Joshua Zuckerberg

Last updated: June 9, 2020

As companies begin to reopen in New York and across the country, employers will face some of the same fundamental issues. To that end, we have prepared a guide for New York employers that we will continue to update as federal, state, and local directives evolve.

1)How do I know if my business may reopen?

a) New York Governor Andrew M. Cuomo has implemented New York Forward, a phased reopening of New York's economy, whereby employers may reopen their business if they are located in a region that has met specific health and safety metrics. The employer's business type must also be listed in the particular reopening phase. There are four stages in Governor Cuomo's Plan, and regions are allowed to enter into each successive stage as they continue to meet the metrics established by the State. Once allowed to reopen, employers must also create a plan to ensure the workplace is safe. Thus, a business' reopening depends on the following:

i) Business Industry: The company must fall within the list of industries covered by the particular reopening phase. To determine whether your business is included in a reopening period, use the New York State Reopen Lookup Tool.

ii) Business Location: The company must be in a region that satisfied the State's requirements. To determine whether your business is in an area that met the State's metrics, use the New York State Regional Unpause Dashboard.

iii) Health and Safety Plan: New York State requires that each employer have a COVID-19 Health and Safety Plan in place. New York State provides a template for the COVID-19 Health and Safety Plan, which is available online: NY Forward Safety Plan Template. The use of this template is not required. However, employers must meet all of the minimum criteria outlined therein.

The State may issue specific guidelines for each type of business listed in each reopening phase. Employers should comply with any applicable industry-specific guidance released by the State. Employers should also include the required elements of the additional guidance into their Safety Plans.

Employers are required to affirm they have met any applicable industry-specific guidance. The affirmation form is available online: Business Affirmation Form.

If there is no industry-specific guidance for the employer's business type and the employer's business is allowed to open, the employer should refer to the State's template for guidance on minimum requirements for reopening and continue to follow any direction from the Department of Health (DOH).

Employers must conspicuously post the completed Safety Plan in the workplace and have it available for inspection by the DOH or local health or safety authorities.

b) Depending on the nature of the employer's business, New York Forward guidance may require that employers follow certain federal guidance (such as directives provided by the Equal Employment Opportunity Commission (EEOC), the Centers for Disease Control and Prevention (CDC), the Environmental Protection Agency (EPA), or the United States Department of Labor's Occupational Safety and Health Administration (OSHA)) in addition to State guidance. Thus, employers should ensure that they are up to date on the latest federal, state, and local advisements.

c) The State allows employees and individuals to file complaints against non-compliant businesses. Therefore, employers who fail to adhere to the State's guidance may face investigations, fines, and potential liability.

d) Employers may consult the New York Forward FAQs for answers to common questions concerning Governor Cuomo's Plan for reopening.

2) What if I cannot comply with the State's guidance? Can I apply for a waiver?

a) Unfortunately, if an employer cannot comply with the State's guidance, the employer cannot reopen. The guidance advises that "due to health and safety concerns, waivers will not be issued." See the New York Forward FAQs at Question No. 7.

3) What if my business is not yet scheduled to reopen, but I need to pick up the mail or retrieve certain documents? Can I send an employee into the office/building?

a) Yes. The State's guidance advises that "[a] single person attending a non-essential closed business temporarily to perform a specific task is permitted so long as they will not be in contact with other people." See the New York Essential Employer FAQs at Question No. 13.

4) Are employers required to provide personal protective equipment (PPE) to employees?

a) Yes, employers must provide employees with an acceptable face covering at no cost to the employee and have an adequate supply of coverings if there is a need for replacements. Whether employers are required to provide additional PPE (i.e., gloves, etc.) depends on the nature of the business and whether it is subject to additional industry-specific/federal guidance.

b) Failing to procure the required PPE will delay reopening, as the New York Forward FAQs at Question No. 9 state: "Your business can only reopen when you are able to fully supply adequate protective equipment and to help protect the health and safety of your workers."

5) Must employers provide PPE to other individuals, such as on-site contractors and visitors, or only to employees?

a) According to the State's guidance, employers must provide on-site contractors with the required PPE. See the New York Forward FAQs at Question No. 20.

b) However, employers need not provide PPE for visitors.

