By Valerie K. Ferrier
As New York seems to have flattened the curve of infection, many business owners are starting to consider what it will take to get back to work.
Getting Back to Work
When evaluating whether it is safe to allow employees back into a workplace, businesses may, consistent with the law, ask for a doctor’s note attesting to fitness for duty from anyone who previously experienced symptoms of Covid-19. Similarly, employers may take the temperatures of those returning to work, although not everyone who is positive for Covid-19 will have an elevated temperature. Anyone currently experiencing symptoms should not come to work, and employers may require such people to stay home. Businesses are advised to exercise usual precautions to protect employees’ private health information.
Anecdotal evidence suggests that some employees would prefer to continue to receive unemployment payments, because they are being paid more than they received from their jobs. As such, some businesses will need to hire replacement staff. According to the Equal Employment Opportunity Commission, “An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.”
Anyone who employs essential workers within New York is already required to provide masks at no charge. Other employers may also wish to have employees wear masks and practice social distancing within the workplace. Businesses should also engage in the interactive process with anyone who requests a reasonable accommodation in order to work, as they have in the past. Pandemic-related financial distress is one factor that can be taken into account when determining whether a proposed accommodation would impose an undue burden on the employer.
The federal government recently replenished the funding for loans backed by the Small Business Administration (“SBA”). It also eliminated some previous features of the program, such as granting loans to publicly-traded companies, due to public outcry. However, small businesses will likely continue to have difficulty accessing the government funds if they do not already have significant assets on deposit or an existing loan with a bank. For example, it was recently reported that only 16% of businesses in Brooklyn received any of the loan money. With the funding for SBA loans having been depleted after just two weeks, others stepped forward, including the U.S. Chamber of Commerce and Facebook, both of which offer funding to small businesses.
Commercial and residential evictions have been suspended in New York for three months. But with millions of Americans out of work, most tenants will simply not be able to pay three months of back-rent. The New York State Legislature will consider a bill, sponsored by Deputy Majority Leader Michael Gianaris, to suspend and forgive residential and commercial rent payments for three months, as well as certain mortgage payments. Within the City of New York, tenants of rent-regulated apartments will not have any increases in their rent in the coming year. However, as of this writing, there is no formal relief from what is generally the single biggest expense for any business or household.
Please contact Valerie K. Ferrier, Head of MCB’s Labor & Employment Practice Group, if you have any questions.