In response to the novel coronavirus epidemic, the federal government and the State of New York have issued a number of new laws and executive orders that impact employment decisions and working conditions for employees in residential buildings. Below is a short overview of these recently passed laws and guidelines for dealing with building employees during this unique time. Because the governmental guidances and requirements are evolving and specific circumstances may vary, these are general guidelines only; consult with counsel or your HR advisor with respect to specific questions.
- New York’s Work-From-Home Executive Order:
Employees of Businesses Providing Non-Essential Services Ordered to Work From Home.
You may have read of Governor Cuomo’s executive order requiring employers to utilize telecommuting or work-from-home procedures, and employers are to reduce the in-person workforce at work locations by 100%.
Employees of residential buildings who provide building and cleaning maintenance, sanitation, safety and essential operations for residential properties are, however, considered “essential,” and exempted from the order’s work-from-home procedures. This includes doormen, building cleaners or janitors, maintenance employees and employees involved in trash and recycling collection, processing and disposal.
Although these employees are exempt from the work-from-home order, Boards and Managers should take care to provide appropriate safety and employment protections to such employees during this challenging time.
- Mandatory Paid and Unpaid Sick Leave to Employees Impacted by COVID-19.
On March 18, 2020, both the United States Congress and the State of New York passed laws to provide paid and unpaid sick leave benefits to employees who are unable to work or subject to quarantine or isolation due to COVID-19. A description of these new laws can be found here:
- Families First Coronavirus Response Act New Federal Paid Leave and Other Requirements Impacting Employers
- New York Passes Legislation Requiring Paid and Unpaid Sick Leave to Employees Subject to Government Ordered Quarantine or Isolation due to COVID-19
Given the swiftness with which these laws were enacted and their several qualifications and limitations, there is uncertainty as to how these laws will be enforced and as to inconsistency between them. For guidance in their application to your specific circumstance, please consult with counsel.
- Guidelines for Boards and Management On Handling Employment Issues.
Smith, Gambrell & Russell’s Labor and Employment Group has published a compilation of answers to questions currently facing employers as the novel coronavirus pandemic continues to unfold, which can be found here. As for Co-ops and Condominiums, the most pertinent guidelines and best practices include the following:
Can the Board tell employees with symptoms to stay home or send them home?
Yes. Employers may ask employees if they are experiencing symptoms, and should instruct such employees to leave the workplace. Any other employees with whom they have worked should be notified of the possible exposure and all known information should be provided, but confidentiality of the infected employee should be maintained as required by the Americans with Disabilities Act (ADA). To this end, the Center for Disease Control (CDC) has published interim guidance for employers, found here. Employers should use the CDC’s interim guidance to determine risk of COVID-19 infection. Employers should not make determinations of risk, or employment-related decisions, based on race, religion or country of origin.
Can we require an employee to notify their superior if they have symptoms or have tested positive for COVID-19?
Yes, you should require any employee who has coronavirus symptoms or tests positive to notify their supervisor. Employees who are suffering from symptoms should be directed to remain at home.
Can we ask our employees personal health questions related to COVID-19 or require them to get medical examinations?
Generally, the ADA prohibits employers from making disability-related inquiries or requiring medical examinations of employees. However, the EEOC has issued a guidance document on the application of the ADA to COVID-19, which sets forth ways in which an employer may lawfully make ADA-compliant inquiries and require medical examinations, found here.
May an employer terminate an employee who refuses to come to work based on fear of exposure? The Occupational Safety and Health Act of 1970 (OSHA) contains provisions that may prohibit sanctioning an employee who refuses to come to work due to concerns over contracting COVID-19. Under the guidelines, an employee may refuse to work upon a reasonable belief that they are in imminent danger, and that there is a threat of death or serious physical harm. It is unclear what concerns are “reasonable” under the present circumstances. The more specific the reason given – such as an underlying health condition or age over 60, confirmed infections in the building, lack of appropriate disinfection procedures or other protections in the building – as opposed to a generalized fear of the virus, the more likely a potential violation if the employee is sanctioned. The most prudent approach would be to avoid imposition of sanctions against employees who refuse to report and express a fear related to Covid-19. Guidelines and practices for resident and staff safety can be found at the websites of both the Council of New York Cooperatives and Condominiums, and at the website of Local 32BJ.
What should staff be informed if a resident or another staff member is known to have symptoms/be infected?
If a resident or staff member of the building has been diagnosed, staff and residents of the building should be informed in a general manner that a person in the building has been diagnosed. If a resident or staff member believes he or she may have been exposed, or otherwise suspects he or she may be suffering from the virus, but it has not yet been confirmed by testing or other means, staff who have been in close contact by, for example sharing a locker room, break room or bathroom should be informed in a general manner that a person sharing those facilities may carry the virus. In all circumstances, the warning of potential exposure should not include the person’s identity. The person’s identity and details of his or her health condition should be limited to those with an immediate need to know, such as the management account executive, or a staff member who must enter the apartment for emergency repairs. Again, guidance can be found at both the Council of New York Cooperatives and Condominiums, and at the website of Local 32BJ.
If a staff member must enter an apartment of a resident who is suffering from the virus to make emergency repairs (non-emergency work in apartment should have been suspended), the staff member should be advised of the resident’s condition, should be given appropriate personal protective equipment, and the residents of the apartment should be instructed to stay in rooms where the work is not taking place.
What guidance and information is being provided by the 32BJ Union to members?
The position of the 32BJ Union with respect to the COVID-19 pandemic is on its website. This guidance is largely consistent with the guidelines and links provided herein.