6) What do I do if a visitor comes to the worksite without a face covering?

a) According to the State's guidance, employers may prohibit visitors without face coverings to enter the worksite. If visitors refuse to comply, the employer may (lawfully) require visitors to leave or compel them to do so. See the New York Forward FAQs at Question No. 20.

7) Can I screen employees for symptoms?

a) Yes. In fact, the State's COVID-19 Health and Safety Plan template requires that employers do so. The CDC's most recent guidance concerning symptoms is available online: Symptoms of Coronavirus.

b) Remember, information concerning an employee's symptoms is subject to the Americans with Disabilities Act's confidentiality requirements. You may review guidance from the U.S. Equal Employment Opportunity Commission online (see Question No. B7): Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.

8) Can I have someone take employees' temperatures? Should I do so?

a) Yes, employers may measure employees' temperatures. However, according to the New York Forward guidance, employers are prohibited from maintaining a log of their employees' temperatures. For example, see New York State's DOH guidance for offices, which states that employers may not keep records of temperature data. If an employer seeks to take employees' temperatures, it should be done in accordance with New York Forward guidance. Employers should remember that testing must be administered based on legitimate, nondiscriminatory business needs. As an alternative, employers may require that employees take their temperatures before coming to work and stay home if they have a fever.

b) While employers are prohibited from maintaining a log of their employees' temperatures, employers may keep general information concerning employees' exposure to COVID-19 and COVID-19 related symptoms, such as completed COVID-19 related questionnaires compliant with New York Forward guidance. Employers should keep in mind that guidance is continuously updated and should stay up to date with the latest developments.

c) Note that the employees' medical information is subject to the confidentiality requirements of the Americans with Disabilities Act (ADA), the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL). Generally, such information must be maintained on separate forms and in files separate and apart from the employee's personnel file and may be revealed only in limited circumstances.

d) Before implementing mandatory employee temperature checks, employers should consider that a temperature check may not be the most effective way to detect COVID-19, as some individuals affected by the virus are asymptomatic or fever-free.

e) Employers should keep up with the latest federal, state, and local guidance, which frequently changes.

9) Can I require employees to get vaccinated, if and when a vaccine is available?

a) Generally, no. The EEOC has advised:

i) "An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee's sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII ("more than de minimis cost" to the operation of the employer's business, which is a lower standard than under the ADA)." See the EEOC's guidance at Question No. B13.

b) Instead, consider encouraging employees to get vaccinated.

10) Can I send employees home if they have COVID-19 or exhibit symptoms associated with COVID-19?

a) Yes. New York Forward guidance generally advises that employees with confirmed cases of COVID-19 and those who are symptomatic should be sent home immediately.

b) The CDC's most recent guidance concerning COVID-19 symptoms is available online: Coronavirus Symptoms.

11)  When employees return to work, can I ask them for a doctor's note certifying fitness for duty?

a) Generally, yes, subject to the explanation below:

i) The New York City Commission on Human Rights (NYC CHR) states: "Consistent with employers' need to take reasonable steps to protect the health and safety of their businesses, employers may require employees to provide evidence of their ability to safely return to the workplace after recovering from COVID-19, and to confirm that they are not contagious." The City's guidance may be accessed online: COVID-19 and Human Rights.

b) However, it is unclear whether a New York City employer may request a doctor's note from every employee returning to work, or just those recovering from COVID-19.

c) To date, the State of New York has not published guidance on whether employers may seek a doctor's note from employees returning to work.

d) The EEOC's guidance states that employers may require employees "who have been away from the workplace during a pandemic" to provide a doctor's note certifying fitness for returning to work. See the EEOC's latest ADA guidance and the EEOC's Pandemic Preparedness Guidance.

e) The safest approach is to request a doctor's note from individuals who are on leave because of a confirmed or suspected case of COVID-19, or those who were exposed to a confirmed or suspected case of COVID-19.

