Labor and Employment Update – Reopening in New York State
The good news is that New York State will soon begin to reopen Empire State businesses, albeit by region and consistent with the federal government’s “Opening Up America Again” phased approach.
While on PAUSE, New York State COVID-19 Executive Orders and regulatory guidelines have been issued on a weekly, if not daily, basis. Many sense that the “new normal” of telework, Zoom meetings and homeschooling will plague us for some period of time.
As New York State employers consider their reopening plans, they must account for many challenges and pitfalls, including those outlined below.
New York State Reopening Phases
As of May 15, 2020, reopening of businesses in New York State will occur region-by-region, subject to defined metrics, including COVID-19 statistics, rates of transmission, hospital census and capacity, COVID-19 test and tracing capacities, and adequate PPE supplies. Please note there may be extensions of NYS on PAUSE if reopening efforts result in an increase in COVID-19 cases.
New York State will gradually ease essential business restrictions in four phases:
- Phase 1 – Includes construction, manufacturing and select retail (with curbside pickup).
- Phase 2 – Includes professional services, finance and insurance, retail, administrative support, and real estate/rental leasing.
- Phase 3 – Includes restaurants, food services and hotels.
- Phase 4 – Includes arts, entertainment, recreation and education.
Further, Governor Cuomo has announced that he will require “new” safety precautions that each business must put in place upon reopening, including:
- Adjust workplace hours and shift design as necessary to reduce density in the workplace;
- Enact social distancing protocols;
- Restrict non-essential business travel for employees;
- Require all employees and customers to wear masks if in frequent contact with others;
- Implement strict cleaning and sanitation standards;
- Enact a continuous health screening process for individuals to enter the workplace;
- Continue tracing, tracking and reporting of cases; and
- Develop liability processes.
We anticipate that the reopening phases and new safety standards will be set forth in a series of new or revised Executive Orders. Some of the new safety standards appear to mirror CDC guidelines. Others may impose onerous obligations to trace, track and report COVID-19 cases (which until now have been the responsibility of State and local health authorities), and the development of yet-to-be-defined “liability processes.”
Consequently, New York State employers should not expect to return to “business as usual” for some period of time, and will need to fine-tune business plans as more details are made public.
CDC and OSHA Safety Standards
New York State employers should anticipate that the sanitizing and social distancing guidelines adopted by OSHA, the CDC, and State and local authorities will be in place into the fall of 2020 and possibly beyond. This likely means:
- Ensuring strict compliance with workplace sanitizing guidelines;
- Canceling or postponing training meetings, trade shows, client entertainment functions and other large gatherings;
- Maintaining or implementing ongoing telework opportunities;
- Modifying schedules to decrease the number of employees on site, e.g., alternative telework/on-site workweeks, or flexible or staggered shifts;
- Closing lunch rooms, conference rooms and other spaces where employees could gather;
- Constructing or modifying workspaces, e.g., barriers and/or increased space between workstations or employees and the public;
- Requiring employees to maintain separation of at least 6 feet at all times;
- Wearing of masks where employees cannot maintain at least 6 feet of social distancing, e.g., elevators, corridors, skilled tradespersons working in tandem on installation/repair projects;
- Increasing the use of teleconferences, Zoom and WebEx-type meetings; and
- Exploring and implementing new technology solutions as they are developed.
Employers should anticipate OSHA complaints and possible lawsuits relating to COVID-19 issues. Following all CDC and OSHA guidance and protocols will be helpful to the defense of any such claims.
COVID-19 Detection, Testing and Tracing
New York State employers should familiarize themselves with COVID-19 detection methodologies permitted by CDC and EEOC guidance, and monitor ongoing changes. These include:
- Ask returning employees if they are experiencing or have experienced symptoms of COVID-19, e.g., fever, chills, cough, shortness of breath, sore throat, recent loss of smell or taste, or gastrointestinal problems such as nausea, diarrhea and vomiting.
- Require that employees self-report any COVID-19 symptoms, and leave the workplace if they are ill.
- Take temperatures of employees entering the workplace.
