An Employees Guide To Coronavirus and the Workplace

This is not intended to be legal advice and is a summary of FAQ based on the most recent laws and executives orders available as of 4/2/20.

WORKING FROM HOME

Q: Can you be fired for working from home during the Coronavirus pandemic?

A: As of March 22, 2020, the Governor of New York has ordered non-essential business employees not to go into work. Therefore, you cannot be fired for working from home if you work for a non-essential business.

If you work for an essential business but are not deemed an “essential employee” then you do not have to go into work and can telecommute and work from home.

If you work for an essential business and are deemed an “essential employee” (which means that you are needed to provide the products and services that are essential) then you cannot work from home and your employer may have cause to fire you if you choose to do so and/or if you cannot fulfill your job from home. Businesses in the following categories are considered “essential” in the state of New York:

Health Care Operations
Infrastructure
Manufacturing
Retail
Services
News Media
Financial Institutions
Providers of Basic Necessities to Economically Disadvantaged Populations
Construction
Defense
Services Necessary to Maintain the Safety, Sanitation, and Essential Operations of Residences or other Businesses
Vendors that Provide Essential Services or Products, including Logistics and Technology Support, Child Care, and Services

The full list is provided here: https://esd.ny.gov/guidance-executive-order-2026

If you are not sick, are considered an “essential employee,” work for an essential business and have an underlying health condition which makes you more susceptible to contracting Coronavirus, you may be allowed to work from home if your work can reasonably be done from home under the circumstances. (American with Disabilities Act).

Q: Can I still be paid if my employer requires me to work from home?

A: Yes. If you are a salaried employee and you work any portion of the week you must be paid your regularly weekly pay. Hourly employees who work from home are entitled to be paid for any of their hours worked, including overtime hours.

Q: I am under a quarantine or self-isolation at home but am not sick and am able to work remotely. Am I entitled to any paid leave?

A: No, rights to paid leave benefits only apply if you are exhibiting symptoms of or have been diagnosed with Coronavirus.

Q: I am under quarantine due to having recently traveled for personal reasons to a country that was labeled high risk for Coronavirus by the CDC. Am I eligible for paid sick leave?

A: You cannot be fired for being quarantined if you are unable to do your job, but you are also not eligible for any paid leave benefits if you are not sick. You would be able to use any sick time that you have through your employer during your absence.

Q: If I’m able to work remotely, am showing no signs of symptoms or am not yet diagnosed with Coronavirus can I be fired if I don’t work?

A: Yes, you can be fired and are not protected from losing your job under the current laws if you are able to work remotely and are not showing signs of symptoms and/or haven’t been diagnosed and do not work.

Q: Can my boss require me to work from home even though I would prefer not to?

A: Yes. Employers have the right to set the terms and conditions of employment. This includes requiring you to work from home even though it is not your preference, as long as they are complying with the law.

HEATLTH AND SAFETY QUESTIONS

Q: Can you refuse to work if you are worried about contracting Coronavirus?

A: Generally, you cannot refuse to come to work unless you think you are in immediate danger. There are some options available to you, though, if you are concerned. You can either take existing PTO or you can speak with your employer and discuss the possibility of working from home.

CONTRACTED CORONAVIRUS

Q: Can I be fired for calling in sick during the coronavirus outbreak?

A: If you test positive for Coronavirus and call in sick there are laws that protect you from this sort of action.

The Family Medical Leave Act protects people absent from work due to a serious health condition.
The Americans with Disabilities Act would protect you if you have an underlying health condition or disability which made you more susceptible to contracting Coronavirus.
The Families First Coronavirus Response Act also says that it is illegal for any employer to discharge, discipline, or discriminate against any employee who tries to access the law’s leave provision.

Q: Can I be fired for not working while I have Coronavirus and subject to self-isolation and/or quarantine?

A: As long as you are self-isolating or in quarantine at the direction of an order by the State of NY, the Department of Health, or any other governmental agency then you are protected from being fired. Job protection exists as long as the order remains in place.

Q: I am being treated unfairly as a result of my Coronavirus diagnosis. What should I do?

A: You have many options that may be applicable under state and federal law. Be sure to ask your attorney which one would provide the most relief or benefit for you during this time.

