By Valerie K. Ferrier, Esq .
Many businesses in New York are starting to think about when and how to reopen. Governor Cuomo has indicated that upstate regions could embark on a phased, partial reopening shortly after May 15, when the statewide stay-at-home order is currently scheduled to expire. Manufacturing, construction, and other industries with work that cannot be performed remotely will probably be the first to come back on line. As the epicenter of the state’s pandemic outbreak, New York City and its suburbs are likely to face restrictions on businesses and residents’ activities for weeks, if not months. With little guidance from the State on how to reopen, employers must consider issues that are generally more practical than legal, but there are many legal implications to consider.
What if Employees Don’t Want to Come Back to Work?
Because of the additional $600.00 weekly payment from the federal government through the CARES Act, many hourly workers in New York have actually been earning more through unemployment than they did when fully employed. People in that position may not want to come back to work. One employee’s reluctance may benefit others, those who may welcome additional or longer shifts. However, the federal supplement is only scheduled to last through July 31, 2020. Given the record level of unemployment, businesses whose former employees prefer to collect unemployment will probably not have a hard time finding replacement workers.
Employers can generally discharge anyone who refuses to return to work upon reasonable notice. Such an employee will also likely be disqualified from receiving further unemployment benefits. While some employees may have legitimate reasons preventing their return, such as child care responsibilities or illness, simple fear of exposure is not an adequate reason to refuse to come back to work. Employees may be protected by federal and state workplace safety and public health laws if a business is not implementing appropriate precautions.
What Precautions Should Employers Take?
Businesses are confronting how to ensure that returning employees are not bringing COVID-19 into the workplace. The short, honest answer, as of this writing, is that there is no sure way to do that. Many people with COVID-19 have no symptoms. The EEOC advises that consistent with the Americans with Disabilities Act, employers may require mandatory medical testing of employees so long as it is “job related and consistent with business necessity.” Ensuring the health and safety of the workplace, other employees, and customers qualifies for mandating medical testing. The law allows employers to take employees’ temperatures, request a doctor’s note from anyone who was sick, or ask questions about symptoms of COVID-19 or possible exposure. However, no medical information at this point can tell us whether someone who has recovered can pass the virus to others, or whether they will fall ill again. Whatever choices businesses make, they should implement consistent policies and practices, apply them equally to all employees coming back to work, and be sure to safeguard the confidentiality of any private health information gathered.
Employers with hourly employees also need to think about Labor Law implications of additional time that may be required for decontamination, waiting for any mandatory testing, etc. Generally, employees must be paid for any time that their employer controls, even if the employee is not actually performing work, such as when they attend mandatory training.
Another consideration is how the New York Labor Law’s provision for uniform maintenance pay applies to wearing specific kinds of masks, gloves, or other personal protective gear in the workplace. Anyone who employs a first responder or essential worker is already required to provide such employees with a mask, free of charge.
Other employers may want to do this as well. If the employer will require workers to wear a mask, the employer should pay for it. Simply for purposes of office harmony and morale, having everyone wear the same masks, and having the employer pay for them, helps to ensure that everyone feels safe, and that they are being treated equally.
Is a mask considered a “uniform”? The law requires employers to supply or reimburse employees for required uniforms, as well as pay for their maintenance, i.e., the cost of laundering them. Unless the employer cleans required uniforms themselves, the business must pay an additional weekly amount, between $7.00 and $18.65, in addition to the employee’s regular wages. The amount varies by geographic location of the business, whether in New York City, Long Island and Westchester, or the rest of the state, as well as by the average number of hours an employee works per week. The Labor Law advises that “regular, basic, street clothing, which an employee can wear while not at work, is not a required uniform” that an employer must provide or pay to clean. Thus, if employees already have their own mask that they have been wearing before they returned to work, this may qualify for an exemption to the uniform maintenance requirement. But if businesses want employees to wear specific kinds of protective gear, such as N-95 masks, or anything that cannot be cleaned or must be disposed of after once use, the business must provide it.
In addition, customers and clients who enter a business must wear a mask, pursuant to Executive Order, and businesses will need to enforce this mandate, for the health and safety of their workforce and their other customers.
Employers should also be mindful of how they determine which employees to bring back to avoid incurring a discrimination lawsuit. Avoid only bringing back people within a certain protected category, and do not only exclude people in another protected category. Businesses should apply objective criteria when deciding which employees to bring back, to the extent possible. Of course, this may also depend on an individual employee’s personal needs and preferences.
Businesses with questions about their specific reopening considerations can call Valerie K. Ferrier, Partner and head of MCB’s Labor & Employment Practice Group at (347) 809-0276 or e-mail at email@example.com.
Martin Clearwater & Bell LLP is here to answer your employment questions.
Please contact: Valerie K. Ferrier, head of the Firm’s Labor & Employment Practice Group, at firstname.lastname@example.org or 212-916-0920.