Do you have your COVID-specific handbook policies in place? If not, you should! We’re seeing an uptick in legal exposure for businesses who don’t have a written COVID-19 policy. Here’s what’s happening: employee is nervous about returning to work, employee asks employer what they’re doing to keep workers safe, employer doesn’t have a clear policy discussing their safety efforts, and employee refuses to return to work (in large part due to the lack of a clear policy). Then one of three things happens: (1) employer fires the employee for refusing to return; (2) employee feels compelled to quit out of fear for their health; or (3) employee returns under protest. What happens next? In the first two scenarios, you’ll likely see a claim that the employee was fired (or constructively discharged) for either expressing their concern about workplace safety (this is how you spell r-e-t-a-l-i-a-t-i-o-n) or (especially if there’s some underlying health condition) that the employer violated the anti-disability discrimination laws. And, of course, the third scenario carries all of those risks with an extra-helping of low workplace morale. These claims are really happening and they can be expensive to fight. A written COVID-19 policy can help minimize this risk by forcing employers to reexamine the steps they’re taking towards compliance and allowing those steps to be clearly communicated to your team. Best of both worlds. NJ Updates Guidance for Employees on Medical Leave You already know that you can’t retaliate against employees for *checks notes* anything, but let's focus on employees who take some form of COVID-19 leave. New guidance from the Garden State makes clear that, upon return from such leave, employees must be reinstated to the same or equivalent position – no reduction in seniority, status, pay, benefits, or other terms of employment. Impacted employees may file a claim with the NJ Department of Labor or in court, with potential remedies including reinstatement and a $2,500.00 fine for each violation. Please note that there is an exception for situations in which the employee lost the position due to a reduction in force (or layoff) where the employee would have lost the position in any event. As always, it's a good idea to check with your friendly employment counsel before making such decisions. NY Paid Sick Leave Goes Into Effect September 30 Across the river, NY’s new paid sick leave law went into effect yesterday (9/30). The entire state now joins New York and Westchester counties in mandating paid sick leave for employees (and since the state law is broader than the county laws, you NYC and Westchester employers should not skip over this section). Time to update those workplace policies regarding PTO! A summary of the new rule can be found here. More (yup, more) Guidance on Returning to Work Because business owners didn’t already have enough on their plate, the Equal Employment Opportunity Commission (EEOC) just issued some additional guidance on returning to work. Here’s what you need to know:
Yes, you can ask employees returning to the office if they’ve been in contact with anyone with COVID-19 symptoms or a positive diagnosis. But you can’t ask them if their family members have symptoms or a diagnosis. Takeaway: keep it general.
No, you (probably) can’t ask employees who are working remotely this same question.
Working from home is a “reasonable accommodation”, right? It depends! Remember that most employers must provide reasonable accommodations to employees with disabilities (unless it imposes an undue hardship). If your employee has been working productively from home during the pandemic, you need to think about why the continuation of remote work poses an undue hardship (and think even harder as to whether a return to work is worth the potential liability). That said, this is a very nuanced question and employers are not required to automatically grant remote work as a reasonable accommodation just because the employee has been working remotely – productively or otherwise – during the pandemic.
We will continue to keep you updated on new developments and guidance as we learn more. As always, don’t hesitate to contact us if you have questions. We’ve got some answers.
Damien + Brian
ABOUT WEINSTEIN + KLEIN P.C.
Established in 2019, New York City-based Weinstein + Klein is a boutique law firm focused on labor and employment law, business matters, and litigation. Weinstein + Klein works with businesses, individuals, and entrepreneurs to protect their legal interests. In addition to advising clients on employment matters and working with businesses to minimize their risk of litigation, Weinstein + Klein advises small businesses and start-ups on various business law matters. For more information about Weinstein + Klein, please visit www.weinsteinklein.com.