File a complaint with the New York State Office of the Attorney General
File a complaint with the Equal Employment Opportunity Commission
File a complaint with the New York State Division of Human Rights
File a complaint with the NYC Commission on Human Rights (if you are an employee of NYC)

Q: What are my rights if I need an accommodation due to my treatment or recovery from Coronavirus?

A: Your employer will have an obligation to provide reasonable accommodations as a result of short or long-term disabilities if you require such an accommodation to do your job. Reasonable accommodations include telecommuting, shifting work hours, or taking leave if needed. A temporary illness would qualify as a short-term disability. You should request the accommodation needed from your employer. If they deny it, you can file a complaint with the following organizations depending on your situation:

File a complaint with the New York State Office of the Attorney General
File a complaint with the Equal Employment Opportunity Commission
File a complaint with the New York State Division of Human Rights
File a complaint with the NYC Commission on Human Rights (if you are an employee of NYC)

Q: Am I entitled to workers’ compensation if I contracted Coronavirus on the job?

A: You may be entitled to workers’ compensation insurance during any treatment or recovery. If you qualify, you would receive 2/3 of your average weekly rate of pay in weekly benefits with a maximum payment of $934.11 per week. You would need to apply for benefits with the Workers’ Compensation Board.

Q: I have been diagnosed with Coronavirus. What are my rights to paid leave?

A: This depends on the size of the company you work for. You may have paid sick leave available (in addition to any sick leave you have with your employer already) through either federal or state laws.

Q: How do the federal and state laws on sick leave apply to me?

A: If you are covered by federal law (due to the number of employees your employer has and the amount of time you have been working for them) then those laws apply. If the federal laws are less generous than state laws, then you can supplement the New York state law as well.

Q: Can you provide an overview of the Families First Coronavirus Response Act?

A: The FFCRA is a federal law that went into effect April 1, 2020 and is effective through December 31, 2020. It requires certain employers to provide their employees with paid sick leave and expanded family and medical leave for reasons related to Coronavirus.

Available to employees of private sector employers with fewer than 500 employees as well as certain public sector employers
Paid sick leave is provided for up to two weeks either fully or partially paid due to Coronavirus-related reasons.
Summary of Paid Leave:
- If you have been required to quarantine or self-isolate due to a government order: You will be eligible for up to two weeks (80 hours, or a part-time employee’s equivalent of two weeks) of paid sick leave at your regular rate of pay, or the applicable state or federal minimum wage, up to $511 per day and $5,110 total
- If you have been advised by a health care provider to self-quarantine due to Coronavirus: You will be eligible for up to two weeks (80 hours, or a part-time employee’s equivalent of two weeks) of paid sick leave at your regular rate of pay, or the applicable state or federal minimum wage, up to $511 per day and $5,110 total
- If you are experiencing Coronavirus symptoms and are seeking a medical diagnosis: You will be eligible for up to two weeks (80 hours, or a part-time employee’s equivalent of two weeks) of paid sick leave at your regular rate of pay, or the applicable state or federal minimum wage, up to $511 per day and $5,110 total
- If you are caring for an individual who is under mandatory quarantine by government order or has been advised by a health care provider to self-quarantine: You are eligible for up to two weeks (80 hours, or a part-time employee’s equivalent of two weeks) of paid sick leave at 2/3 of your regular rate of pay, or the applicable state or Federal minimum wage, up to $200 daily and $2,000 total.
- If you are caring for a child whose school or place of care is closed due to Coronavirus related reasons: You are eligible for up to 12 weeks of paid sick leave and expanded family and medical leave paid at 2/3 rate of your pay, up to $200 daily or $12,000 total
  - Note: To be eligible for the additional 10 weeks of partially paid expanded family and medical leave you must have been employed for at least 30 days prior to your leave request.
- If you are experiencing any other substantially-similar condition specified by the US Department of Health and Human Services: You are eligible for up to two weeks (80 hours, or a part-time employee’s equivalent of two weeks) of paid sick leave at 2/3 of your regular rate of pay, or the applicable state or Federal minimum wage, up to $200 daily and $2,000 total.

Q: Can you provide a summary of the recently enacted COVID-19 Paid Sick Leave Law by New York state?

