July, 2020
July 16, 2020
Providing Reasonable Accommodations for Employees in the Time of COVID-19

____ The reopening of businesses in New York and New Jersey is good news for many employers and employees who are eager to get back to work. But the events of the past few months and the resurgences of COVID-19 infections across the United States have left many employees concerned about staying healthy while back at the workplace. In response, the Centers for Disease Control and Prevention (“CDC”) and state and local health departments have issued reopening guidelines and safety plans that employers must follow. The plans require, among other things, health screening, social distancing, personal protective equipment, and regular cleaning and disinfecting. 

____ For some employees, however, these guidelines and plans may not be enough to alleviate their risks. Indeed, the CDC has identified populations that need extra precautions because they are at a higher risk of becoming infected with COVID-19 or experiencing severe illnesses as a result of COVID-19. These include older adults, certain racial and ethnic minority groups, persons experiencing homelessness, persons who are pregnant or breastfeeding, persons with disabilities, and persons with developmental and behavioral disorder s. In addition, the CDC has identified a list of underlying medical conditions – including chronic kidney disease, chronic obstructive pulmonary disease (COPD) , obesity, serious heart conditions, sickle cell disease and type 2 diabetes – that are known to place persons of all ages at greater risk of becoming severely ill from COVID-19.  The CDC also has identified a growing list of medical conditions that might place persons at greater risk of becoming severely ill from COVID-19. 

           So what are employers’ obligations toward employees who may be at higher risk from COVID-19? Here are some situations that most employers are likely to face, and our recommended “do’s” and “don’ts”:

Employee has a known disability and requests permission to work from home .

  • DO engage in an interactive process with any employee who has a disability as defined by the Americans with Disabilities Act (“ADA”), or state or local disability laws, to determine if there is a reasonable accommodation that will allow the employee to return to the workplace safely without causing undue hardship to the employer. 

  • DO NOT ignore the employee’s disability and condition the employee’s continued employment on their return to the worksite.  

Employee is pregnant and agrees to return to the worksite.

  • DO treat pregnant employees the same as any other employee with regard to their ability or inability to work, or need for job modifications. In addition, be aware that while the ADA does not consider pregnancy without underlying medical conditions to be a disability, many state and local laws do. As such, state and local laws may require employers to engage in an interactive process with pregnant employees to discuss reasonable accommodations.

  • DO NOT unilaterally decide that employees who are pregnant, or who are members of any other vulnerable population identified by the CDC, should not return to the workplace. Although employers may have good intentions in making such decisions, they risk violating federal, state and local laws that prevent employers from making employment decisions based on employees’ age, gender, race or other protected categories.

Employee lives with an individual who is in one of the vulnerable groups listed by the CDC and requests to work from home or refuses to return to the workplace when asked to do so.

  • DO provide eligible employee with leave under federal, state or local laws, such as the federal Families First Coronavirus Response Act, and be aware of job protections and other employee rights under these laws. Employers may also choose to provide such employees with flexible work arrangements or other accommodations even though employers are not legally obligated to do so. 

  • DO NOT inquire about whether an employee’s family members have been diagnosed with or have symptoms of COVID-19. The employer may, however, ask an employee whether they have been exposed to or had contact with anyone who has COVID-19 or associated symptoms.

Employee does not have a disability or underlying medical condition but fears exposure to COVID-19 and refuses to return to the workplace.

  • DO consider offering flexible work arrangements such as remote work, if possible, even though employers may not be legally required to do so.

  • DO NOT treat such employees in the same manner as an employee with a disability. Fear of COVID-19 does not entitle an employee to an accommodation. At the same time, an employer should not be quick to force the return of non-essential employees who can work remotely. Federal law does not require employers to provide accommodations to employees who refuse to return to the workplace solely due to fear of COVID-19 exposure. However, federal law may protect employees who complain about their employers’ failure to comply with regulations, guidelines, and plans with respect to, for instance, safety and hygiene in the workplace. NYS and NJ employees may also file complaints with their respective Departments of Labor. 

Employee has an underlying medical condition that makes it difficult for them to wear a face mask for prolonged periods of time.

  • DO engage in an interactive process with the employee regarding potential reasonable accommodations, which may include alternative face masks, shields or other personal protective equipment, or perhaps paid or unpaid leave under federal, state or local law.

  • DO NOT terminate the employee’s employment on the ground that state or local law requires face masks in the workplace, without first engaging in the interactive discussion with the employee and seeking further advice from counsel.  

__ As a general matter, employers should document any request by an employee for a reasonable accommodation, engage in the interactive process, document the dialogue that ensued and document the reasonable accommodation that was given (or, if no reasonable accommodation was granted, document the reason). Employers should also be aware that state and local disability laws may impose broader requirements than the federal ADA.

__ Last, but not least, employers should recognize that the various steps required to reopen their businesses – such as health screening forms, social distance markers and directional signs – may pose challenges to employees with visual, hearing or other impairments and may require discussion of reasonable accommodations for returning employees.

__ For further information and counseling on reasonable accommodations and returning employees to the worksite, please contact Chaim Book at cbook@mb-llp.com or Sheryl Galler at sgaller@mb-llp.com .  

Tip Credits to be Eliminated for Many NYS Employers

____ _ Over the course of this year, NYS will phase out the so-called “tip credit” for employers covered by New York’s Minimum Wage Order for Miscellaneous Industries and Occupations . Employers covered by the Order include service industries such as nail salons and car washes, but do not include the building service industry, farms or the hospitality industry (that is, restaurants and hotels).
______ The tip credit permits certain employers to meet the minimum wage requirements by combining a cash wage with an allowance, or credit, for employees’ average earnings in tips from customers.
______ As of June 30, the law reduced covered employers’ tip credits by 50 percent. As of December 31, 2020, the tip credit will be eliminated and covered employers will be required to pay their employees the full minimum wage applicable in their region of New York State. Covered employers are not permitted to keep any portion of tips that employees receive from customers.
______ As of December 31, 2020, the minimum wage will be $15 per hour in New York City, $14 per hour Long Island and Westchester, and $12.50 per hour for employees working elsewhere in New York State.
______ If you have questions about the tip credit or minimum wage laws, please contact Chaim Book at cbook@mb-llp.com or Sheryl Galler at sgaller@mb-llp.com
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