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With covid-19 not giving up, employment lawyers across the country, including our Long Island employment lawyers at Famighetti & Weinick PLLC, are facing questions about how the new pandemic will affect essential workers and non-essential workers who go back to work as the country adjusts to “the new normal” and the economy reopens.

In one of our previous posts, we opined that workers with generalized fear or anxiety about workplace covid-19 exposures likely were not protected under the Americans with Disabilities Act (“ADA”). That blog assumed that only vulnerable workers, or workers with underlying medical conditions worried about contracting coronavirus, were protected under the ADA.

A recent federal court decision, however, suggests that even workers with generalized fear or anxiety about workplace covid-19 exposures may be protected under the ADA. Even though the decision was issued by a Texas district court concerning voters, the analysis may be used to extend the disability discrimination laws’ coverage for workers who lack immunity to covid-19.

Early on in the coronavirus pandemic, we posted content about the constitutionality of social distancing and business shutdown orders. At the time, the issues were new and had not been recently tested in court. With protests about such orders’ constitutionality becoming more prevalent and with the orders being tested in court, it is time to re-visit the question of the constitutionality of COVID-19 related government regulations.

Constitutionality of Shutdown Orders

On May 15, 2020, United States District Judge Gary R. Brown (Eastern District of New York) issued a decision relating to New York’s business shutdown order, also known as the Pause. In sum, Governor Cuomo’s order directs that all business which are non-essential must operate via telecommuting only and must reduce  their in-person workforce by 100%. Essential businesses may stay open with no reduction in force required. The order allowed for enforcement under the Public Health Law with consequences for businesses which did not comply.

When the coronavirus pandemic started taking hold in the New York region, government moved to shutdown businesses to help control the spread of the virus. New York State Governor Cuomo instituted the Pause program which required all non-essential businesses in New York to close. But, essential businesses were allowed to stay open.

Almost immediately, employment lawyers across the state, including our Long Island employment lawyers at Famighetti & Weinick PLLC, were inundated with calls from essential workers worried about contracting covid-19 from the workplace. We blogged about these concerns and also posted a video about these issues.

As New York begins to emerge from the Pause and the economy is set to re-open, questions still remain about the rights of vulnerable segments of the workforce safely returning to work and the rights of other workers who are concerned about contracting the virus. Today’s Long Island employment law blog discusses some of these concerns, with a focus on the EEOC’s latest guidance issued on May 5, 2020.

As the country begins to re-open from the coronavirus shutdown, governments and employers are working to implement procedures to protect workers, patrons, and citizens generally, from the continued threat of covid-19. Face masks and temperature checks are likely to be universally accepted requirements for businesses and workplaces. But, antibody testing is also becoming widespread and was talked about early on in the re-opening discussion as an important tool because of the possibility that it could reveal individuals who have immunity.

But, the issue of immunity has been questioned more recently. Indeed, experts have expressed uncertainty as to whether a person exposed to covid-19 can become sick with the virus again. Some reports from overseas have supported the uncertainty by claiming that individuals who recovered from coronavirus, became sick again. Further, antibody testing is more invasive than merely taking temperatures by infrared thermometer or requiring a person to wear a mask externally.

So, can employers require that employees undergo antibody testing? Antibody testing (and even temperature checks) will be considered a medical examination under the Americans with Disabilities Act (ADA). The EEOC, which is responsible for guidance under the ADA, allows temperature checks to be taken of employees before they enter the workplace because of the severe risk posed by the spread of covid-19. The EEOC relies on the ADA’s permissible use of medical exams when the exam is job related and consistent with a business necessity.

Today’s Long Island employment law blog discusses the primary beneficiary test which is used to determine whether an individual is an employee for purposes of being covered by minimum wage and overtime laws.

As the prevalence of lawsuits concerning improper payment of wages has continued to rise over the past few years, one area of increased litigation is whether unpaid interns are considered employees and are thus entitled to the protections of minimum wage and overtime laws such as the Fair Labor Standards Act (FLSA). The law in this area became clearer after the Second Circuit Court of Appeals considered the Glatt case in 2016.

Glatt and the unpaid intern line of cases typically involve students who perform work for companies to obtain real-life experience in their field of study. For example, law students often take internships with judges or law firms while in law school to gain practical legal experience. Interns may work for the film industry, as they did in the Glatt case, or with financial services companies.

Causation is part of every employment discrimination case. Causation means that there is a link between the employment action and a discriminatory reason.  For example, if a worker is fired because the worker was caught stealing from the employer, the decision to terminate the worker is legitimate, not discriminatory. But, if the employer terminates a worker because the worker is 60 years old, there is a link between the decision to terminate and a discriminatory motivation for the decision.

