Can New York Employers Force an Employee to Either Remain at Home or Leave Their Workplace Over COVID-19 Concerns?

As New York moves into Phase 3 of its reopening, many individuals who have been working remotely are beginning to return to their places of employment in an effort to get the economy back on its feet. However, the return of employees to work has caused anxiety both for workers potentially facing COVID-19 exposure and for employers trying to understand what they are permitted to do in light of protecting themselves from liability and protecting other employees during the pandemic. One concern for employers centers around whether they are legally permitted to either require an employee to remain at home and away from their place or employment or else leave the workplace due to COVID-19 concerns. 

COVID-19 Exposure and Symptoms

The CDC guidelines currently recommend any employee displaying COVID-19 symptoms should not remain at work, so an employer may properly send a worker home if they begin to show any characteristics of infection. 

Employers may also require an employee to remain at home if someone they have been in close contact with is either COVID-19 positive or displaying symptoms of the virus. In this case, it’s proper to require the employee to quarantine at home for the CDC recommended:

  • 14 days after their last contact with the sick person, or
  • 14 days after someone sick in their household meets CDC guidelines for ending their period of home quarantine.

Travel Concerns

Employers may also properly require an employee to refrain from coming to work if they’ve travelled somewhere that public health officials recommend a quarantine upon return for a specific period of time. Employers may also ask an employee if they have recently returned from any such location.

Immunocompromised and Other Susceptible Employees

However, employers are prohibited from requiring that one of their employees either change job duties or come to work if they have a condition, quality, or disability identified by the CDC as putting them at an elevated risk for serious or life-threatening illness if they contract COVID-19. There would need to be an assessment to see if a reasonable accommodation – such as telework – could be made to mitigate the elevated risk to the employee, as well as an analysis of any direct threat to see if the employee’s health is endangered by their presence in the workplace.

New York Employment Lawyer

In these unprecedented times, employers and employees alike are struggling to understand their rights, obligations, and how to safely begin returning to a new normal. The fact the pandemic is a case of first impressions makes keeping up with new legal developments, executive orders, and regulations burdensome and confusing, but to avoid costly mistakes on both sides it’s critical to stay current and understand the rules. To make sure you stay on the right side of developing issues related to work, 

contact the experienced employment lawyers at MOWK Law to have your questions answered. We’re here to explain how the law applies to your situation and look out for your best interests. Contact us today to learn more.  

playground with double slide

Can New York Employees Receive Federal Pandemic Unemployment Assistance If They are Permitted to Work from Home but Need to Care for Children Instead?

The COVID-19 pandemic has presented many challenges for individuals nationwide– this is especially true for workers lucky enough to still be employed but dealing with children that are not in school and cannot go to outside childcare. In some circumstances, workers may be presented the opportunity to work remotely but due to a working spouse and the needs of their children are unable to continue working even at home. This can create anxiety about whether these individuals qualify for federal pandemic unemployment insurance (PUA). The federal government has addressed this situation generally, and in some cases New York workers may qualify for these important financial benefits. 

CARES Act Self-Certification

Under Section 2102(a)(3)(ii)(I)(dd) of the federal CARES Act, an individual that is a child’s primary caregiver may qualify for PUA benefits if they can self-certify a need for their child to be in school in order to permit them to work. The child must be staying home as a direct result of a coronavirus-related school closure. 

Who Is a Primary Caregiver Under the CARES Act?

Primary caregivers are defined as individual workers whose need to care for a child makes it impossible to perform usual work duties from home because of the level of constant attention the child requires. This means it’s likely an individual wouldn’t qualify for PUA benefits if they can still work remotely because they have an older child at home who doesn’t require the constant attention as a small child.

What Happens When the School Year Ends?

Unfortunately, the PUA benefits under the CARES Act only extend to children home due to a forced school closure resulting from COVID-19. This means that once the date passes when a school year should originally have ended, a primary caregiver won’t qualify for PUA unless they can show other circumstances which qualify them to receive these benefits – they are expected instead to rely on their usual summer childcare arrangements. For example, they may be able to qualify if their usual summer childcare facility has been forced to closed because of COVID-19. 

