your case, both because of the shutdown and because it normally takes a while to process and litigate claims.

[2] Other states may have laws that govern the protected concerted activity of their public sector workers. Always consult with an attorney to see if you have such protections.

COVID-19 In The New York Workplace – Part VII: Discrimination and Harassment

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

Workplace discrimination and harassment against Asian Americans and Pacific Islanders is being fueled by xenophobic rhetoric about the COVID-19 virus.  Workers in these protected classes are facing everything from coworkers’ racist “jokes” to physical violence. 

No worker should be subjected to workplace discrimination or harassment on the basis of national origin or race at any time, and workplace hostility makes a coronavirus-affected workplace even more dangerous.  Fortunately, there are some steps that New York workers can take when faced with discrimination and harassment.

In the State of New York, the Division of Human Rights [“SDHR”] recently released a useful handout on COVID-19 related workplace discrimination. [1]  The handout describes a variety of examples of pandemic-related discrimination workers might face, including being sent home based on a perception that they are more susceptible to coronavirus because of their race, being discriminated against for wearing a face mask, and threats and harassment.  (Violence and threats of violence may be considered hate crimes, and it is appropriate to call 911 to address violence or threats.  It is also a good idea to call the New York State Hate Crimes Task Force at 1-888-392-3644.)

What can a worker do when faced with what appears to be race-based or national origin-based discrimination?  While there is no substitute for speaking with an attorney qualified to practice employment law in your jurisdiction, these are some pointers that can help you when you get to that conversation. 

  • Document the incident meticulously.  Write down what happened, who saw it happen, when it happened (date and time), who was hostile or discriminatory, who was the victim, where it happened, and the order in which things happened.  Note:  Discrimination/harassment that is not connected to your protected class is not illegal.  Don’t clutter up your documentation with incidents involving “equal opportunity” nastiness that you can’t show is connected to your protected class – it’s not fair, but it won’t get you anywhere.  This update from the SDHR includes a list of classes that are protected in the State of New York.
  • Think about the effect of the incident.  Has your safety been compromised?  Has the incident made it impossible for you to do your job (for instance, has your equipment been damaged or have you been denied access to key resources?) Do you need to see a mental health provider to deal with the emotional effects of the incident?  Has the incident affected your finances? Do you have a certificate or license that could be affected?
  • If the incident is one of a series of nasty events, document who, what, where, when, and how each incident occurred. 
  • Once you have written down all the information, send it in an email to yourself using your PERSONAL EMAIL ACCOUNT.  Email is a great tool for combating workplace discrimination, because an email message is automatically date-stamped and time-stamped.  However, IT’S ALMOST NEVER A GOOD IDEA SEND AN EMAIL FROM YOUR WORK ADDRESS TO YOUR PERSONAL EMAIL.  The employer can track that, and will use it against you.
  • If the incident physically prevents you from being able to do your job, has caused you to seek mental health treatment, has affected your finances, or is one of a series of ongoing events, have a look at your employer’s discrimination and harassment policy.  Figure out how and to whom to report the incident(s). 
  • Write a complete, succinct timeline of the discrimination and harassment.  Start with the oldest incident.  For each incident, include:
    • Date
    • Time
    • Place
    • Harasser Name
    • Harassee Name
    • Names of any witnesses
    • Photos, memos, videos, recordings
    • What happened, in chronological order
    • Its effect on you
  • Make a complaint pursuant to the employer’s discrimination and harassment policies.  Include your timeline in the complaint.  If the employer uses a complaint form, attach the timeline to the form. Send the complaint in a way that you can easily track. Don’t assume that a hand-delivered document or something sent via inter-office mail is going to be acknowledged or followed up on. Here are some trackable ways to send a complaint:
    • Send an email and request a “read” receipt
    • Send a fax and get a fax confirmation receipt
    • Send it via certified mail and track it through the post office
  • Carefully document everything that happens after you make your complaint, in the same manner you used to document the original incident(s). 
  • Once you’ve made a complaint, buckle your seatbelt.  The workplace is about to get very complicated for you.  People may stop talking to you – they’ve been ordered to do so, because now you are considered a litigation risk.  You may be put on paid leave pending the employer’s investigation, or you may be temporarily moved to a new assignment.  The ostensible reason for the change is to protect you from the harasser.  The real reason is because the employer is afraid someone will do something to you that will give you additional grounds for a lawsuit.  If the change affects your pay, call an attorney.
  • The employer will probably perform some kind of investigation.  You probably won’t get a copy of the report.  You may not even be informed of the results of the investigation.  
  • Once the employer’s investigation is complete, one of three things will likely happen:  a) the harasser will be removed, either losing his job or put in a place where he doesn’t have contact with you; b) nothing will change, except that now your coworkers might be afraid to talk to you; or c) you’ll experience workplace retaliation (i.e., even more nasty conduct with you as the target.)  Depending on how sophisticated the employer is, the retaliation may or may not be actionable.  Just continue to document everything that happens to you.
  • If you’ve hit a wall with the employer’s investigation and option (b) or (c) has occurred, that’s a good time to speak with an attorney and determine whether it makes sense to pursue the claim with the SDHR, the federal EEOC, or in another forum. 
  • CALL AN ATTORNEY.  It doesn’t matter if you call Satter Ruhlen Law Firm or another firm.  Just get in touch with someone with expertise in your jurisdiction who can tell you if any or all of the above pointers are a good idea.  It is well worth the consultation fee to determine what your rights might be in the workplace.