12)  As travel becomes more regular, I am concerned that my employees will travel more and increase the workforce's exposure to COVID-19. Does the CDC have any guidance on domestic travel? Are there currently any restrictions?

a) New York has not imposed any travel restrictions.

b) While the CDC's guidance advises limiting travel as much as possible to avoid spreading the coronavirus, the CDC has not imposed any travel restrictions for domestic travel. In fact, the CDC has recognized that "COVID-19 cases and deaths have been reported in all 50 states, and the situation is constantly changing." See the CDC's guidance on domestic travel: Considerations for Travelers—Coronavirus in the US.

c) Given that contamination rates and total positive case counts remain fluid varying from state to state, individuals who wish to travel should consult the state or local health departments to verify any travel restrictions or advisories. This should be done for both the departure and destination points. The CDC provides links to the health departments of all U.S. States and Territories online: State & Territorial Health Department Websites.

d) If you wish, you could provide employees with the CDC's latest guidance on domestic travel and precautionary measures for those who decide to travel.

13)  What do I do if I know or have reason to know that an employee is immunocompromised or has another condition that makes the employee particularly susceptible to COVID-19?

a) Where the underlying medical condition is known (i.e., the employee informed the employer of the condition or the employer has independent knowledge of the same) or the employee requested an accommodation:

i) Employers in NYC must engage in the interactive process with such employees. According to New York City's guidance concerning COVID-19 and the New York City Human Rights Law, "if an employer knows that an employee has a medical condition that might place them at 'higher risk for severe illness' if they get COVID-19, the employer is required to engage the employee in a cooperative dialogue about a potential accommodation, even if the employee has not requested a reasonable accommodation." The City's guidance may be accessed online: COVID-19 and Human Rights.

ii) The New York State Division of Human Rights has not issued specific advice concerning the New York State Human Rights Law's (NYSHRL) application to COVID-19. New York employers outside of NYC may also be required to engage in the interactive process, especially where an employee requests an accommodation. Given the NYSHRL's expansive definition of "disability," the underlying medical conditions the CDC has outlined as "high risk" are likely to trigger the employer's duty to engage in the interactive process. See N.Y. Exec. Law § 292(21); 9 NYCRR § 466.11(f)(3).

iii) Where the employee has not requested accommodation, and the employer has no confirmed knowledge of the condition, but the employer reasonably suspects the employee has an immunocompromised status:

iv) Employers in NYC must also engage in the interactive process where they "should have known" about a disability (for example, when there is diminished productivity at work that the employer reasonably believes is related to a disability), even if the employee has not requested an accommodation. Thus, NYC employers must engage in the interactive process with employees who, based on a reasonable belief, have an underlying medical condition that makes them particularly susceptible to COVID-19. See the City's guidance for more information on lawful engagement in the interactive process:  NYC Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Disability.

v) In this case, the analysis for New York employers outside of NYC is different. Unlike the NYCHRL, an employer's duty to engage in the interactive process under the NYSHRL is triggered by an employer's knowledgeof an employee's disability or where an employee requests an accommodation. Thus, an employer who is subject to the NYSHRL, but not the NYCHRL, is not required to engage in the interactive process unless the employee informs the employer that they have a condition, the employer knows about the condition, or the employee requests an accommodation.

b) Remember that, except where it would cause undue hardship, employers subject to the NYSHRL or the NYCHRL are required to provide reasonable accommodations that allow employees to perform the essential requisites of the job.

c) Where possible, employers may consider allowing employees to telework as a reasonable accommodation. The EEOC has advised that telework is an effective infection-control strategy, and it has been recognized as a reasonable accommodation in the past. See the EEOC's guidance at Question No. B10.

