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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
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:
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:
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.
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