5 Issues for Employees Returning to the Workplace

Although New York is in a state of “pause” with non-essential employees still being required to work from home, it will only be a matter of time before the pause is lifted. Before returning to work, we recommend you consider the following five issues:

  1. Testing and Questioning of Employees: The Equal Employment Opportunity Commission (EEOC) has advised that employers can test employees before allowing them into the workplace. The EEOC cautioned that the tests must be accurate and reliable, and employers should review guidance from the U.S. Food and Drug Administration or the CDC, about what may or may not be considered safe and accurate. Employers may ask employees if they have exhibited symptoms associated with COVID-19. An employer may take employees temperatures and ask questions of those entering the workplace because COVID-19 is a “direct threat” to health in the workplace under the Americans with Disabilities Act (ADA). The employer must keep the employees’ health information confidential, but can disclose the name of an employee with COVID-19 to a public health agency. The employer must conduct temperature screening in a way that is safe and respectful for employees.
  1. Addressing Safety Concerns About Returning to Work: Being nervous about Coronavirus likely will not be enough to protect you if you refuse to return to work. You will need a legal justification for refusing to work. The Occupational Safety and Health Act and Act gives employees the right to refuse to work if they believe workplace conditions could cause them serious imminent harm. This law requires that employers guarantee employees a workplace “free from recognized hazards that are causing or likely to cause death or physical harm”. If you think your workplace is unsafe, and you have specific examples, you can file a complaint with the Occupational Safety and Health Administration. Beware, you must file within 30 days! If you and another employee feel your workplace is unsafe, and you both decide not to go into work as a result, you may be protected under the National Labor Relations Act (NLRA) as engaging in “concerted activity”.  You can file a charge against your employer with the local chapter of the National Labor Relations Board (NLRB). Proposed changes to New York’s Labor Law are pending before the Legislature which, if passed and enacted, would provide greater protections to employees who report unsafe conditions.
  1. Addressing Pay Concerns About Returning to Work: Most employees are at-will employees. While an employer can reduce pay for at-will employees due to the economic impact caused by the Coronavirus, an employer can not reduce pay for prohibited discriminatory reasons. Under New York law, an employer can reduce an at-will employee’s pay going forward, but not retroactively i.e., the employer has to pay the agreed rate for work already performed, and an employer must give an employee at least 7 days notice of any change in the rate of pay. The Fair Labor Standards Act (FLSA) requires that almost all workers be paid minimum wage and most workers get time and a half for overtime. Such workers are nonexempt. If you were entitled to time and a half before the emergency, you still are, even if you are teleworking. Whether an employee is exempt i.e. primarily performs managerial duties, or nonexempt is key. Exempt employees may lose their status if their employer decides not to pay them on a salary basis, or such employees spend more time performing nonexempt work. While an employer may reduce an employee’s salary, an employer cannot change the salary week-to-week based on the number of hours the exempt employee is working.
  1. Requesting a Reasonable Accommodation if an Employee Has a Medical Condition Making them Vulnerable to COVID-19: If an employee has a condition that puts them at greater risk to COVID-19, she can request a reasonable accommodation from her employer. Under federal, state and local laws, it is necessary for the employee to show her medical condition is a disability/impairment. Conditions that would likely be considered a disability/impairment include diabetes, heart disease, lung disease and immunodeficiency. To begin the process, have a medical professional make a determination that you have a medical condition that would qualify as a disability/impairment. Then, provide your employer with a request for a reasonable accommodation (e.g. teleworking), along with that documentation. An employer has to engage in an interactive process with the employee, and is required to provide a reasonable accommodation, unless it can show doing so represents an undue burden or hardship.
  1. Sick Leave Available to Employees: Under the Families First Coronavirus Response Act (FFCRA), if you work for an employer with less than 500 employees, have COVID-19, have symptoms or have been quarantined by a doctor or the government, you can take 2 full weeks of paid sick leave, subject to certain caps. The FFCRA includes 2 weeks of paid sick leave at 2/3s pay to employees unable to work because they are caring for someone who has been quarantined.

The FFCRA also expands family and medical leave (FMLA) and provides up to 12 weeks of paid leave to employees unable to work because they are caring for a child whose school or place of care is closed because of the Coronavirus. Employees with less than 50 employees do not have to offer the paid leave if they can demonstrate it would jeopardize the viability of the business.

There are a lot of different facets regarding the above issues. It is best to seek the advice of an experienced employment attorney if you are faced with or have concerns about any of these issues.

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