Workplace discrimination and harassment is intolerable under any circumstance.  In a workplace affected by coronavirus, it is extremely dangerous.  Ultimately you have to decide whether and how to fight it, but know that it is illegal and are laws to protect you. 

[1] This blog posts focuses on New York State Human Rights Law, but the EEOC has also issued a statement with links to its guidance on national origin and race discrimination. 

COVID-19 In The New York Workplace – Part VI: Telework

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

All of a sudden a lot of us are telecommuters.  For those of us who never experienced this, it’s hard to understand how our workplace protections work – after all, we’re not in the workplace, technically.  But as it turns out, there are still rules that apply, no matter where you’re doing the work.  Here are some of the rights you should be aware of.

Workplace Posters

You know those posters in the breakroom that no one reads?  Well, if you are telecommuting, you may start receiving those same posters via mail, email, and if available, on the company’s internal websites.  One poster that you should be seeing soon is the recently-released US Department of Labor Wage and Hour Division poster describing your rights under the FFCRA. It’s not a bad idea to have a look at those posters—you may have rights you didn’t even know about. 

The Fair Labor Standards Act (FLSA) 

The FLSA is why you have weekends, overtime hours, and minimum wage.  The employer must pay you for all hours during which you have been “suffered to work.”  Because of this requirement, your employer may be hypervigilant about how you record your hours and what happens if you fail to comply with those requirements.  Employers are allowed to discipline and terminate employees who fail to comply with policies that prohibit unauthorized overtime. Therefore, it is important that you as a worker be equally hypervigilant about recording your time correctly and not working more hours than your employer authorizes. 

The Occupational Safety and Health Act (OSHA)

Surprise!  Your home office (or in my case, my dining room table) is now an OSHA site.  But OSHA will not hold your employer liable for safety violations because the employer cannot be expected to control how you set up your home office.  If you do call in an OSHA violation on yourself, OSHA will inform you of the policy you’ve violated and, if you make the request, will let the employer know that there has been a complaint.  But OSHA will not be citing your employer for the snarl of electrical cables you have running across your hallway.

Nevertheless, because of potential workers’ compensation liability, your employer may require you to report any work-related injuries or illnesses because the employer may have reporting requirements.  So if you are injured while you are working from home, and the injury is “directly related to the performance of work rather than to the general home environment or setting,” you may still be required to report that injury.  If your employer requires you to use a particular device in your work, the employer could still be liable for injury caused by the device.  Therefore, the employer may be issuing safety rules for your home office.  It’s a good idea to follow them.

The Americans With Disabilities Act

As discussed in detail in Part V , the employer may have a duty to provide you a reasonable accommodation while you’re working from home.  If you have an accommodation that helps you use a computer at the workplace, and you are working on an employer-issued computer at home, it is possible that the accommodation applies at home.  Whether you can get the accommodation at home will depend on its reasonableness; therefore, it’s unlikely that an employer would be required to install an elevator in your home, but the employer may be required to allow you to continue to use text to speech software that allows you to perform the essential functions of your job. 

