NYS Labor & Human Resources News

Getting Employees Back from Unemployment

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As New York businesses slowly begin to reopen, many are having difficulty getting employees previously furloughed or laid off to return to work. One reason may be the generous unemployment (UI) benefits provided as part of the federal CARES Act passed in March. In addition to extending the period benefits are available by an additional 13 weeks and adding additional qualifying reasons for receiving benefits, the CARES Act provided an additional temporary $600 per week for each UI recipient affected by the COVID pandemic. As a result, it is entirely possible that employees you furloughed/laid off are receiving more from UI than they did working for you.

Now that you need and want these employees to return to work, what can you do? While the state of New York has broad latitude in making UI eligibility decisions, in general, the same rules apply to emergency UI benefits as applied prior to the emergency. That is, that employees must be “ready, willing, and able to work” and actively seeking employment.

If you are able to re-employ a former staff member, contact the individual directly. If the claimant refuses rehire or fails to report to work, they may become ineligible for benefits. Your offer of employment must pay at least the Unemployment Insurance cutoff wage (10% lower than the Unemployment Insurance prevailing wage) for similar work. You can find the UI prevailing wage for your area here.

If this happens, you should contact the Department of Labor in writing:

NYS Department of Labor
PO Box 15130
Albany, NY 12212-5130
or fax to: (518) 402-6175

Governor Cuomo Mandates Employers Provide Masks for Certain Employees

On Monday, Governor Cuomo signed an Executive Order requiring all essential employers to provide “face coverings” for any employee who has direct contact with the public. This mandate takes effect at 8:00 PM tonight, April 15. Failure to comply is a violation of §12 or 12-b of the Public Health Law. Last night, the NYS Department of Health posted guidance on how employers must comply with this order. Highlights of the guidance include:

  • Face coverings include, but are not limited to, cloth (e.g. homemade sewn, quick cut, bandana), surgical masks, N-95 respirators, and face shields and must be provided to employees at no cost
  • Direct interaction with the public shall be determined by the employer, but, at a minimum, shall include any employee who is routinely within close contact (i.e. six feet or less) with members of the public, including but not limited to customers or clients
  • Employees are allowed to use their own face coverings, but shall not be mandated to do so by their employer
  • Employees are required to wear such face coverings…except where doing so would inhibit or otherwise impair the employee’s health. Employers are prohibited from requesting or requiring medical or other documentation from an employee who declines to wear a face covering due to a medical or other health condition that prevents such usage
  • Such employees - and other employees who may be vulnerable to COVID-19 due to age or underlying health condition - should consult with their employer to consider reasonable accommodations, including but not limited to different PPE, alternate work location, or alternate work assignment with fewer interactions with the public
  • If an employer is unable to procure, fashion, or otherwise obtain face coverings for their employees, they may consult with their local office of emergency management to determine if extra supplies exist
  • Employers are also required to provide such face coverings for contractors, including independent contractors

The guidance acknowledges that shortages of face coverings exist and are prioritized for health care workers. However, “not being able to source face coverings does not relieve an employer’s obligation to provide such face coverings to their employees.”

Employees who refuse to wear a face covering for health reasons could pose a significant problem as employers are expressly prohibited from requiring medical documentation to support such a claim. As you know, both the American’s with Disabilities Act (ADA) and NYS Human Rights Law (HRL) require employers engage in an “interactive process” with employees to determine reasonable accommodations for qualified individuals with disabilities. Not having supporting documentation - not engaging in this process - then reassigning individuals per the guidance could possibly result in claims of discrimination based underlying health conditions.

It appears that the guidance would allow such employees to continue to work in positions with public contact. However, an employer must weigh the customer and public relations risk of doing so. Customers and clients will be well aware of the face covering requirement and, finding an employee not wearing one, could assume non-compliance.

Additionally, although many of you have implemented workplace practices (limiting cash handling, etc.) and physical barriers (plexiglass shields, etc.) between your employees and the public, the guidance does not appear to relieve you of the responsibility of providing face coverings and requiring employees to use them.

Note also that the Executive Order does not relieve an employer’s responsibilities under OSHA. The N95 mask, commonly in use during this pandemic, is included in OSHA’s Respiratory Protection Standard (29 CFR § 1910.134). This standard requires that in any workplace where respirators are necessary to protect the health of the employee or whenever respirators are required by the employer, the employer shall implement and maintain a written respiratory protection program with worksite-specific procedures. The written plan shall include:

  • Procedures for selecting respirators for use in the workplace
  • Medical evaluations of employees required to use respirators
  • Fit testing procedures for tight-fitting respirators
  • Procedures for proper use of respirators in routine and reasonably foreseeable emergency situations
  • Procedures and schedules for cleaning, disinfecting, storing, inspecting, repairing, discarding, and otherwise maintaining respirators
  • Procedures to ensure adequate air quality, quantity, and flow of breathing air for atmosphere-supplying respirators
  • Training of employees in the respiratory hazards to which they are potentially exposed during routine and emergency situations
  • Training of employees in the proper use of respirators, including putting on and removing them, any limitations on their use, and their maintenance; and
  • Where respirator use is not required:

Ordinary surgical masks, sewn cloth masks or bandanas would not require a written OSHA plan.

As mentioned above, this requirement becomes effective 8:00 PM on April 15 for all essential businesses and entities. If you have any questions, please contact me.

Next Labor/HR Webinar:

Recruitment 101

Just the basics. Is your employment application up-to-date? What can I say in an employment advertisement? What can I ask or not ask in an employment interview. We’ll cover the legal issues and best practices involved in hiring a new employee.

Date | Thursday, April 23, 2020

Time | 11:00 AM to 12:00 PM

Cost | Free for Business Council members, $99 for non-members

Presented By | Frank Kerbein, Director of the Center for Human Resources

This program has been approved for HRCI certification


To learn more contact the Business Services Representative at NYS Department of Labor, 194 US Oval, Plattsburgh, NY 12903 (518) 561-0430 ext. 3058