Following are highlights as of March 20, 2020, of changing provisions for New York employers surrounding the Coronavirus 19 (COVID-19) pandemic. The Tarantino Law Firm passes them along to our valued clients, hoping that business principals find them instructive and broadly beneficial for promoting public health and safety.
Business Occupancy in New York
Governor Cuomo announced on Friday, March 20, 2020, that he will sign an executive order ordering 100% of the state’s non-essential employees to stay home, effective Sunday, March 22 at 8 pm. Governor Cuomo had just signed an Executive Order on Thursday, March 19, 2020, mandating businesses that require in-office personnel to decrease their in-office workforce by 75%, effective Friday, March 20 at 8 pm. This order exempts essential services. A link to a list of essential services can be found here.
Workplace Safety and OSHA
The General Duty Clause of the Occupational and Safety Health Act requires that all covered employers provide their employees with “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Last week, OSHA released “Guidance on Preparing Workplaces for COVID-19,”, which can be found here.
The guidance outlines detailed suggestions for workplace practices and policies depending on the risk exposure level of your employees. For each level of risk exposure, OSHA details the physical and administrative controls and other practices employers can implement to best manage the risk of exposure and protect their employees.
At a minimum, OSHA recommends that all employers develop an infectious disease preparedness and response plan, and stay informed of the latest guidance to keep the plan up to date. Employees should be encouraged to practice good hygiene practices such as thorough and frequent hand-washing, and covering coughs and sneezes. Sick employees should be strongly encouraged to remain or go home. Employers’ preparation should include appropriate policies to allow remote working or flexible work hours if possible, and prompt identification and isolation of employees who display signs or symptoms of COVID-19. In addition, OSHA advises employers to keep their employees apprised as to the steps being taken to protect them, and to provide information on relevant policies such as sick leave and remote work. For higher levels of exposure risk, OSHA provides more specific guidance on appropriate personal protective equipment, engineering and administrative controls, and safe work practices that can be used to protect at-risk workplaces.
While OSHA’s guidance is not mandatory, it is a valuable resource for employers looking to prepare and best position their workplaces to handle the COVID-19 outbreak. Other possible relevant OSHA standards can be found here.
Medical Inquiries and EEOC Guidance
Employers may ask employees who report to work with symptoms to go home and can require sick employees to remain out of work. The Equal Employment Opportunity Commission (EEOC) gave employers the green light to take employees’ temperatures to try and ward off the spread of the coronavirus in guidance updated March 18. “Generally, measuring an employee’s body temperature is a medical examination,” the EEOC stated. The Americans with Disabilities Act (ADA) prohibits medical examinations unless they are job-related and consistent with business necessity.
However, because the Centers for Disease Control and Prevention (CDC) and state and local health authorities have acknowledged community spread of COVID-19, the respiratory illness caused by the coronavirus, and have issued related precautions, “employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever,” the agency stated. And some people with a fever do not have COVID-19.
Wage and Hour under Fair Labor Standards Act
Employees who are not working typically are not entitled to wages under the Fair Labor Standards Act (FLSA). However, with certain limited exceptions, salaried overtime-exempt employees must be paid their entire salary for any workweek in which they perform any work. Exempt salaried employees are not required to be paid their salary in weeks in which they perform no work, due possibly to an office closure.
There is nothing in the FLSA that prevents a salary reduction by employers due to economic concerns absent an applicable employment agreement/contract, as long as the reduction stays above exempt threshold s set by the NYDOL (not less than $885 per week outside of NYC ).
The FLSA generally applies to hours actually worked. It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked.
For further guidance regarding FLSA wage and hour provisions regarding COVID-19, click here.
Changes to FMLA and NYPFFL
On March 18, 2020, President Trump signed the “Families First Coronavirus Response Act” (H.R. 6201).
New York has also passed an expansion of its Paid Family Medical Leave Law.
As these two laws are very comprehensive, we will provide a separate update on those two laws later today in a separate communication.