In addition to Paul Keneally, this post was authored with input from Alina Nadir and Jennifer Shoemaker.
Some developments as the state and federal governments start to consider the re-opening of more workplaces to employees:
The EEOC has issued a guidance that COVID testing of employees should be permitted and should not be considered itself a violation of the Americans with Disabilities Act (“ADA”), just as it previously had stated regarding taking the temperatures of employees. This EEOC guidance comes just as Governor Cuomo here in New York has approved independent pharmacies to perform COVID-19 diagnostic and antibody testing, and we await more information on when that testing will begin. In addition, a drive-thru COVID-19 testing center has just opened at Monroe Community College (“MCC”) for health care providers, emergency responders and those with sufficient symptoms to meet the criteria to be tested only. Appointments are required by phone prior to going to MCC for a COVID-19 test.
The Governor has also issued a guidance on the stages of the re-openings in New York, perhaps as soon as May 16, 2020: stage one to be for certain manufacturing and construction employers. Stage two will begin with other businesses deemed to be more essential and less of an outbreak risk, before proceeding to allow the opening of businesses deemed to be less essential and riskier. All employers re-opening will need a written safety plan for its employees; and each region will have a control center to monitor the safety performance of that region’s employers.
Businesses re-opening (and those already open) will be required to have a written plan outlining the specific safety precautions they will be taking to help lower the risk of spreading the COVID-19 virus. Factors to be considered for inclusion in the safety plan:
Workplace hours and/or shift adjustments;
Social distancing standards;
Non-essential travel restrictions;
Masks to be worn by those who cannot keep social distance;
Strict cleaning and sanitation standards;
Continuous health screening process for people entering the workplace;
Assistance with the reporting, tracking and tracing of COVID-19 cases; and
Develop liability processes.
On a separate topic, the New York State Division of Tax and Finance has directed employers in New York who are reducing the schedules of, or terminating, laying off or furloughing employees to provide those employees with the employer’s NYS registration number, federal employer identification number and official name and address, in order to facilitate the processing of the employees’ unemployment insurance applications.
If you have any questions, please contact us here or at 585-258-2800.
You can view more COVID-19-related posts in our COVID-19 Resource Area here.