A: The amount of leave that you are eligible for through state law is dependent upon the size of your employer (as of Jan 1, 2020). See the scenarios below to determine what benefits might be available to you. One thing to note is that this law went into effect immediately on March 18 (before the Federal Law went into effect).

If you are quarantined yourself due to Coronavirus
- Employer has 10 or fewer employees and a net annual income of $1M or less:
  - You are entitled to unpaid leave; however, you would also be eligible for paid family leave (see below) at a portion of your normal pay
  - Eligible employees can use NY Paid Family Leave. This is insurance coverage that provides up to 60% of your pay, up to a maximum weekly benefit of $840.70.
  - After receiving your full PFL benefit, you will receive disability benefits to match your full wages up to a maximum weekly disability benefit of $2,043.92, for a total of $2,884.62 per week.
  - There is no waiting period for either benefit.
- Employer has between 11-99 employees and employers with 10 or fewer employees but net income of greater than $1M:
  - Your employer is required to provide you with at least five days of paid sick leave and unpaid leave for the remaining duration
  - After that, you can use a combination of NYS Paid Family Leave and disability benefits
  - Eligible employees can use NY Paid Family Leave. This is insurance coverage that provides up to 60% of your pay, up to a maximum weekly benefit of $840.70.
  - After receiving your full PFL benefit, you will receive disability benefits to match your full wages up to a maximum weekly disability benefit of $2,043.92, for a total of $2,884.62 per week.
- Employer with 100 or more employees
  - Your employer must provide you with at least 14 days of paid sick leave which should cover the period of a mandatory or precautionary order of quarantine or isolation.
- Public employers
  - Your employer must provide you with at least 14 days of paid sick leave which should cover the period of a mandatory or precautionary order of quarantine or isolation.
- If your minor dependent child is quarantined
  - Who is covered: Most employees who work for private employers are covered. If you are a public employee, your employer may opt out of providing this benefit. If you are a union-represented public employee, you would be covered if your union and public employer agreed to include it in their collective bargaining agreement.
  - Eligible Employees:
    - Full-time employees: If you work a regular schedule of 20 or more hours per week you are eligible after 26 consecutive weeks of employment with your employer.
    - Part-time employees: If you work a regular schedule of less than 20 hours per week, you are eligible after working for your employer for 175 days, which do not need to be consecutive.
    - Citizenship and/or immigration status is not a factor in eligibility.
  - Rights and protections:
    - Job protection – entitled to return to same job
    - Health insurance continues. If you contribute to your health insurance, you are required to continue this while on leave.
    - Employer is prohibited from discriminating or retaliating against you for taking this leave.
  - Benefit: You are eligible for paid family leave for the duration of the quarantine / isolation. You would be paid at 60% of your average weekly wage, up to a maximum weekly benefit of $840.70. Your average weekly wage is the average of your pay for the last eight weeks in which you worked and received wages prior to starting Paid Family Leave.
- If you need leave to care for a family member who has Coronavirus
  - You can may be eligible for up to 10 weeks of paid family leave to care for a close family member with a serious health condition, including Coronavirus, even if family members are outside the state of NY. Family members include:
    - Spouse
    - Domestic Partner
    - Child/stepchild and anyone you have legal custody over
    - Parent / stepparent
    - Parent-in-law
    - Grandparent
    - Grandchild

A quick snapshot of the amount of leave available to you under state law is below:

Employer with 1-10 employees and a net income of $1M or less: They are not required to provide new paid sick days. Instead, use Paid Family Leave and disability benefits
Employer with 1-10 employees and a new income over $1M: Your employer must provide at least 5 paid sick days.
Employer with 11-99 employees: Your employer must provide at least 5 paid sick days.
Employer with 100 employees or more: Your employer must provide at least 14 paid sick days.
Public Employers: Your employer must provide at least 14 paid sick days.

Note: Now that both federal and state laws are in effect it seems that employees will generally have access to 14 days of paid leave regardless of which laws applies. This applies either if you work for an employer who has 1-499 employees (federal) or 500+ (state) if an individual contracts Coronavirus and is subject to mandatory quarantine themselves.

Q: For the COVID-19 Paid Sick Leave Law in New York state, is the number of paid days work or calendar days?