Cyber Security

 Employers are very concerned about their data, and they are very concerned about what you do with that data.  You may find yourself subject to much more stringent security measures than what you’re used to, such as what types of connections or equipment you can use, where you can save files, and what you can use employer-issued devices to do.  These rules may or may not be consistent or practicable.  If you have a concern about how a cyber security rule is affecting your ability to perform your job, whether it’s infringing upon an accommodation or eating into your non-work time, document the effect carefully in real time.[1]  The documentation may save your bacon if the employer decides you haven’t complied with its cyber-security rules. 

[1] An email sent to yourself is date-stamped and time-stamped.  Just type a note to yourself stating the date, the time, what happened, and how it affected your work.  Include relevant details (how, what, when, where, who).  Make sure you use your personal email for these notes. Keep your emails in a special folder.  IT’S ALMOST NEVER A GOOD IDEA SEND AN EMAIL FROM YOUR WORK ADDRESS TO YOUR PERSONAL EMAIL.  The employer can track that, and will use it against you.

COVID-19 In The New York Workplace – Part V: Accommodations

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

Generally speaking, under both the ADA and the New York State Human Rights Law, a disabled employee should be provided reasonable accommodations.  What constitutes a reasonable accommodation in the era of the coronavirus? 

Accommodations:  If an accommodation would allow an employee to perform the essential functions of the job, an employer is required to provide that accommodation unless the accommodation would constitute an “undue hardship” for the employer.  “Undue hardship” usually (but not always) means the accommodation would be cost-prohibitive.  For instance, depending on the size and financial condition of the employer, arranging to have a desk raised a few inches in order to accommodate a wheelchair may not be an undue hardship, but installing an elevator might be.  The nature of the work to be performed is another consideration; for instance, it could be difficult, if not impossible, for a factory worker to telework; on the other hand, an accounting office may have a relatively easy time moving its employees to telework. 

Accommodations already provided in the workplace may also be required in telework situations, provided they do not create undue hardship.  For example, Example C of the EEOC guidance found at https://www.eeoc.gov/laws/guidance/upload/pandemic_flu.pdf indicates that, if an employee has a screen reader as a reasonable accommodation at work, and the employer issues notebooks to its employees so that they can telework, the employer should issue that employee a notebook with a screen reader installed.

If you are at heightened risk, personal protective equipment [“PPE”] may be considered a reasonable accommodation.  To get PPE as a reasonable accommodation, you will probably need to have your doctor fill out paperwork that will allow the employer to determine what type of PPE it can provide to you without undue hardship.

The Interactive ProcessAn employer does not have to provide the exact accommodation requested.  If an employer receives an accommodation request, the employer and employee have a duty to engage in an “interactive process,” which is usually a conversation or series of conversations to determine what accommodation can be provided without undue hardship. It is not a bad idea for both parties to document these conversations. For example, if an employee asks for face masks as a reasonable accommodation but the employer cannot get hold of face masks because of the world wide shortage, it may be an undue hardship for the employer to provide them.  The interactive process might result in an alternate arrangement, for instance, allowing the employee to use an unused office with a door that closes and prohibiting other employees from entering the office.    

The EEOC notes that due to the massive workplace disruption caused by the pandemic, employers may take longer than usual to respond to requests for reasonable accommodations. At least for the present, such delay is not grounds to charge an employer with failure to accommodate. 

What if your doctor states that you should stay home due to a heightened risk of contracting coronavirus?

First, remember that under the New York State Paid Leave Act, a note from your doctor by itself is not sufficient to get you coronavirus-specific leave.  New York coronavirus leave is only available if a government entity has ordered you to quarantine or isolate.  (By contrast, under the FFFCRA, effective April 1, a doctor’s note will get you coronavirus leave.  Please see Parts I, II, and III of this series for further discussion of eligibility requirements and paid leave amounts.) 

If you do not have coronavirus symptoms, but have a condition that puts you at increased risk, you need to speak with your employer about getting a reasonable accommodation.  This may mean having your doctor fill out paperwork specifying your limitations and what accommodation you might need.  If it does not present an undue hardship (say, in the accounting example above), telework can be a reasonable accommodation. 

Some industries need people on-site. For example, health care workers and grocery store stockers are on the front lines of this crisis.  If you are in an industry that does not lend itself to telework, and your doctor says you have a heightened risk for coronavirus, then you may be able to request leave as an accommodation.

Absent undue hardship to the employer, leave can be considered a reasonable accommodation.  However, leave of indefinite duration is not “reasonable.”  Therefore, if your doctor says you should stay home “until further notice,” the employer may not be required to provide you leave as an accommodation. 

