On the heels of the federal Families First Coronavirus Response Act signed into law yesterday, New York State has enacted broad legislation extending paid sick leave benefits to employees. The extent of paid sick leave is determined by employer size and revenue, and can be utilized by employees whether they are sick, or absent from work because of a “mandatory or precautionary order of quarantine or isolation” issued by “the state of New York, the department of health, local board of health, or any government entity duly authorized to issue such order due to COVID-19.” All of New York City is currently subject to such an order.
As people everywhere struggle to adjust to the rapid changes caused by the COVID-19 outbreak, the financial impact on businesses and employees has been a primary concern. Employees are facing reduced work hours and layoffs as businesses scale back or close. At the same time, employees are dealing with the reality of a serious health threat to themselves and family members. The scale of disruption to the normal functioning of businesses and to people’s lives is unprecedented.
If you are reading this post, you already know about SARS-CoV-2, the virus which causes coronavirus disease 2019 (“COVID-19”), or, coronavirus. There is no shortage of news to absorb and guidance to implement. Federal, state (CT, MA, NY), and local (Boston, Hartford, New Haven, New York) authorities offer directives and information. News outlets including The Washington Post and The New York Times have continuously updated coronavirus sections, sans paywalls. Johns Hopkins University is mapping coronavirus’s spread, in near real time. Here at Murtha Cullina, we are abiding by a common and useful refrain: “don’t panic, do prepare.”
So, how can you and your employees safely and effectively manage the myriad of challenges coronavirus has begun to present? The CDC has issued Interim Guidance for Businesses and Employers, with common sense and effective steps employers may take, including:
- Encourage sick employees to stay home, and implement flexible policies concerning sick leave and remote work.
- Send home sick employees.
- Provide information and materials for effective personal hygiene: encourage vigorous hand washing, liberal sanitizer use, and proper coughing and sneezing etiquette.
- Clean the office: disinfect surfaces that are regularly touched, like keyboard, doorknobs, coffee makers, bathrooms, etc.
- Take precautions to monitor travel. We recommend checking the CDC website frequently for the most updated travel restrictions and recommendations.
Varied labor and employment laws will be implicated by the response to coronavirus. Such laws include but are not limited to:
- Wage and Hour Laws: Review Department of Labor guidelines concerning the Fair Labor Standards Act and coronavirus. Exempt employees generally must be paid for any week in which they perform work. Non-exempt employees need not be compensated for shifts not worked. Employer paid time off policies, remote work policies, and paid sick leave statutes (where applicable) all impact how employees may work and may be compensated. Make sure your PTO and remote work policies are clearly communicated and evenhandedly applied. Consider extending additional PTO to ensure that employees are given incentive to stay home when necessary.
- Medical Leave Laws: Review Department of Labor guidelines concerning the Family and Medical Leave Act and coronavirus. If your workplace is subject to the federal Family and Medical Leave Act or one of its state law analogues, employees may be entitled to unpaid leave to address their own or a family member’s coronavirus. Review your medical leave policies and processes to ensure orderly and uniform application.
- Americans with Disabilities Act: In response to the 2009 H1N1 outbreak, the Equal Employment Opportunity Commission released guidance concerning ADA compliance and pandemic preparedness. Employers cannot make employee medical inquiries without an objective basis to believe the employee’s “ability to perform essential job functions will be impaired by a medical condition”; or the employee’s medical condition poses a “direct threat.” Information resulting from such inquiries must be kept confidential. And employers must make reasonable accommodations for sick or at-risk employees. Practice transparency and flexibility in employee communications and work arrangements to encourage collective health and safety.
- Discrimination Laws: The CDC has cautioned “do not make determinations of risk based on race or country of origin.” Stigmatizing any group is bad for business and may create legal liability.
- Occupational Safety Health Administration Standards: On March 9, 2020, OSHA published “Guidance on Preparing Workplaces for COVID-19.” If an employee is infected at work, coronavirus must be documented in accordance with existing OSHA regulations. Keep your workplace clean and infected employees at home to prevent occupational exposure to coronavirus.
The global understanding of coronavirus remains fluid. Issues specific to your workplace will certainly arise and change. The Murtha Labor and Employment team is on-call to provide specific guidance, as we navigate coronavirus’s substantial and uncertain impact together.
On January 6, 2020, Governor Ned Lamont signed bipartisan legislation addressing rates of pay for restaurant workers. The Governor vetoed a previous version of the bill which would have applied retroactively and effectively ended the viability of approximately two dozen pending minimum wage lawsuits. The new law does not apply retroactively, allowing the pending minimum wage suits to proceed.
Next month, Connecticut legislators from across the political spectrum are set to formally introduce a bill prohibiting employers from inquiring into a job applicant’s age, birthday, or graduation date, unless necessary for a bona fide employment reason. At an announcement on Thursday, January 16, 2020, a wide ranging group of elected officials and other stakeholders heralded the measure as a protection for older workers facing age discrimination in the labor market. Connecticut has the sixth oldest workforce in the country. A similar bill, H.B. No. 6113, passed the Labor Committee last year, but was never presented for a vote in the House.
For the first time in sixty years, the U.S Department of Labor is substantively revising the regulation that articulates when two people or businesses are “joint employers” of an employee under the Fair Labor Standards Act (FLSA). The final version of Joint Employer Status under the FLSA will be published this Thursday, January 16, and is effective on March 16, 2020. See 29 CFR Part 791. The unpublished version is available here. The revisions are meant to “reduce uncertainty over joint employer status, promote greater uniformity among court decisions, reduce litigation, and encourage innovation in the economy.” Franchise chains, temp agencies, and businesses that outsource their workforces are among those that will benefit from the revised rule.
The Department of Labor announced its return from winter vacation this week by issuing three new opinion letters. Two of the letters address Fair Labor Standards Act (“FLSA”) payment calculation issues; the other deals with the applicability of the Family and Medical Leave Act (“FMLA”) to a special health district.
The holidays arrived early last week for employers and management-side labor attorneys, as the National Labor Relations Board issued a decision approving employer policies that prohibit the discussion of pending workplace investigations. In Apogee Retail LLC d/b/a Unique Thrift Store and Kathy Johnson, Cases 27-CA-191574 and 27-CA-198058, the Board considered two workplace rules: “one requiring employees to ‘maintain confidentiality’ regarding workplace investigations into ‘illegal or unethical behavior’ and the other prohibiting ‘unauthorized discussion’ of investigations or interviews ‘with other team members.’”
This spring, Westchester County extended statutory employment protections for workers facing sickness, caregiving obligations, domestic violence, or human traffic through passage of the Earned Sick Leave Law (the ESLL) and the Safe Time Leave Law (the STLL). Continue Reading Westchester County, New York Enacts Safe Time Leave Law to Complement Earned Sick Leave Law
In 2019, the New York State Legislature championed a host of employment laws that strengthen protections for employees. One of those laws codified new requirements for non-disclosure agreements, which are effective as of October 11, 2019. To ensure enforceability of non-disclosure provisions, employers must account for the following provisions: Continue Reading New York Bars Non-Disclosure Agreements in All Discrimination Case Settlements