A: Calendar days

Q: I only work part-time. Am I eligible for paid sick leave?

A: Yes. You would be eligible for leave under both federal and state laws.

Q: Can my employer tell other employees I have Coronavirus?

A: Employers cannot identify you by name if you have Coronavirus as that is considered a medical record. They are, however, required to notify any other employees, vendors, etc. that you may have worked in close proximity to over the last 14 days. They should notify them of possible exposure without identifying who you are.

Q: Can my employer move me to a different position or change my pay when I return from quarantine or self-isolation?

A: No, your employer must restore you to the same position you held prior to the leave with the same pay.

Q: My employer is requiring that I use my sick time (PTO) instead of additional leave available to me either through federal or state law. Is that legal?

A: No. They cannot require you to exhaust your accrued sick time before accessing the emergency sick and family leave benefits available either through federal or state law.

Q: When is payment required to be made? When should I receive my paid sick leave?

A: You should receive it in the paycheck for the applicable pay period that you would normally have been paid had you gone into work.

Q: Do I have to repay these benefits?

A: No, you do not have to repay any benefits.

Q: Do I have to apply for any Coronavirus paid sick leave?

A: No, you do not have to apply for paid sick days if your employer is required to offer them either through federal or state law. If you need access to state paid family leave and/or disability benefits, then you would need to apply for those.

Q: How do I apply for state paid family leave and/or disability benefits?

A: First you will need to contact your employer and let them know that you would like to apply for these benefits. You’ll then submit the forms provided to you to your employer’s insurance carrier. You must do so no later than 30 days after your first day of leave.

EMPLOYER QUESTIONS

Q: I was just told by my employer that a colleague I may have worked with closely has tested positive for Coronavirus. Can they require me to work from home?

A: Yes, for the safety of others they can require you to work from home for 14 days.

Q: Can my employer take my temperature or demand I be tested for Coronavirus?

A: Yes, an employer can take your temperature or ask how you are feeling. (EEOC) While they can’t demand for you to be tested, they can require you to go home if you are exhibiting symptoms for the required quarantine period and suggest that you get tested. In order to be eligible for paid sick leave you must be exhibiting symptoms and in the process of getting a diagnosis or already diagnosed with Coronavirus. Employers may send you home and proactively inform other employees of potential exposure during this time as well.

Q: My employer is requiring a doctor’s note before I can return to work after contracting Coronavirus. Is that legal?

A: If your employer normally asks for a doctor’s note to return to work after an illness then they can require one for you to return to work after being diagnosed with Coronavirus.

Q: My employer asked me to travel somewhere or do something that may expose me to the virus. Can I refuse?

A: Potentially. Your employer is required to provide a safe workplace, and this extends to any place in which they want you to travel. (OSHA) The question is whether requiring you to travel to a coronavirus hotspot would have an objective substantial risk of death, disease, or serious bodily injury. You may also be protected if you have a disability or underlying health condition through the ADA.

Q: My employer is asking employees about personal travel. Is that legal?

A: An employer cannot require you to report travel to an area that is not currently a high risk for Coronavirus. However, they can inquire if you have visited these areas to proactively protect the health and safety of their workers.

Q: Can my employer ban me from traveling…either for work or personal reasons?

A: Since business travel is a condition of employment your employer can place a travel ban on travel for business. Your employer cannot prevent you from traveling for personal reasons, but they may be able to prevent you from working in the office if you have recently traveled or to protect the health and safety of others.

Q: Can my employer require employees to report any contact or potential contact with someone who has is diagnosed with Coronavirus?

A: Yes, they can. Employers are allowed to ask employees if they believe they have been exposed to the virus.

Q: Our business was shut down and I was furloughed but my boss still wants me to respond to customer emails. Should I still be paid for the work?

A: If you were furloughed you should not be responding to customer emails. If your boss still wants you to then you should be paid for your time as a working employee. Work should not be authorized during a furlough.

Q: I look like or am from a country that is a Coronavirus hotspot. What are my rights if my employer is treating me unfairly because of this?

A: An employer cannot discriminate based on race or national origin. If you have been fired, demoted, or harassed because of this type of discrimination then you have a few options:

You can file a complaint with the Office of the Attorney General
You can file a complaint with the Equal Employment Opportunity Commission
You can file a complaint with the New York State Division of Human Rights
You can file a complaint with the NYC Commission on Human Rights (if you are a NYC employee)

Q: Can my employer temporarily or permanently lay off employees in response to an order to close a business?