New York Employment Lawyer

During the coronavirus pandemic, New York employees are not only facing the stress of avoiding infection and continuing to make ends meet, they are also dealing with the challenge of balancing childcare when schools and daycares are shut to prevent virus spread. To learn more about whether you may qualify for financial assistance as a direct result of the childcare needs you face, contact the experienced employment lawyers at MOWK Law with your questions. We can evaluate your unique situation, provide guidance, and work to help you secure the most financial assistance possible to help you deal with these challenging times and make ends meet. Contact us today with your questions and see how we can improve your situation. 

Are Healthcare Professionals in New York Immune from Civil and Criminal Liability?

For people who are employed in most capacities in the health care industry in New York, which has been hit hard by the coronavirus pandemic, many have found themselves overwhelmed by the number of patients they are treating and struggle to meet all of their needs. To give some medical professionals a break during these trying times, Governor Andrew Cuomo signed a new act into law extending many more protections to these individuals, as well as healthcare facilities, from civil and criminal liability. Here is an overview of the new protections. 

Emergency or Disaster Treatment Protection Act

The Emergency or Disaster Treatment Protection Act (EDTPA) recognizes the strain on the healthcare system imposed by treating all patients as positive for COVID-19 until it has been proven otherwise. The EDTPA’s purpose is to encourage healthcare professionals to act in good faith and use their best professional judgment by protecting these individuals from liability due to the overwhelmed system and innocent human error. 

Protections Under the Act

The EDTPA grants civil and criminal immunity to almost every healthcare worker if they act in good faith and in some way are involved in the COVID-19 pandemic response. The law will remain in effect until the state of emergency in New York ends. 

Immunity Protections

The EDTPA gives qualified civil and criminal immunity claims if:

  1. The healthcare professional was providing or arranging for healthcare services following any COVID-19 emergency rule or as provided by law, and
  2. Either an alleged omission or negligence takes place when:
    1. Arranging for healthcare treatment or services, or
    2. Deciding, per New York’s directives, on the response to be taken to the outbreak, and
  3. The professional acts in good faith, and
  4. There was no willful, intentional act or any action constituting gross negligence, reckless misconduct, intentional infliction of harm, or criminal misconduct. 

Which New York Healthcare Professionals are Immune?

Under the new law, immunity is granted to many professionals whether their services are rendered in the capacity of an employee, volunteer, independent contractor, or agent of another facility or healthcare provider. The EDTPA immunity extends to:

  • Physicians
  • Physician assistants
  • Nurses and Nurse practitioners 
  • Nurse attendants or Certified nursing aides (also those participating in certified training programs)
  • Registered special assistants
  • Psychologists
  • Pharmacists
  • Midwives
  • Mental health practitioners including psychoanalysts, licensed mental health counselors, and marriage and family counselors
  • Certified EMTs
  • Social workers
  • Clinical laboratory technicians
  • Respiratory therapists and technicians
  • Home care services workers
  • Healthcare workers giving services per the COVID-19 emergency rule (this includes those providers brought out of retirement or licensed in another state who are working in New York due to the state of emergency)
  • Healthcare facility administrators, supervisors, executives, trustees, board members, and any others who direct, supervise, or manage a facility or serve in any of those roles. 

New York Employment Lawyer

Drastic times call for drastic measures, so New York has stepped in and provided extra protections for those on the front line when judgment calls must be made, and gray areas exist. However, for many professionals these rules and guidelines may not be clear. To get guidance about whether the EDTPA applies to you, how to operate within its guidelines, and what protections apply to you, contact the experienced employment lawyers at MOWK Law. We can help explain the act in greater detail and protect your best interests, so contact us today with your questions. 

Financial Assistance Available in New York if You Lost Your Job During COVID-19

As a result of COVID-19, unemployment has reached levels approaching the Great Depression as businesses hemorrhage money and remain largely shuttered under gradual reopening plans in an attempt to control the spread of the virus. Large numbers of New Yorkers find themselves out of work and wondering what programs they qualify for in order to make ends meet. Both the federal government and New York State have programs in place designed to aid qualified individuals until they and the economy can get up and running once again. 