The leave may be unpaid.  Depending whether you fit the eligibility requirements of the New York State Paid Leave Act or the FFFCRA, you may or may not be entitled to paid leave.  Please see Part III of this series for a discussion of some of your options if you cannot get paid leave.

COVID-19 In The New York Workplace – SPECIAL: Unemployment Benefits

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

While we are looking forward to posting about disability accommodations during the pandemic, we pause our regularly-scheduled blog to bring you some updates on unemployment benefits, based on the passage of the Federal CARES Act on March 27, 2020. These provisions went into effect upon passage, so if you are out of work due to COVID-19, there may be immediate relief available.

Unemployment Benefits Under the Federal CARES Act

Included in the 827-page Federal Coronavirus Aid, Relief, and Economic Security (CARES) Act signed into law on March 27, 2020 are several provisions which expand existing unemployment insurance benefits (UIB) for workers who are out of work because of COVID-19.  This post will discuss three new programs created under the CARES Act:  Pandemic Unemployment Compensation, Pandemic Emergency Unemployment Compensation, and Pandemic Unemployment Assistance. 

Pandemic Unemployment Compensation provides an additional $600.00 per week in compensation to workers receiving UIB through July 31, 2020.  This additional $600.00 is in place regardless of the amount of UIB a worker otherwise receives, even if the worker is receiving partial UIB.  Currently, the New York Department of Labor pays a maximum of $504.00 in weekly UIB.

Pandemic Emergency Unemployment Compensation provides an additional 13 weeks of state UIB, which will kick in after all regular state benefits have been used up.  (In New York, unemployed workers usually receive up to 26 weeks of UIB).  The additional 13 weeks of UIB is conditioned upon the worker actively seeking for work, with allowances for workers who are unable to conduct job searches due to illness, quarantine, or “movement restriction” such as the New York State On PAUSE order (Executive Order 202.6). 

Pandemic Unemployment Assistance gives emergency assistance to workers who usually can’t collect UIB, for example workers who have exhausted their state benefits, workers who are self-employed, independent contractors, and workers who do not have a long enough work history to qualify for traditional UIB.  The program will be effective until December 31, 2020, retroactive to January 27, 2020, for a maximum of 39 weeks.  The benefits are calculated in accordance with the state’s unemployment rules, but the minimum weekly benefit payable is half of the average benefit amount in the state.

To get Pandemic Unemployment Assistance, workers need to certify that they are partially or fully unemployed or unable to work because of one of the following reasons:

  • The worker has a diagnosis or symptoms of COVID-19
  • A member of the worker’s household has been diagnosed with COVID-19
  • The worker is caring for someone with COVID-19
  • The worker is providing childcare because of a school closing
  • The worker has been quarantined or advised by a healthcare worker to self-quarantine
  • The worker was offered a job but cannot start the job due to the COVID-19 outbreak
  • The worker has become the head of household because the head of household has died of COVID-19
  • The worker had to quit because of COVID-19
  • The workplace is closed due to COVID-19
  • Other criteria as may be promulgated by the Department of Labor. 

Workers are not eligible for Pandemic Unemployment Assistance if they are being paid to telework or are receiving paid sick days or paid leave. 

New York State Unemployment Benefits Under Executive Order 202.5

Executive Order 202.5 waives New York’s traditional 7-day waiting period for eligibility for employees who cannot work because their workplace is closed.

Because of the volume of applications, the New York Department of Labor requires workers to apply for UIB based on the first letter of their last name: 

  • A-F on Monday
  • G-N on Tuesday
  • O-Z on Wednesday
  • If you missed your filing day, you can file on Thursday or Friday.

The claim will be effective on the Monday of the week the claim was filed. 

NEXT UP:  In Part V, we’ll talk about Reasonable Accommodations during the pandemic.

COVID-19 In The New York Workplace – Part IV: Disability Rights

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

As you are no doubt aware, it is illegal for an employer to discriminate against an employee due to the employee’s disability.  What is the impact of the pandemic on this prohibition?

To answer this question, we have to determine whether COVID-19 even counts as a disability.  It is important to understand that the definitions of disability under anti-discrimination statutes are different from the definitions of disability under, for instance, workers’ compensation or Social Security.  Moreover, for purposes of discrimination, New Yorkers have two separate, albeit related, definitions of “disability”:  The definition that appears at New York State Human Rights Law (Exec. Law §292(21)) and the definition given under the Federal Americans With Disabilities Act, 42 USC §12102. 

