COVID-19 NY Employment Issues

Due to the ongoing pandemic, there are many COVID-19 NY employment issues that might require the services of an attorney. Employers who retain employees during COVID-19 have a duty to pay them. Likewise, employees who work long hours — such as commercial vehicle drivers — are entitled to overtime pay. If you are an employer or an employee in Western New York who needs help understanding your legal rights and obligations during COVID-19, please contact our office today. We are here to help.

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New York Employees’ Covid-19 Pandemic Rights

New York Employees have the right to a healthy and safe workplace with adequate protections against infection and the spread of COVID-19. Guidance has been issued by federal, state and local agencies including the Occupational Health and Safety and Health Administration (OSHA), the Center for Disease Control (CDC), the New York State Department of Health (DOH) and local health departments.

EMPLOYER PROTOCOLS

Under current guidelines, employers should institute the following protocols:

  • Social Distancing: Maintain six feet or more of distance between all individuals in the worksite.
  • Face Masks: Provide double layer cotton face masks to employees.
  • Hand Sanitizer, Hand Washing, and Gloves: Provide hand sanitizers that are readily available in multiple locations in the workplace. Allow employees to wash their hands with soap and water regularly. Provide gloves to employees who request them.
  • Regular Disinfection: Clean and disinfect regularly all frequently touched surfaces in the workplace, such as workstations, keyboards, telephones, handrails, and doorknobs.
  • Increase Ventilation Rates: Increase the percentage of outdoor air that circulates.
  • Notification of Employees: Inform employees of their possible exposure to COVID-19 if a fellow employee is confirmed to have COVID-19, providing meaningful details about potential exposure while maintaining confidentiality as required by the Americans with Disabilities Act (ADA).
  • Deep Cleaning After Confirmed Cases: If an employee is suspected or confirmed to have COVID-19, the employer shall close off the workplace areas visited by the ill person, ensure increased air circulation in the area, and then wait 24 hours or as long as practical to conduct deep cleaning and disinfection as directed by CDC.

 YOUR RIGHT TO PROTEST AND ORGANIZE

To secure health and safety precautions against infection and the spread of COVID-19 in your workplace, speak out and organize with your co-workers. These types of actions are protected from retaliation as concerted activity under federal and/or state labor law.

Can I discuss my concerns related to COVID-19 with my co-workers?

YES. You have the right to talk to your coworkers and collectively advocate for better working conditions—as long as it is during non-work time (i.e., you are off the clock).

Can I post on social media about COVID-19 related problems in my workplace? YES. Federal labor law protects your right to post on social media about workplace conditions. It is similar to your right to speak with your co-workers. Your posts are more likely to be protected if they are part of a discussion involving general policy or multiple co-workers’ concerns. However, you may not be legally protected from adverse employment action if you post about personal gripes, reveal private details about co-workers or the company’s operations, or knowingly misrepresent the facts.

Can I speak to the media about COVID-19 related issues in my workplace?

YES.  If you and your co-workers are working together to improve conditions in your workplace, you have the right to speak publicly about your campaign and concerns under federal labor law. This extends to your right to speak out in the media about your collective action and concern. However, if you knowingly state false accusations or company or coworkers’ private information, your speech may no longer be protected. collaborate with your co-workers about talking to press, to  ensure that your actions are considered to be concerted activity.

Can my co-workers and I refuse to work or go on strike to protest unsafe conditions?

YES. If you and your co-workers collectively refuse to work because of concerns that you are not safe under current working conditions, you are protected from adverse employment action under federal labor law. However, the right to strike does not extend to a right to be paid during the strike period. Always seek legal advice as soon as possible if you are considering taking individual or collective action.

Can my employer fire or otherwise retaliate against me for raising safety concerns, taking collective action, or filing a complaint?

  1. Federal labor law protects workers who engage in concerted activity from employer retaliation. Complaints can be filed with the National Labor Relations Board. Farm workers, who are not protected under federal law, are protected under New York state labor law for this type of activity. NY State Labor Law also protects the rights of workers to be free from retaliation. Your employer may not discharge, suspend, demote, or take other adverse action against you because you raised concerns to your supervisor or have taken action to file a complaint with the New York Department of Labor or the New York Attorney General about unsafe workplace conditions. The Occupational Safety and Health Act (OSHA) also contains protections against retaliatory action and accepts complaints. Contact information is listed at the end of this document. You must file your complaint with OSHA within 30 days of the retaliatory action. If your employer retaliates against you for raising safety concerns, you should also consult with an attorney about filing a claim.

YOUR RIGHT TO PAID SICK AND FAMILY LEAVE

The federal and state governments have passed emergency legislation guaranteeing job protection and wage replacement to employees for illness and quarantine absences resulting from COVID-19.