Unemployment Benefits

New York State offers Unemployment Insurance (UI) Benefits for any workers that have, through no fault of their own lost work. This includes employees who were laid off due to coronavirus issues. However, any worker who is employed and able to work remotely or has been placed on paid leave do not qualify. It should also be known that UI benefits are only available to immigrants who are able to provide either a valid work authorization or Social Security number. 

Usually, New York statutorily requires applicants for UI benefits to wait 7 days from the beginning of their unemployment to apply. However, in consideration of the unemployment crisis that period has been waived and benefits are immediately available. New York is also trying to eliminate delays in the ability to apply either online or through the Telephone Claim Center. 

Federal Benefits for Unemployed New York Residents

CARES Act

The federal government has also enacted programs to both create and supplement benefits available through New York State. The federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act) expands protections given by New York’s UI system significantly. CARES Act supplements an extra $600 to the weekly UI earnings of a claimant. It also extends the time period benefits may be received from 26 weeks to 39 weeks. 

PUA Program

The Pandemic Unemployment Assistant (PUA) program was created by the CARES Act. It expands benefit eligibility to a number of different workers that would usually be excluded from UI benefits such as:

  • Independent contractors
  • Freelancers
  • Gig economy workers

To be eligible for PUA benefits the worker must have lost their job for a reason that is directly related to the pandemic or may have been forced to quit because of COVID-19.

New York Employment Lawyer

New Yorkers unemployed as a result of the pandemic may be in dire need of financial assistance from the government to survive and pay bills until they are able to return to work. Though new programs have been put in place to help, it can be unclear to some people whether they are entitled to benefits and how to go about applying for them.  For help understanding developments and the application processes related to state UI benefits and federal benefits, contact the experienced employment lawyers at MOWK Law. Contact us today for help with your questions and to ensure you get the maximum benefits to which you are entitled.  

Can New York Employees Refuse to Work Over Fear of Covid-19 Exposure?

Amid the coronavirus outbreak, people in New York are sheltering in place and everyone but non-essential employees have been told to stay home or work from home. However, for employees whose jobs still require them to leave the house for work the fear of infection may understandably seem very real and they may wonder if they can refuse to work over concerns they may be exposed to Covid-19. This concern will become even more prevalent as the country slowly opens up.

OSHA’s Right to Refuse to Work

Under the Occupational Safety and Health Act (OSHA), Section 13(a) permits employees to refuse to work only if they believe that they are in imminent danger. This is defined as any practices or conditions in a workplace where a danger exists that may be reasonably expected to cause serious physical harm or death either immediately or before the imminent threat of serious physical harm or death can be eliminated. This includes the reasonable expectation a toxic substance or health hazard exists and an employee’s exposure to them will shorten life or substantially reduce their mental or physical efficiency.

These situations arise in very limited circumstances – requiring work with Covid-19 positive patients in a hospital without proper personal protective equipment, for example. Employers should seek legal guidance to determine if an imminent danger exists prior to deciding whether employees may be entitled to refuse to perform work. 

National Labor Relations Act (NLRA) Employee Protections

Section 7 of the NLRA grants employees in both union and non-union environments protections when they perform protected, concerted activities for mutual protections or aid. This includes situations where 2 or more employee take action together to better their work conditions or acts of an employee expressly conducted for their coworkers’ benefits. The National Labor Relations Board has given some additional guidance on its website, saying a concerted refusal to work in unsafe conditions can meet the threshold bestowing protections from discharge or discipline for employees engaging in these activities. 

New York Employment LawyerIn uncertain times, some New York employees fortunate enough to still have their jobs are finding themselves in situations where they are faced with health risks while performing their work. At the same time, employers whose businesses are open or reopening are faced with the possibility employees may refuse to work. To get guidance about when it may or may not be protected behavior for a refusal of work may occur, contact the experienced employment lawyers at MOWK Law. We know how to help employers and employee alike avoid costly legal missteps and have years of experience looking out for the best interests of people like you, so contact us today with your questions.

Job-Related Rights

What Are My Job-Related Rights if I Contract Coronavirus in New York?

