Category: Workforce Trends

COVID-19 Sick Leave

NYS DOL Proclaims New COVID-19 Sick Leave Mandates

On January 20, 2021, the New York State Department of Labor issued new “guidance” regarding COVID-19 sick leave. The two-page document signed by Commissioner of Labor Roberta Reardon purports to relate to the State’s March 2020 law regarding leave for employees subject to a quarantine or isolation order due to COVID-19. However, the DOL pronouncements seem to create new obligations not found in the law.

NYS COVID-19 Quarantine Leave Law

At the beginning of the coronavirus crisis in March 2020, both New York State and the federal government enacted employee leave laws specific to COVID-19. The federal law expired December 31, 2020 (though employers who continue to allow paid leave as the law provided remain eligible for tax credits). The New York law had no expiration date.

The New York COVID-19 leave law was comparatively limited, essentially only creating an employer-paid leave entitlement when employees were placed under a precautionary or mandatory order of quarantine or isolation due to COVID-19. The law is clear that the order must be from a government health authority, not a private medical provider.

The amount of leave required under the New York COVID-19 sick leave law depends on the employer’s size. The smallest private employers (less than 10 employees and net income under $1 million) do not have to provide paid leave. Mid-sized companies (up to 99 employees) must pay for 5 days of leave due to COVID-19 quarantine or isolation. Large private employers (100+ employees) and all public (governmental) employers must provide up to 14 days of paid leave in this situation.

The law also modified the NYS disability and paid family leave programs to supplement the portion of such leaves that employers did not have to pay for directly.

Click here for more on the New York State COVID-19 sick leave law.

Earlier DOL Guidance

In late March 2020, the NYS DOL issued guidance on the new leave law through a State website. This guidance addressed questions such as how to calculate the rate of pay. It also provided new forms for employees to request paid family leave or liability benefits due to a COVID-19 quarantine.

Click here for more on the original New York State COVID-19 sick leave guidance.

New COVID-19 Sick Leave Guidance

The January 20, 2021 guidance from the NYS Commissioner of Labor is initially notable for its format. Rather than a proposed regulatory document or even website guidance as used back in March, these new COVID-19 sick leave parameters appear in a plain .pdf file bearing a DOL logo heading and ending with Commissioner Reardon’s signature and a New York, New York dateline. Overall, this more closely resembles the approach used by the New York Department of Health to put out temporary standards for COVID-19 safety under Governor Cuomo’s numerous executive orders during the pandemic. However, no executive order has granted the DOL this authority.

The document begins by expressly referencing the March 18, 2020 “legislation authorizing sick leave for employees subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19.” That legislation grants the Commissioner of Labor “authority to adopt regulations, including emergency regulations, and issue guidance to effectuate any of the” law’s provisions. But, again, this guidance is not in the form of regulations. Even emergency regulations would require more formalities. The law continues that “Employers shall comply with regulations promulgated by the commissioner of labor for this purpose which may include, but is not limited to, standards for the use, payment, and employee eligibility of sick leave pursuant to this act.”

Does the same force apply to a generic “guidance” document? That’s a fair question that could reasonably be answered, “no,” especially since the guidance seems to deviate meaningfully from the terms of the law itself.

Valid or not, the new guidance notes that “All prior guidance remains in effect”. It then includes four numbered paragraphs that seem to address issues that likely have been asked of the DOL about the law.

Return to Work

The DOL confirms that following quarantine or isolation, employees don’t have to be tested for COVID-19 before returning to work. (There is an exception for nursing home staff.) This conclusion seems consistent with the law.

But the guidance goes further to indicate that if an employee does subsequently receive a positive test result, they may not return to work. In that scenario, the employee must continue to isolate. Moreover, the DOL suggests that such an employee will automatically be deemed to be subject to a mandatory order of isolation from the NYS Department of Health and entitled to leave under the NYS COVID-19 sick leave law. This idea of an automatic isolation order appears contrary to the law, which plainly requires the employee to obtain an order from a health department to qualify for leave. The guidance says that, in this situation, the employee only needs to submit documentation from a medical provider or testing facility confirming the positive test result–again, inconsistent with the law.

New Paid Leave Scenario

The DOL also appears to have created an entirely new COVID-19 paid leave requirement not codified in the March 18, 2020 legislation. The guidance document indicates that if an employer requires an employee who is not subject to a quarantine or isolation order to stay home due to exposure or potential exposure to COVID-19, then the employer must pay the employee for all time missed until allowing the employee to return to work or until the employee becomes subject to a quarantine or isolation order. Notably, the DOL doesn’t establish any further exceptions to this new obligation. For example, it doesn’t relieve the employer of the obligation to pay even where an employee recklessly exposed himself to COVID-19.

There is no reasonable way to read this paid leave obligation into the March COVID-19 sick leave law. Nonetheless, employers must either adhere to the DOL’s position or risk having to contest it legally.