A: Yes, they can. You may be entitled to unemployment insurance if that happens while you are temporarily or permanently laid off.

Q: I have been interviewing for a job and recently was given an offer by a prospective employer. They have come back and rescinded the offer due to a policy change because of Coronavirus. Is that legal?

A: In general, yes, as most employment situations are based in contract and an offer can be withdrawn prior to be accepted. Generally, an employer can withdraw a job offer for almost any reason as long as it is not a discriminatory one.

REPORTING & RETALIATION RIGHTS

Q: I work in healthcare. Can I complain about how my employer is handling the Coronavirus outbreak?

A: If you work in healthcare and would like to report how your employer is handling the outbreak then you are protected from retaliation. You should contact the New York State Department of Health. If you have been retaliated against for reporting conditions or patient care issues, then you should contact the Office of the Attorney General.

Q: Can my employer retaliate against an employee for taking advantage of rights and benefits related to employment and Coronavirus?

A: No, they cannot. If you have been retaliated against you should contact the Attorney General’s Office. Under OSHA, retaliation is also prohibited for complaining about health and safety conditions at work. If you experience retaliation due to this then you have 30 days to file a complaint with your local OSHA office.

Q: I have a complaint to make regarding my employer. Under what circumstances can I submit a complaint to the Office of the Attorney General?

A: If your employer is doing any of the following then you can consider filing a complaint with the Attorney General’s Office:

Requiring you to come into work even if your employer is not an essential business
Requiring you to come to come to work even though you are a “non-essential” employee in an essential business
Not permitting you to telecommute or work from home when it would be reasonable for you to do so.

You can contact the Attorney General’s Office at Labor.Bureau@ag.ny.gov or by phone at (212) 416-8700.

Q: Can my employer fire me for trying to claim paid sick leave?

A: No, employers are prohibited from retaliating against employees who exercise their rights and try to claim benefits.

UNEMPLOYMENT QUESTIONS

Q: What are my rights if I am laid off or furloughed from my job as a result of my employer’s reduction in business or if their business closed?

A: You may be entitled for up to 26 weeks of unemployment insurance if you are laid off on a temporary or permanent basis through no fault of your own. The amount you would receive will depend on your average weekly rate of pay (minimum of $104 / week and a maximum of $504 / week). In order to qualify, you must be actively looking for work. You’ll want to apply immediately after you are laid off. You can file a claim online or via telephone. Once you file a claim and are approved you must also claim weekly benefits (also known as “certifying your benefits”) each week that you are unemployed. You’ll claim your weekly benefits each week online or via telephone.

Q: Can I file for unemployment insurance if only one of my two jobs was furloughed or laid off?

A: Yes. In this instance you would be eligible for partial unemployment benefits as long as you work fewer than four days per week and do not earn over the maximum rate of $504 per week. If you receive partial benefits you may be entitled to them for a longer period of time than an employee who received full unemployment insurance benefits.

Q: Can I file for unemployment insurance even if I am an independent contractor?

A: You may be entitled to unemployment insurance even as an independent contractor. In New York, any worker that experiences a loss in work may apply for unemployment insurance with the New York Department of Labor.

Q: How soon can I apply for unemployment insurance benefits due to a job loss because of Coronavirus? Is there a waiting period?

A: You can file immediately.

The Cimino Law Firm is operating at full capacity for you and your loved ones throughout this coronavirus pandemic.

To make our law firm more accessible, we are conducting confidential consultations over the phone or virtually through Zoom videoconferencing. There is no need to leave the safety and comfort of home to get your family law questions answered.

If you have questions about an employment law matter, please contact us today to arrange your confidential consultation.

With over 20 years of experience, Michelle Cimino has established a reputation as one of the best employment law attorneys in Rochester, NY for her integrity, compassion, commitment, and results.

Contact us today to get a head start on your employment law matter and avoid any potential delays caused by this pandemic.

Stay safe and take care of each other.

Michelle Cimino, Esq.

Coronavirus and the Workplace: Know Your Rights