The highly contagious nature of Covid-19 and the large number of essential workers in New York City raises the issue of what protections employees have if they call in sick or are required to quarantine or self-isolate. The large number of state and federal laws can be confusing, so here are the current protections and rights for New York workers who contract coronavirus in this pandemic.

New York Laws in Place to Protect Workers

Employees who contract Covid-19 should call in sick and avoid going into work to limit exposing others to the virus. You cannot be fired for calling in sick in this case if you are self-isolating or in quarantine due to an order originating from:

  • New York State
  • The Department of Health
  • Any governmental agency

The protection against termination will exist as long as the order exists.

  • The Family Medical Leave Act protects eligible employees unable to work because of a serious health condition
  • If you have any underlying condition or disability that makes you more vulnerable to catching coronavirus, you have protections under the Americans with Disability Act
  • The Families First Coronavirus Response Act makes it illegal to discriminate against, terminate, or otherwise discipline employees who try to take their legally entitled leave.

Remedies for Unfair Treatment at Work Due to Coronavirus

If you are being treated unfairly at work as a result of contracting Covid-19, there are options you can pursue to seek relief. Depending on your situation, an attorney can advise you on the benefit of remedies such as:

  • Filing a complaint with the Equal Employment Opportunity Commission
  • Filing a complaint with the NYC Commission on Human Rights
  • Filing a compliant with the New York State’s Office of the Attorney General
  • Filing a complaint with New York State’s Division of Human Rights

Rights to a Reasonable Accommodation

If an employee needs an accommodation at work due to Coronavirus treatment or recovery, employers have a legal obligation to reasonably accommodate a short or long-term disability if accommodations are needed for an employee to perform their job. This may include offering the employee the opportunity to work remotely or changing their work hours.

New York Employment Lawyer

In uncertain times, some New York employees risk contracting Covid-19 as they continue to go to work and face exposure from coworkers or customers who may have the virus. Those who do contract the virus may face stigmatization due to fear of the virus, but they should be aware of their right to make sure they do not face negative consequences at work or lose their job. To get guidance and learn more about protections available for coronavirus-positive employees and an employer’s legal obligations, contact the experienced employment lawyers at MOWK Law. We know how to help employers and employees alike avoid costly legal missteps and have years of experience looking out for the best interests of all our clients. Contact us today with your questions and to get started.

Minimum Wage

Who Isn’t Covered By New York’s Minimum Wage Requirements?

As of January 1, 2020, New York’s laws on minimum wage changed for many employers and employees. According to the New York Department of Labor, this is part of an annual increase that will continue, ending December 31, 2020 with the minimum wage statewide set at $15 per hour.

Though there are different hourly rates for fast food industry workers and employees receiving tips, the current minimum wage for hourly workers is $15 per hour in New York City, $13 per hour in Nassau, Suffolk, and Westchester counties, and $11.80 per hour elsewhere in the state. Most people are covered by minimum wage requirements in New York, but there are some important exceptions many employers may not be aware of – and risking potential fines and penalties for improper classification.

Exemptions to New York’s Minimum Wage

New York’s labor laws do not consider independent contractors or people in business for themselves to be employees, so the minimum wage laws do not apply to these individuals.

When it comes to actual employees, minimum wage does not apply to:

  • Professionals
  • Outside salespeople
  • Executives and administrators that earn more than 75 times the current minimum wage rate
  • Taxi drivers
  • Most government employees (some non-teaching employees are covered, however)
  • Ministers and other members of religious orders
  • Part-time babysitters
  • Volunteers, learners, apprentices, and any students working in non-profit institutions
  • Students obtaining vocational experience

If an employee doesn’t fall into one of these exempt categories, it is illegal to pay employees below the wage rate.

New York Wage Posting Requirements

All private New York employers must provide all employees with a pay notice in compliance with the Wage Theft Prevention Act. The notice must include:

  • Pay rate and any applicable overtime rate
  • When pay day occurs
  • How the employee receives pay (hourly, daily, weekly, etc.)
  • The employer’s Doing Business As name
  • Contact information for the employer
  • Any specific allowances applied towards minimum wage such as tips or meals

New York Employment Lawyer

New York employers are bound to a staggering number of laws, requirements, and restrictions when it comes to establishing and maintaining a relationship with their employees. All these rules can be a major source of confusion for employers to know what mandates apply to them. To ensure you stay on the right side of the law and avoid costly fines and penalties for improper payment of employees and other issues, contact the experienced employment lawyers at MOWK Law. We know how to help employers avoid costly legal pitfalls and have years of experience looking out for the best interests of people like you, so contact us today with your questions.