14)  I am concerned that some of my workforce may fall within the categories the CDC has identified as "high risk." However, I do not know and do not have reason to know that any of my employees are "high risk." Can I ask employees who are particularly susceptible to COVID-19 to self-identify?

a) This issue is complex, and employers should proceed with caution.

b) Asking employees whether they have a condition that makes them particularly susceptible to COVID-19 is a disability-related inquiry.

c) While there is some federal guidance suggesting that employers may ask employees to self-identify (see the EEOC's guidance at Question No. B9), New York guidance seems to advise against it. For example, the NYC CHR has recommended that employers engaging in a cooperative dialogue with an employee they suspect has a disability should not ask the employee outright about the disability. Instead, the employer "may ask if there is anything going on that the employer can help with, inform the employee that various types of support are available, including reasonable accommodations, to enable employees to satisfy the essential requisites of the job, and remind them of workplace policies and procedures for requesting a reasonable accommodation." See the NYCCHR's guidance regarding discrimination based on disability: NYC Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Disability

d) Thus, the safest approach is to allow employees as much flexibility as possible to physically come back to work. For example, where possible, an employer may allow employees to continue working from home, whether they are particularly susceptible to COVID-19 or not.

e) Where such flexibility is not an option, employers may consider providing employees with the CDC's latest guidance on "high risk" populations and advise that requests for reasonable accommodations are encouraged and will be granted to the extent possible.

f) The CDC's most recent guidance regarding "high risk" populations may be accessed online: People Who Are at Higher Risk for Severe Illness.

15)  What do I do if an employee, who is not "high risk," refuses to come to work for fear of contracting COVID-19?

a) First, employers may consider speaking with the employee to determine why the employee is refusing to report to work. If the employee is concerned about the employer's COVID-19 related safety measures, the employer may try reassuring the employee by reviewing the protocols and practices it will have in place to ensure a safe working environment.

b) If the employee still refuses to come in, the employer may evaluate whether the employee is entitled to leave.

c) It is unlikely that an employee refusing to report to work based on fear of contracting COVID-19 alone will qualify for sick leave unless the employer has a broad sick leave policy that permits employees to take leave for this reason.

d) An employee will likely not be entitled to leave under the Families First Coronavirus Response Act (FFCRA) unless the employee meets one of the six enumerated reasons for paid leave and is unable to work or telework. For more information, please see our FFCRA article: The Families First Coronavirus Response Act: Key Takeaways for Employers (Updated).

e) Additionally, fear of contracting COVID-19 alone is not a qualifying reason for leave under the Family and Medical Leave Act (FMLA), or New York's Paid Family Leave law or Disability Benefits.

f) It is also unlikely that an employee will qualify for leave under New York's COVID-19 Sick Leave law. To qualify, employees must secure a mandatory or precautionary order of quarantine or isolation for themselves or their minor dependent children, and employees must also be unable to work or telework.

g) An employee is also unlikely to qualify for leave under New York City Earned Safe and Sick Leave Law (ESSLL). While recent guidance from the NYC Department of Consumer and Worker Protection provides that employees may use sick time for COVID-19 related purposes, including quarantine, preventative care, and business/school closures, fear of contracting COVID-19 alone is not a qualifying reason for leave.

h) However, as an alternative, employers may consider providing the employee vacation, personal days, or an unpaid leave of absence.

i) Depending on the circumstances, the employer may be required to engage in cooperative dialogue if it knows or has reason to believe that the employee has a disability covered by the ADA, the NYSHRL, or the NYCHRL.

1) For example, if an employee is suffering from an anxiety disorder, the employee's fear of returning to work may simply be a symptom of that disorder. Accordingly, depending on the applicable law, the employer may be obligated to engage in a cooperative dialogue if it knows or has reason to know that the employee has such a disorder and to provide a reasonable accommodation absent undue hardship.

16)  Can I have returning employees sign waivers concerning COVID-19 related claims?

a) A blanket waiver of COVID-19 claims is not a good idea. Ultimately, it may not absolve the employer from liability (if workers' compensation does not cover COVID-19), and it could cause more harm than good, especially from an employee morale perspective.

b) However, an employee acknowledgment could be useful, both as a way of informing the employee of the inevitable risks of returning to work during the COVID-19 pandemic and that the employer cannot guarantee that the employee will not contract the coronavirus at work. Employers may also consider having employees acknowledge that they have received the employer's COVID-19 Health and Safety Plan and that they are not being asked to waive any statutory rights. Employers may also inform employees that they may report employees who do not follow the employer's COVID-19 Health and Safety Plan to a specified company contact.