Three Strikes and You’re Out

When the New York COVID-19 sick leave law took effect in March 2020, no one anticipated the disease to remain prevalent for as long as it has. There was a general belief that anyone could only become infected once and that a 14-day quarantine or isolation period would eliminate any transmission risk. The way things have worked out, it has unexpectedly become clear that some people may run into multiple quarantines or isolations due to COVID-19. So, how much paid leave do they get?

According to the DOL, employees can qualify for COVID-19 sick leave up to 3 times. And the second and third times only count if based on a positive COVID-19 test.

Right, wrong, or indifferent, the law itself doesn’t say anything about three leave periods or limit any scenario to a positive test. Does the Commissioner of Labor have this much authority to re-write the law? Probably not, but again, who wants to take that risk?

Between a Rock and Hard Place

New York employers are already facing tremendous difficulty applying the array of leave requirements that potentially apply to employees dealing with COVID-19 issues. On the one hand, further guidance from the DOL arguably provides answers to questions companies are facing. On the other hand, it’s highly questionable whether the DOL has the authority to make these pronouncements. Both following and ignoring this latest guidance could create legal problems for employers. Not all of these “interpretations” are in the employees’ favor. So, even doing the right thing according to the DOL could upset an employee who might have a reasonable claim that they were denied rights under the NYS COVID-19 sick leave law.

Perhaps the DOL will clarify its authority, or the State will otherwise confirm the validity of this guidance. For now, however, employers should consult experienced New York employment counsel if confronted by any of the issues addressed by this DOL document.

 

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WARN Notice Obligations

COVID-19 Not an Absolute Defense to WARN Notice Obligations

The COVID-19 pandemic led many employers to reduce their workforces suddenly in 2020. Often, large layoffs occurred with little or no advance notice. Consequently, many employees asserted claims under the federal Worker Adjustment and Retraining Act (WARN Act) and/or similar state laws. Though ultimate liability depends on many factors, a recent federal court decision involving the Enterprise car rental company suggests that employers can’t completely avoid WARN notice obligations just because COVID-19 introduced unprecedented business circumstances.

WARN Notice Requirements

The WARN Act requires employers with at least 100 employees to give up to 60 days’ advance notice to employees (or their unions) and various government entities before implementing certain reductions in force. Notice is required in advance of “plant closings” and “mass layoffs.”

A “plant closing” occurs where an employment site (or one or more facilities or operating units within an employment site) will be shut down, and the shutdown will result in an “employment loss” for 50 or more employees during any 30-day period.

A “mass layoff” occurs where there is to be a group reduction in force that does not result from a plant closing, but will result in an employment loss at the employment site during any 30-day period for (a) 500 or more employees, or (b) 50-499 employees if they make up at least 33% of the employer’s active workforce.

The term “employment loss” means (i) an employment termination, other than a discharge for cause, voluntary departure, or retirement, (ii) a layoff exceeding 6 months, or (iii) a reduction in hours of work of individual employees of more than 50% during each month of any 6-month period.

WARN Notice Exceptions

Employers must give the full 60 days’ notice unless a statutory exception applies.

Faltering Company

This limited exception only applies in the case of plant closings, not mass layoffs. To qualify for the faltering company exception, a company must have been actively seeking capital or business that it had a realistic opportunity to obtain with a good faith belief that giving WARN notice would have precluded the employer from obtaining the capital or business. In addition, the capital or business sought must have been sufficient to avoid or postpone the plant closing.

Unforeseeable Business Circumstances

This exception applies when business circumstances were not reasonably foreseeable when the 60-day notice would have been required.

The employer should be able to point to “some sudden, dramatic, and unexpected action or condition outside the employer’s control”. Federal regulations emphasize that foreseeability should focus on the employer’s “commercially reasonable business judgment”. A company is not required “to accurately predict general economic conditions that also may affect demand for its products or services.”

Natural Disaster

The WARN notice obligations are also mitigated in cases of natural disasters. WARN regulations define “natural disasters” to include “floods, earthquakes, droughts, storms, tidal waves or tsunamis and similar effects of nature.”

For this exception to apply, the employer must show that the reduction in force was a “direct result of a natural disaster.”

Enterprise WARN Act Litigation

In April 2020, the Enterprise rental car company began layoffs with little notice to employees. Some affected employees sued under the WARN Act in the U.S. District Court for the Middle District of Florida. (Benson v. Enterprise Leasing Co., Case No. 6:20-cv-891)

Enterprise made a motion to dismiss the case based on both the “natural disaster” and “unforeseeable business circumstances” exceptions. In January 2021, the court denied the motion, allowing the case to continue.

Notably, the court did not reach the question of whether COVID-19 qualifies as a natural disaster under the WARN Act. However, the judge reasoned that it at least wasn’t clear that the layoff was a “direct result” of COVID-19. Instead, he decided, “This is an indirect result–more akin to a factory that closes after nearby flooding depressed the local economy. Defendants’ facilities or staff didn’t disappear overnight, suddenly wiped out.”