When Can Someone Sue for Wrongful Termination in New York?

Hirings and firings are normal occurrences in the course of doing business, but sometimes a New York employer’s actions when terminating an employee violates a federal, state, or city law and leaves them open to liability should their former employee file a lawsuit. There are a number of protections afforded to employees under federal, New York state, and New York City laws – violating any of them can give an employee a claim for wrongful termination.

At-Will Employment Standard

In a majority of cases, New York employers can terminate an employee for any reason or no reason. New York is an “at-will” employment state, meaning the business relationship between an employer and employee can be terminated by either party on any basis. A termination can be lawful and still come across as unethical or unfair. However, there are some key exceptions to this general rule that could give rise to either wrongful termination claims or another type of lawsuit.

What Employer Conduct Can Give Rise to Liability?

Discrimination

Employers are prohibited from firing employees of a protected class for any discriminatory reason by federal, state, and city law in New York City. An employee may not be discriminated against or terminated because of their:

  • Race
  • National Origin
  • Religion
  • Age
  • Gender
  • Sexual Orientation
  • Pregnancy
  • Disability.

An employee who complains of discrimination and is then fired may have an additional claim for wrongful termination and possible retaliation.

Sexual Harassment

Another “at-will” exception is terminating an employee after they are victims of or report sexual harassment in the workplace. Sexual harassment covers a wide array of behaviors and situations, from inappropriate comments, joking, or touching, to the request for sexual favors, to the termination of an employee for ending a consensual sexual relationship with their coworker or their supervisor. New York State and New York City have Human Rights Laws in place that prohibit any type of sexual discrimination, sexual harassment, or retaliatory behavior for reporting this conduct. If an employee was sexually harassed and fired for complaining about it, a claim for wrongful termination may exist.

Whistleblowing

Both federal and New York law have “whistleblower” provisions where, in some situations, an employee is authorized to report illegal activity at their place of employment to the appropriate authorities. The whistleblower laws shield the reporting employee from retaliation by their employer, up to and including termination, for alerting authorities to corruption or other wrongful conduct by their employer.

New York Employment Lawyer

Employers in New York benefit from the state’s “at-will” status, as they have a great deal of freedom to run their businesses and handle personnel decisions as they see fit. However, it’s important to know the boundaries you may not cross as an employer without subjecting yourself to legal and financial liability. To make sure you comply with the current laws when making personnel decisions, talking with the experienced employment lawyers at MOWK Law beforehand can save you time, money, and legal headaches. Contact us today with your questions and let us help you stay on the right side of the law.

Best Interview Practices

What Are the Best Interview Practices for New York City Employers?

Interviewing candidates for a position in your company is a necessity for most employers in New York City, but can quickly turn into a legal minefield by asking the wrong questions or discussing the wrong topics. To avoid potential liability issues, there are some basic rules employers should know about during the application process and when conducting interviews.

Legal and Illegal Questions

Employers may ask questions regarding a candidate’s resume, education, and relevant topics related to the job. For example, it is legal to ask if an applicant:

  • If they are 18 years of age or older;
  • Can perform specific tasks in a reasonable manner;
  • Has commitments that preclude them from meeting job schedules;
  • Are a citizen of the United States, have the legal right to remain permanently, or are eligible to work during a specific period;
  • Has served in the military, and, if so, has received a dishonorable discharge; and
  • Has a valid drivers license (if it is necessary for the position).

However, many broad categories of inquiries are unlawful. For employers with four or more employees, application forms and interviews may not ask questions expressing limitation or specification regarding:

  • Age (including inquiries designed to discover age such as “What year did you graduate?”);
  • Race;
  • Creed;
  • Color;
  • National origin;
  • Military status;
  • Sex (including gender identity and transgender);
  • Sexual orientation;
  • Disability;
  • Marital status (including maiden name of a married woman);
  • Predisposing genetic characteristics; or
  • Domestic violence victim status.