The law provides different standards of causation. Sometimes, discrimination must be a determinitive factor in the decision to take action against the employee, meaning that the employer would not make the same employment decision without a discriminatory animus present. This is usually referred to as “but for” causation. Other times, the law says that the discrimination can be one of many factors, usually called a mixed-motive or motivating factor standard.

Many employment discrimination laws, particularly federal laws, do not spell out which type of causation is required. So, courts are left to interpret the appropriate level of causation.  Recently, led by Supreme Court decisions, courts have been applying but-for causation to discrimination cases, except in circumstances where Congress has expressly acted to convey its intent that some other level of causation applies. Based on the decisions, we have clarity that but-for causation applies to age discrimination and retaliation claims. Motivating factor applies to federal Title VII claims (race, religion, sex, national origin).

One of the hottest topics in the pre-pandemic world of employment law was whether gig drivers and workers are employees or independent contractors. The term gig worker applies to a variety of work arrangements, but is increasingly used to describe workers who provide services for online ride sharing businesses such as Uber and Lyft and online food delivery services such as Grubhub and Doordash.

For years, workers have been battling with the companies over the legal status of their work relationship. The question is whether gig workers are independent contractors or whether they are employees. Independent contractors are not entitled to workers compensation benefits and unemployment benefits, and the company is not required to comply with minimum wage and overtime laws for independent. So, it’s highly beneficial for the companies to have their workers classified as independent contractors, but highly detrimental to the workers.

Fortunately or unfortunately, depending on the viewpoint, the question of whether a worker is an independent contractor or employee is not left to the company to decide. Rather, the question is a legal issue and resolved by applying legal principles to the business/worker relationship.

At Famighetti & Weinick PLLC, our Long Island employment lawyers are fielding calls from employees worried about a number of different coronavirus related employment issues. One serious issue we are seeing is health care workers’ concerns about working when the best protective equipment may not be available or may not be being provided by the employer. Specifically, what we’re seeing is questions about whether health care workers, such as nurses, doctors, and nursing home aides, must report to work when their employer is not providing equipment like n-95 respirator masks. Today’s Long Island employment law blog discusses workplace safety issues related to working in the era of Covid-19.

Like most employment questions relating to coronavirus, there are no easy answers. We’ll first look at some legal considerations, then we’ll address some practical considerations.

OSHA is the federal agency which regulates workplace health and safety. OSHA regulation Section 13(a) allows employees to refuse to work when the employee believes that he or she is in “imminent danger.” To be considered an imminent danger, the workplace condition must “reasonably be expected to cause death or serious harm immediately or before the imminence of such danger can be eliminated through” OSHA’ enforcement procedures. In further defining imminent danger, the condition must be reasonably expected to shorten life or substantially reduce physical or mental efficiency.

El 18 de Marzo de 2020, el presidente Trump promulgó La Ley de Primera Respuesta al Coronavirus de las Familias. La ley establece, entre otras cosas, licencias para empleados relacionados con el coronavirus y entrará en vigencia 15 días a partir del 18 de Marzo. La ley proporciona licencia por enfermedad de emergencia, licencia familiar de emergencia y créditos fiscales. Al igual que la ley de Nueva York sobre la que escribimos en el blog a principios de esta semana, la aplicación de la ley varía según el tamaño del empleador. Los detalles de la ley se analizan a continuación.

La Ley de Primera Respuesta al Coronavirus de las Familias requiere que ciertos empleadores proporcionen a sus empleados licencia remunerada por enfermedad o familia por razones específicas relacionadas con COVID-19. [1] La División de Salarios y Horas del Departamento de Trabajo administra y aplica los requisitos de licencia pagada de la nueva ley. Estas disposiciones se aplicarán desde la fecha de entrada en vigor hasta el 31 de diciembre de 2020.

Aucensia  Por  Enfermedad 

En estos tiempos inciertos, los Neoyorquinos están luchando por encontrar consuelo siempre que sea posible. En el contexto del empleo, los empleados se han enfrentado a preguntas sobre la seguridad laboral, la seguridad de los ingresos y cómo equilibrar las instrucciones para quedarse en casa del gobierno y los intentos de los empleadores de mantener sus negocios en funcionamiento.

El 18 de Marzo del 2020, la ley fue firmada por el gobernador de Nueva York, Andrew Cuomo, promulgaría leyes para otorgar licencias y licencias por enfermedad pagadas por ausencias laborales relacionadas con el coronavirus. El blog de derecho laboral de Long Island de hoy discute las disposiciones de la ley.

Empleados sujetos a cuarantena mandatoria o cuarentena precaucinarias ordenado por el Estata de Nueva York , Departamento de Salud o culaquier entidad gubernamental debidamente authorizada para emitar dicha orden, tendra derecho a licencia por enfermedada pagada de la siguente manera:

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