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COVID-19 and Reopening NYC

Employers and legislators are turning their attention to the eventual reopening of workplaces, and in some places like Georgia it is already happening. To help make sense of fast-changing rules and regulations, we address in this FOUR part series of blog posts some answers to frequently asked questions about what reopening in NYC might look like.

Questions related to Workplace Safety

My boss has asked me to return to the office. I am healthy but don’t feel safe leaving my home where I have successfully been working remotely for many weeks. Can my boss require that I go back to the office?

Unfortunately, fear is not a legal or protected reason for refusing to go back to working from your office. There might been an exception for an employee who suffers from a disability (either an underlying health issue that could make contracting coronavirus fatal or a diagnosed mental-health condition and the pandemic is exacerbating that disability) and requires a reasonable accommodation to work from home under the Americans With Disabilities Act and New York’s State and City counterparts. Otherwise, you can certainly make the case for continuing to work at home, but your boss is not required to agree.

I have an underlying health condition. Can my employer force me to return to work?

If you have a disability under the ADA you have protection and can request a reasonable accommodation to work from home.

What if I’m pregnant?

If you are pregnant and have a pregnancy-related disability such as gestational diabetes, you have to right to seek a reasonable accommodation under the Americans with Disabilities Act and its New York State and City counterparts. In New York, the Pregnant Workers Fairness Act, enacted in 2014, provides protection to pregnant employees to ensure their safety while they work. This law might offer protection if you are pregnant but otherwise healthy but concerned about the safety of your workplace.

My employer is not following the Centers for Disease Control and Prevention guidelines for a coronavirus-safe workplace. What are my legal rights?

Your employer should definitely be made aware of your safety concerns. If your employer does not remedy the unsafe condition, you can file a complaint with the Occupational Safety and Health Administration (OSHA), the federal agency that oversees workplace safety. Be aware that the guidelines issued by the CDC’s are “recommendations,” so employers cannot be sanctioned for violating them. OSHA can determine whether your employer is violating its “general duty clause”, which requires that each employer to furnish to each of its employees a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm OSHA is required to follow up on complaints, so the employer will at least be put on notice that workers are upset that they are being required to work in an unsafe office. At this time, OSHA does not provide for a private right of action for an aggrieved employee.

Coming Out of Coronavirus Lockdown

What can I do if my employer doesn’t provide handwashing breaks or enforce social distancing?

This concern should definitely be raised with the employer. Again, OSHA is the agency to receive a complaint such as this one. Workers also have some protections to refuse to work if there is a reasonable expectation that workplace conditions could cause serious physical harm or death. The National Labor Relations Act protects “concerted activity,” (collective employee action) so if employees walk out together after exhausting other options, they are protected from retaliation.

My employer follows safety guidelines, but I worry about exposure on my commute. Do I have any options?

Start with asking if you can work from home. There might be an easy answer to your concern. If you are a vulnerable employee or have an ADA-qualifying disability, you have the right to seek an accommodation to work from home. Otherwise, you could be required to return to your workplace.

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