Criminal History                    

The New York State Division of Human Rights states that an employer may not use an application form or make any inquiry about certain arrests and criminal convictions an employee may have received. Some restrictions include questions regarding:

  • Youthful offender convictions;
  • A conviction sealed by the court; and
  • An arrest that is not pending and did not result in conviction.

Under New York law, private employers with more than 10 employees and all public employers are also prohibited from discriminating against an applicant based on criminal convictions unless a “direct relationship” exists between the specific job or opportunity at issue and the criminal offense. The nature of the conduct must have a direct bearing on the applicant’s fitness or their ability to perform one or more responsibilities or duties necessarily related to the job.

Producing Documents

Though an employer may verify information a candidate provides and ask for documents verifying their identity and right to work in the United States when they accept a position and begin work such as a passport or government ID and Social Security Card), there are unlawful inquiries that must not be made. Employers may not:

  • Require production of naturalization papers, a birth certificate, or baptismal records;
  • Require or offer applicants an option to affix a photo to their employment form any time prior to hiring;
  • Require production of a driver’s license or
  • Require names or identifying information of any family not employed at the company or an emergency contact.

New York Employment Lawyer

Increasing and ever-changing employment regulations make it more challenging for employers to lawfully manage a workplace and comply with all state and federal laws. To comply with proper hiring procedures, consulting the experienced employment lawyers at MOWK Law for preventative measures can save time, money, and countless legal headaches. Contact us today with your questions and let us help you stay on the right side of the law.

Can My Employer Enforce a Non-compete Agreement in New York City?

What Should I Include in a Non-Compete Agreement for Employees in New York City?

New York City is a concrete jungle, and competition in the city is fierce. There are multiple vendors for almost every good and providers for almost every service imaginable within a few blocks of one another, so it is no surprise employers may worry their employees will leave for greener pastures at a competitor’s business with little or no notice. To prevent this, many employers require onboarding employees sign a restrictive covenant known as a non-compete agreement as part of their employment agreement when they begin a position at a company – especially if an employee will acquire a special skill, training, or knowledge during the course of employment. For employers, it is important to know what they can include in non-compete clauses and the what they mean for employers and employees.

Designating Competitors for Purposes of Non-Compete Agreements

When drawing up a non-compete agreement, there is nothing concrete limiting the scope an employer may choose when they are limiting the businesses and competition for whom an employee may later work. However, depending on the nature of your business, former employees may have few or no options if you are a niche industry or they have a very specific set of skills developed from their position at your company. Additionally, some former employees may not see certain companies as competitors even if you do – so to avoid uncertainty it can be helpful to include language listing specific skills, job duties, or companies you consider competitors in the non-compete clause.

Reasonableness

In New York, non-compete agreements are vague in two very important areas – they are expected to last only a reasonable period of time and be applicable only within a reasonable distance from the location of your business. These reasonableness standards may seem innocuous on their face, but depending upon the structure of your particular non-compete clause your language can have serious consequences for employees looking to leave their your company and may also impact whether your restrictive covenant would be found reasonable if it faced legal challenges in the future.

Potential Employee Considerations

Employers should consider the language and provisions of their non-compete agreements carefully, because length of time as well as geographic area can have a significant impact not only on employees currently at your company, but on you as the employer when recruiting quality candidates to join your business. A non-compete agreement that lasts for a significant period of time and covers a large amount of territory could greatly affect someone’s ability to find a job for a long time in a small geographic area like New York City – a 20-mile geographic restriction could preclude an employee from hundreds or even thousands of future opportunities for years. Severe restrictions could cause you to lose excellent candidates for an open position if potential employees believe working for you would negatively affect their future career path. New York also encourages

New York Employment Law Attorneys

New York encourages job seekers to closely scrutinize all non-competes before signing them and agreeing to work, so consulting with an experienced New York employment attorney could help you find the right balance with your non-compete agreement to avoid losing valuable candidates while also protecting your business interests. At MOWK Law, we have the employment law experience you want writing or reviewing these important workplace documents. Give us a call today to learn how we can help.