While the definitions are different, and there has been plenty of litigation about the nuances of both statutes, they both boil down to the following:

  1. An impairment that either substantially limits one or more major life activity or prevents the exercise of a normal bodily function;
  2. A record of having such an impairment; or
  3. Being regarded as having such an impairment.

            Please note that there is no way to determine whether your particular condition meets any definition of “disability” unless you speak to a competent lawyer in your jurisdiction. 

            Given the above generalization, what are some actions you might run into in your workplace? 

Termination:  It is probably illegal for your employer to fire you for contracting the coronavirus.  It is also probably unnecessary.  Employers are being provided with a wide array of resources to cope with quarantines and shutdowns, including ways to pay for paid leave.  Additionally, if all employees in a particular workplace are entitled to the same sick leave provisions, it probably would be illegal for an employer to deny sick leave because the particular illness was coronavirus. 

Could an employer terminate you to avoid having to pay for sick leave under the FFFCRA or New York Paid Leave provisions?  Section 5104 of the FFFCRA prohibits employers from discharging, disciplining, or otherwise discriminating against employees who take leave pursuant to the Act.  Similarly, §1(e)(3) of the New York  Paid Leave Act prohibits retaliation against an employee for taking leave under the act; additionally the New York Act amends New York Labor Law §196-b(7) to prohibit retaliation for requesting sick leave provided under the Act, whether it is coronavirus-related or otherwise.  So, even if COVID-19 is not considered a “disability” under the ADA or Human Rights Law, it’s probably not ok for an employer to fire you for being quarantined.

Requiring Employees To Stay Home:  An employee is not protected by anti-discrimination provisions if the employee presents a “direct threat” to workplace safety.  The CDC’s current guidance raises COVID-19 to the level of a “direct threat.”  Thus, if an employee has coronavirus symptoms, the employer can order the employee to stay home. 

Questions, questions:  Generally, employers are not allowed to ask disability-related questions.  However, an employer is allowed to ask about an employee’s medical condition if the inquiry is job-related and consistent with business necessity.  Thus, an inquiry to determine whether the employee is able to perform the essential functions of the job can be appropriate if the employer has a reasonable, objective belief that the inquiry is necessary.  Similarly, employers are allowed to ask questions that will allow them to determine whether there is a direct threat to workplace safety, so long as there is a reasonable, objective belief that there may be such a threat. 

            In the context of the pandemic, it is probably not a violation for an employer to ask about possible exposure after an employee has been traveling; to make inquiries about symptoms; or to take employees’ temperatures.  However it probably is a violation for an employer to ask asymptomatic employees if they have conditions that make them especially vulnerable to the COVID-19 virus.  Moreover, even though medical information gathered by an employer is usually confidential, an employer could be subject to liability for failing to share information about potential COVID-19 exposure with employees who need to know.

NEXT UP:  In the next blog, we’ll talk about Reasonable Accommodations during the pandemic.

COVID-19 In The New York Workplace – Part III: New York State Paid Leave

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

New York State’s Paid Leave legislation went into effect on March 18, 2020.  In addition to providing coronavirus-related paid leave, it modifies the existing New York State Paid Family Leave Act and institutes paid sick leave for non-coronavirus illness.  Today’s blog will discuss eligibility and pay for coronavirus leave under the New York legislation. 

New York State Paid Leave is available to the extent that it exceeds Federal benefits.  This means that a worker affected by coronavirus should first look to the FFFCRA and then to New York State benefits.  Note that, unlike FFFCRA leave, there is no waiting period for New York leave.

