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New York Employment Law in the Age of COVID-19

man wearing face mask for health and safetyCOVID-19 is changing employment law

Over the last two months, the COVID-19 pandemic has tremendously impacted life as we know it. In particular, the pandemic has caused economic uncertainty and has forced state governments to issue stay-at-home orders, forcing businesses to furlough and/or lay off millions of employees.

However, employees that have been laid off may have a claim if that employer’s layoff policy is applied in a discriminatory manner. For example, if an employer terminates all workers over the age of forty, or lays off only African-American employees, the pandemic may be only a pretextual reason to cover up the employer’s discriminatory intent behind that decision.

Furthermore, an employer cannot discriminate against you if you have contracted, or if your employer or you suspect that you have contracted, COVID-19. In New York, depending on the size of your employer or whether your employer is public or private, you are most likely entitled to leave time if you are diagnosed with COVID-19. Your job is also protected if you take leave as a result of COVID-19.

Needless to say, this is a rapidly changing situation and both state and federal governments are going to have to make adjustments to the law as the pandemic goes on.

New Guidelines Issued by EEOC in Response to COVID-19 Pandemic

The Equal Employment Opportunity Commission (EEOC) recently unveiled new guidelines regarding federal anti-discrimination laws related to the COVID-19 pandemic.

The guidelines address questions the organization has received about issues with the Americans with Disabilities Act (ADA), the Genetic Information Non-discrimination Act (GINA), and Title VII and how COVID-19 affects existing laws.

Here’s what you should know about the updated guidelines:

Workplace Conduct Rules Have Changed

Employees in workplaces that have remained open during the pandemic or that plan to re-open soon are subject to health screenings.

For example, employers can ask employees if they have COVID-19, if they’ve been tested for COVID-19, or if they are experiencing any symptoms of COVID-19. Employers can also conduct temperature checks.

If an employee refuses to answer any questions or to submit to a temperature check, employers are permitted to refuse entry into the workplace. Health screenings must be consistent among all employees unless an employer has a reason to single out certain employees.

In addition to the health screenings, employers can also inquire as to whether or not an employee has been exposed to someone else with COVID-19 or COVID-19 symptoms. Questions about exposure cannot be limited to inquiries about family members because doing so might violate the GINA.

If and when an employer determines that an employee is potentially infected or could pose a risk to others in the workplace, they are required to act according to CDC guidelines. They must do everything possible to keep the specific employee’s identification confidential except on a needed-to-know basis.

Teleworking Arrangements

Many employers with the ability to do so have chosen to let employees work remotely. As a matter of fact, doing so was the recommendation of many government and healthcare officials.

It should be noted that health screening guidelines are different for teleworking employees. Employers cannot ask teleworking employees about COVID-19 symptoms or COVID-19 testing or exposure.

There are also limits regarding teleworking requirements. For instance, those employers that decided to implement teleworking in response to the virus but that don’t normally allow it are not required to continue granting teleworking accommodations to employees with disabilities who want to continue teleworking once the COVID-19 risk has passed.

ADA and COVID-19

There has been no official determination made yet as to whether COVID-19 is legally considered a disability under the ADA. However, it has been determined that employees with higher risks for severe illness related to COVID-19 are entitled to request reasonable accommodations.

Employers are asked to be “creative and flexible” in their attempts to accommodate employees. Employers are permitted to request verification from any employee who claims to be a higher risk, but if the employee is unable to provide that verification promptly due to the uncertainty of access to their doctor, employers are asked to provide the accommodations temporarily while awaiting the information.

Employers are not required to grant reasonable accommodations to employees with family members who are at risk. For example, an employer would not need to accommodate an employee concerned about exposure because he or she lives at home with an elderly relative.

Dealing with COVID-19 Challenges in the Workplace

COVID-19 and the various issues that have arisen because of it have made the workplace an especially difficult environment to navigate. Things are constantly changing and there is limited clear-cut guidance regarding how employers and employees should deal with these issues.

To learn more about how the EEOC is dealing with COVID-19 challenges, visit EEOC.gov.

If you have questions about something your employer has done in response to the COVID-19 pandemic, workplace discrimination because of COVID-19, or you believe you are entitled to something that your employer has denied, contact Borrelli & Associates, P.L.L.C. to schedule a free consultation.

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