Tag Archives: Workplace Rights

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 812-272-1474 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 812-272-1474 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 812-272-1474 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 812-272-1474 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 812-272-1474 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 812-272-1474 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.

COVID-19 In The New York Workplace – Part I: FFFCRA Eligibility

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 812-272-1474 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

UPDATED 3/30/20: The U.S. Department of Labor has expanded its COVID-19 FAQs. The updated FAQs have answers to dozens of questions about how the FFCRA may affect your right to leave.

This is the first 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’s topic is eligibility for paid leave under the Federal Families First Coronavirus Response Act [“FFFCRA”], which goes into effect on April 1, 2020. 

Some general eligibility requirements:  The FFFCRA applies to workplaces with fewer than 500 employees.  There is a 10-day waiting period before an employee can begin to receive benefits. New York State employees are expected to exhaust leave options under the FFFCRA and use the New York legislation to fill in any gaps. 

Importantly, not every employee is eligible to receive FFFCRA paid leave, and the amount of leave depends on why the employee is out of work. 

If you are quarantined yourself:  Employees who are quarantined, whose health care provider has recommended self-quarantine, or who are experiencing symptoms and seeking diagnosis, are eligible for up to 80 hours of paid leave with a maximum of $511.00 per day, if they are unable to work or telework.  This means if you are home for a reason unrelated to COVID-19 and you are able to telework, you are not eligible for FFFCRA paid leave.

If someone in your home is quarantined:  Employees whose children’s school or daycare is closed, or who are responsible for the care of an individual subject to quarantine or recommended self-quarantine, are eligible for up to 80 hours of paid leave at 2/3 pay, with a maximum of $200.00 per day, if they are unable to work or telework. If that employee has been employed for at least 30 days, and is unable to telework due to child care needs, that employee may be eligible for up to 10 additional weeks at 2/3 pay per day. Again, an employee who is staying home to care for a loved one but is able to telework is not eligible for FFFCRA paid leave.

If your employer employs fewer than 50 employees, the employer may apply for an exemption from the above rules if the business will be jeopardized by the requirements.  Also, employers of healthcare workers and emergency responders may deem certain employees exempt from the FFFCRA requirements. 

Note that FFFCRA benefits are not available just because your workplace has closed.  Only if you fit the above eligibility standards can you receive paid leave under the FFFCRA.

NEXT UP:  Join us tomorrow for Part II, which will discuss your workplace rights if you need to take FFFCRA.

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