  • If you or your children are quarantined:  Paid leave is available under the New York legislation for workers who are under quarantine or isolation issued by the State, Department of Health, local health board, or other government entity.  New York Coronavirus Leave is not available if the quarantine/isolation is recommended by a health care provider but not a government entity. 
  • If you work for a private employer with ten or fewer employees:  you are entitled to unpaid leave during quarantine. 
  • If you work for a private employer with 11 to 99 employees:  you are entitled to five days of paid leave during quarantine.
  • If you work for a private employer with 100 or more employees, or if you work for a public employer:  you are entitled to fourteen days of paid sick leave during quarantine.
  • Being a “nonessential” worker is not the same as being quarantined/isolated.  While there are benefits available for workers who are laid off (to be discussed in a future post), “nonessential” workers who are not working because their workplaces closed are not eligible for paid leave. 
  • Not Everyone Who Is Quarantined Is Eligible For Paid Leave
  • Employees who voluntarily travel to level two or level three health notice countries are not eligible for paid leave, but may be eligible for unpaid leave.
  • Employees who are quarantined themselves, but are asymptomatic and physically able to work from home, are not entitled to paid leave. 
  • If you are not eligible for paid leave:  Even if you are unable to get paid leave under the above eligibility criteria, you may be able to obtain some financial relief under one or more of the following options. 
  • New York State Disability Benefits:  The New York State Legislation also provides that, for purposes of New York State Disability Benefits (which are provided through the New York State Workers’ Compensation Board), you are considered “disabled” if you are unable to perform the regular duties of your employment as the result of mandatory or precautionary quarantine or isolation. The usual waiting period for disability is lifted under this legislation. Additionally, the law increases New York State Disability Benefits to a maximum of $2043.92 per week.  Quarantined employees with annual salaries up to $150,000.00 are eligible for New York State Disability Benefits.  So if you are not eligible for paid leave while you are quarantined, you can apply for New York State Disability Benefits through the New York State Workers’ Compensation Board.
  • New York State Paid Family Leave:  The new legislation increases paid family leave for coronavirus-related issues to a maximum of $840.70 per week.  It removes the waiting period for benefits; however, an employee is expected to notify the employer of the need for Paid Family Leave at least 30 days prior to the start of leave, or as soon as possible thereafter. The benefit is now available for employees whose spouse, domestic partner, child, step-child, parent, step-parent, parent-in-law, grandparent, grandchild contracts coronavirus or another serious health condition. 
  • Job Protection:  Like FFFCRA leave (see Part I), New York coronavirus leave cannot be counted against sick leave accruals, and employees must be returned to the position they held prior to taking leave. 

NEXT UP:  On Monday, we’ll start discussing how employers’ coronavirus responses may affect other workplace rights, such as nondiscrimination statutes, safety regulations, and collective bargaining rights.  Until then, take care this weekend and stay well!

COVID-19 In The New York Workplace – Part II: FFFCRA Workplace Rights

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

This is the second in a series on New York’s COVID-19 response in the workplace.  Each day we’ll post about a different aspect of what employees can expect from new federal and state legislation passed in response to the pandemic. 

Today we’ll talk about your workplace rights under the Federal Families First Coronavirus Response Act [“FFFCRA”], which goes into effect on April 1, 2020.

FFFCRA provides job security and sick leave protection for workers eligible for leave.  Moreover, there are income protections for employers to help employers cover the costs of paid leave for eligible employees. 

To recap Part I, whether and how much paid leave an employee can receive depends on the size of the employer and who is in quarantine (viz., the employee or a member of the employee’s household).  Please see Part I of this series for a detailed discussion of eligibility requirements). 

Job Security:  If your workplace employs 25 or more employees and you take FFFCRA leave, you must be returned to the same or an equivalent position when you return from leave.  If your workplace employs fewer than 25 employees, the employer must take reasonable steps to return you to the same or equivalent position, but if the position no longer exists, there is no requirement to return you to work. 

Sick Leave:  Employers are not allowed to count FFFCRA leave against an employee’s accrued paid leave.  This means that if you have sick leave, PTO, vacation, or other paid time accruals, the employer may not force you to use those accruals before you use FFFCRA or count your FFFCRA leave against those accruals.  However, you may voluntarily decide to use your accruals to cover the 10-day waiting period before you start receiving benefits. 

Notice Posting:  The U.S. Department of Labor will soon release notice postings (similar to posters you may have already seen your breakroom) detailing employees’ rights under the FFFCRA.  These posters must be put up in conspicuous places in the workplace. 

Employers Will Get Assistance To Pay For FFFCRA Leave:  Employers are being reimbursed for 100% of any paid leave taken under the FFFCRA by eligible employees.  Employers will have no payroll tax liability, and will receive an immediate dollar-for-dollar tax offset against payroll taxes on any eligible FFFCRA leave.  Additionally, Employers are entitled to request expedited refunds on any payroll tax credit from the IRS. 

NEXT UP:  Join us tomorrow for Part III, which will discuss the New York State Paid Leave Act.

217 S. Salina St., 6th Fl.,
Syracuse, NY 13202

T: 315-471-0405
F: 315-471-7849

Attorney Advertising. Prior results do not guarantee a similar outcome.