- Require returning employees to submit documentation certifying fitness for duty, i.e., that they do not have COVID-19.
- Depending on availability, employers may require employees to undergo testing for COVID-19, as long as results are kept confidential except for reporting results to local health departments. (Employers should develop a detailed policy before undertaking COVID-19 testing, either for COVID-19 infection or antibodies.)
As noted, forthcoming Executive Orders may impose additional obligations and burdens on New York State employers to trace, track and report COVID-19 cases.
Non-Discrimination and Reasonable Accommodation Duties
The EEOC’s ongoing guidance has confirmed that equal employment opportunity laws, e.g., Title VII of the Civil Rights Act of 1964, the ADA and the ADEA are not suspended by the COVID-19 pandemic. The same holds true for an employer’s broad-ranging obligations under the New York Human Rights Law. In preparing for reopening, employers are reminded that all employment decisions must continue to be made on a non-discriminatory basis and grounded on legitimate business reasons, such as the following:
- If workers are being returned in phases, ensure the return-to-work schedule doesn’t adversely impact protected group employees.
- If business conditions mandate a smaller overall workforce, usual reduction in force analyses should be performed, preferably in consultation with counsel (to preserve confidentiality and privilege).
- Where COVID-19-related reasonable accommodations are required, the interactive process must still be utilized, although the undue hardship standard may be easier to prove if the employer is facing financial exigencies.
- Ask employees with disabilities to request accommodations that they believe they may need when the workplace opens.
- Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing and other measures) in the workplace to prevent transmission of COVID-19.
- As noted, make changes to the work environment such as designating one-way aisles; using plexiglass, tables or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance; or other accommodations that reduce chances of exposure.
- Many employers have purchased software and servers to enable a broader degree of successful telework by employees; thus, objections to telework to accommodate non-COVID-19 conditions may be undercut.
- Maintain confidentiality of medical inquiries related to COVID-19, e.g., documentation of employee symptoms, temperatures and test results, and file them separately from employee personnel files.
- Although EEOC guidance confirms that employers may require employees to wear PPE and observe infection control practices, employers nonetheless may need to explore possible modification of COVID-19 protocols as a reasonable accommodation, and consider potential undue hardship of any proposed variances.
As many employers remain in the midst of their partial or across-the-board remote work status, this is an excellent time to review and upgrade employee communications. Here are a few ideas and best practices:
- Transition your COVID-19 crisis team to a “reopening” team.
- Employee anxiety is likely to increase with the passage of time. Thus, provide regular updates to your employees during the COVID-19 closure and reopening process.
- Draft and transmit your reopening plan to employees, including required safety practices (social distancing, mask wearing, etc.).
- Anticipate and address any inaccurate rumors concerning your business. Consider regular state-of-your-business updates (to the extent confidentiality permits).
- Consider a hotline (Human Resources Department or 800 number) to receive confidential reopening questions, including reasonable accommodation and mental health issues.
- Caution employees that your reopening plan is subject to State and local government orders and guidance, and may not be a straight line. Patience and perseverance will be critical.
New York State employers should anticipate possible claims from current and former employees, in particular for:
- Alleged wage and hour violations (stemming from remote work assignments);
- COVID-19-related paid leave statutes;
- OSHA investigations and workplace safety lawsuits stemming from alleged COVID-19 exposure;
- Discrimination charges and lawsuits arising from furlough and layoff decisions;
- WARN Act lawsuits related to layoffs and closure decisions; and
- ADA and New York Human Rights Law claims relating to reasonable accommodation and disability issues.
Phillips Lytle recommends added caution in approaching each of these potential risks. Thus, this is a time to implement or continue best human resources and safety practices. The firm is experienced in providing litigation avoidance advice and in defending any of these claims or lawsuits.
Reopening New York State businesses presents numerous legal challenges. Phillips Lytle recommends that employers prepare and implement reopening plans anticipating the issues outlined above, and closely follow additional developments – in particular, new or revised Executive Orders from New York State, CDC and EEOC guidance, and pronouncements from county and municipal departments of health.