Can I get paid sick or quarantine leave if I am absent from my job due to COVID-19?

YES. All employees in New York State are now entitled to COVID-19 paid sick and family leave if they are subject to a government order of mandatory quarantine or isolation. COVID-19 paid sick and family leave is in addition to other paid leave provided by your employer (i.e., vacation leave, PTO, etc.) The size of your employer will determine how the benefits are paid and how many days you receive.

  • Large employers (100 or more employees) must provide at least 14 paid sick days.
  • Mid-sized employers (11-99 employees) and small employers with net incomes of over $1 million must provide at least five paid sick days.
  • Small employers (1-10 employees) must provide, but are not required to fund, five sick days. Wage replacement payments will be paid through a combination of New York State paid family leave and disability benefits.

How can I prove I am subject to a government order of mandatory quarantine or isolation?

Your local health department is responsible for issuing these individualized orders. The “New York State On PAUSE” order requiring the closure of all non-essential businesses, sheltering in place, and social distancing is not a mandatory order of quarantine or isolation. You can obtain the necessary documentation from a licensed medical provider who has treated you and attests that you qualify for the order https:// paidfamilyleave.ny.gov/new-york-paidfamily-leave-covid-19-faqs  . You must follow up with your local health department and submit the required order as soon as it becomes available.

What if I need more sick days than my employer is required to provide?

Once you exhaust your COVID-19 sick days, you may be eligible to receive your weekly wages through a combination of existing New York paid family leave and disability benefits.

Contact the attorneys at Friedman & Ranzenhofer, PC at 716.542.5444 if you have any questions about your rights as an employee during the COVID-19 pandemic.

NY Employers’ Duty to Pay Employees When Closed

Even though  there is no duty for any employer to retain employees while New York  Governor Cuomo’s  PAUSE Order remains in effect, employers who choose to retain employees, may have a duty to pay them.

To determine if you must pay your employees:

First, determine which employees are non-exempt employees and which are exempt:

  • Non-exempt employeesare employees who are covered by the minimum wage and overtime provisions of the Fair Labor and Standards Act (FLSA). These employees are paid hourly for the time they have actually worked (and paid at an overtime rate for time worked over 40 hours in a work week).
  • Exempt employees are paid on a “salary basis” and are exempt from FLSA’s minimum wage and overtime requirements because of the nature of their job requirements

Second, determine if your employees are performing any work while the PAUSE Order is in effect, either at the place of employment (if an essential business) or at home (if a non-essential business).

Working from home can include phone calls, e-mail, research, or COVID-19 related follow-up for the employer. Non-exempt employees must only be paid for the hours they worked. You need not pay them if they are not working.

If an exempt employee works for any part of the work week, he or she must be paid for the entire week. If an exempt employee does not perform any work for the entire work week, an employer may require the exempt employee to use their vacation or paid time off instead of paying the employee. However, if the employee has not worked the entire week and has no accrued paid time off, the employer is not required to pay the exempt employee’s salary.

United States Court of Appeals Unanimously Holds New York Truck Drivers are Entitled to Overtime Compensation Under the New York Labor Law

In Hayward v. IBI Armored Servs., Inc.. – F.3d –, 2020 WL 1647176 (2d. Cir., April 3, 2020), the United States Court of Appeals for the Second Circuit overturned a decision from the United States District Court for the Eastern District of new York dismissing the overtime component of a claim for wage theft brought under the Fair Labor Standards Act and the New York Labor Law. In the case, the lower court held that the Fair Labor Standard Act specifically made the Plaintiffs, truck drivers for an armored car business, ineligible for any overtime wages because of the motor carrier exemption. In overturning the district court, the Second Circuit emphasized that the New York Labor Law’s overtime-pay provision mandates that all employees be paid at an overtime rate of one and one-half times the minimum wage even if the employees fall within the motor carrier exemption of the Fair Labor Standards Act.

This is a monumental decision, especially during the COVID-19 pandemic, where truck drivers and other logistical employees are likely working longer hours to make sure supply chains remain intact and people have the supplies they need. There is an exemption in the Fair Labor Standards Act which states an employee driving a truck in excess of 10,000.00 pounds is not entitled to overtime compensation. You can read more about the specifics of what exactly falls in the motor carrier exemption on the Department of Labor website. What this new Second Circuit decision means is that even New York truck drivers who fall within the motor carrier exemption precluding overtime at the rate of one and a half times their usual hourly rate are now entitled to overtime compensation at one and a half times the minimum wage for the State of New York.

If you or a loved one are working long hours as a New York truck driver and are not receiving overtime compensation please contact our office for a legal consultation.

COVID-19 NY Employment Issues