Accordingly, the judge shifted his focus to the unforeseeable business circumstances exception. He acknowledged that the defense “may apply,” but did not warrant dismissal of the case at this early stage. He emphasized that this exception may justify a reduced notice period, but doesn’t necessarily eliminate WARN notice obligations altogether. In this case, one employee received no notice and the other only six days’ notice. Thus, it remains to be litigated whether Enterprise could have given more notice before beginning the layoffs.

Cautionary Tale for Employers

The Enterprise case in Florida will turn on the facts and circumstances of that case. However, the denial of a motion to dismiss serves as a reminder to employers. Litigation is costly and often unpredictable. It is best to carefully consider, with legal experts, the applicability of any potential exception before undertaking reductions in force that could trigger the WARN Act.

COVID-19 might reduce some employers’ WARN notice obligations, but it likely does not eliminate them entirely. The unforeseeable business circumstances exception probably has become harder to rely on now that the pandemic is so far underway. Unfortunately, the adverse economic impact, including layoffs and business closings, is likely to continue, meaning further WARN Act implications.

 

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Reopening Gyms

New York Phase 4: Reopening Gyms & Fitness Centers

On August 17, 2020, Governor Andrew Cuomo announced that gyms and fitness centers could finally reopen as early as August 24, 2020. However, reopening gyms would not be a simple task in New York. Operators must comply with extensive guidelines, including a mandatory on-site inspection by the local health department.

NYS Guidelines for Reopening Gyms & Fitness Centers

The New York State Department of Health has issued Summary and Detailed Guidelines for reopening gyms and fitness centers. The guidelines include recommended and mandatory procedures for social distancing, protective equipment, hygiene, cleaning, and disinfection, communication, and screening. They also provide pertinent information related to on-site activities and air handling systems.

Covered Businesses

The gym and fitness center guidelines cover a wide range of activities, such as:

  • Fitness activities and facilities that stand alone or are located in a hotel, residence, or office
  • Gyms and fitness centers located in higher education institutions
  • Yoga/Pilates/Barre studios
  • Boxing/kickboxing gyms
  • Fitness boot camps
  • CrossFit or other plyometric boxes;
  • Other group fitness classes (e.g., spin, rowing, and dancing).

Although the guidelines take effect on August 24, 2020, county executives and the Mayor of New York City could delay the effective date until September 2, 2020. If your gym or fitness center has other facets of the business that operate out of the building that you intend to reopen, you will also be required to comply with other applicable industry-specific guidelines from the NYSDOH. Examples include fitness centers or gyms that contain restaurants, snack bars, pools, or childcare centers.

Mandatory Parameters

Gyms and fitness centers cannot exceed 33% capacity, counting both employees and patrons. Outdoor classes and activities are encouraged, to the extent practicable.

Classes or group activities are restricted to the lesser of:

    • A size that permits social distancing of 6 feet between participants and the instructor;
    • A maximum of 33% of a typical class size; or
    • The social gathering limit set by the State, which is currently 50.

Both employees and patrons (who can medically tolerate them) must wear face coverings at all times. Everyone must also socially distance by keeping at least 6 feet apart.

Unlike most other businesses, gyms and fitness centers must be inspected by the local health department before or within 14 days after opening. Local health departments will inspect for compliance with the NYSDOH reopening guidelines.

High-risk activities that require physical contact, such as boxing and martial arts, are still prohibited. Businesses can refer to the separate “Interim Guidance for Sports and Recreation during the COVID-19 Public Health Emergency” to determine the level of risk, and corresponding restrictions, associated with various sports and recreational activities.

Air Filtration

The guidelines establish new standards related to air filtration systems. Gyms and fitness centers that have central air handling systems must use an HVAC filtration system that meets the highest-rated filtration compatible with the currently installed filter rack and air handling system. The minimum is a MERV-13, or industry equivalent or greater (e.g., HEPA), as applicable. A certified professional must document compliance in a written statement.

Facilities that have a central air handling system that cannot handle a MERV-13 or greater filtration system must obtain a statement from a certified professional confirming that the current system would not perform adequately with a higher filtration system. These facilities, along with those who do not control their central air handling systems, must adopt additional ventilation and air filtration mitigation protocols as set forth by the U.S. Centers for Disease Control (CDC) and the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE).

Other Standard Reopening Conditions

As with all other industry-specific guidelines set forth by the NYSDOH, gyms and fitness centers must create and implement a safety plan. The plan must include protocols for conducting health screenings and procedures for obtaining contact information for all employees, patrons, and visitors.

Thus must also develop a communication plan that allows the company to disseminate COVID-19 related information effectively.

What Should New York Gyms and Fitness Centers Do Next?

Gym and fitness center operators must review the guidelines and affirm that they have read, understood, and intend to implement them before reopening. You must prepare a written safety plan and post it on-site along with all other required signage. You must also schedule an on-site inspection with your local health department.

 

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