Workers in New York are protected under existing and new federal laws, as well as state laws. In addition to federal and state laws, employees who work in New York City are also entitled to protections under various NYC laws. The following sections discuss the applicability of these laws.
Am I Entitled to Paid Leave Under the NYC Paid Safe and Sick Leave Law if I Get the Coronavirus?
Under the NYC Paid Safe and Sick Leave Law, employers with five or more employees who work more than 80 hours per calendar year in New York City must provide up to 40 hours of paid leave for employees who need so-called “safe” or sick leave. Employers with fewer than five employees must provide 40 hours of unpaid leave. Employees may begin to use sick leave 120 days after their first day of employment. The sick leave law covers employees regardless of immigration or citizenship status.
For What Reasons Am I Allowed to Take Sick Leave Under the NYC Sick Leave Act?
Employees have the right to use sick leave for the care and treatment of themselves, a family member, or a person whose relationship (or association) with the employee is so close that they are the equivalent of family. Employers must allow employees to use sick leave when a public official closes their business, the worker’s child’s school, or childcare provider due to a public health emergency.
“Safe leave” can be used by employees when they or a family member have been the victim of an act or threat of domestic violence, unwanted sexual contact, stalking, or human trafficking. The purpose of “safe leave” is to allow the victimized employee time to figure out what do next and focus on their welfare safety without fear of losing their job and income.
Do I Need to Provide Medical Documentation to Get Sick Leave?
Employers are not permitted to require medical documentation from employees until they have been absent for more than three consecutive days.
What Happens if My Employer Threatens Retaliation for Taking Sick or Safe Leave?
Employers may not engage in or threaten retaliation against employees who assert these rights. Retaliatory actions include firing, or any other intimidating act or statement that punishes an employee, or is likely to deter her from exercising her rights under the law to safe or sick leave.
If you are the victim of retaliatory action for taking permitted sick or safe leave, this is illegal. If you would like to discuss your rights if you are the victim of illegal retaliation, please call our firm.
Can NYC Employees Be Subjected to Discrimination Based Upon Having the Coronavirus / COVID-19?
If you’re an employee in New York City, the answer is “no” under New York City’s Human Rights Law. The NYC Human Rights Law is one of the most liberal, expansive and employee-oriented anti-discrimination laws in the United States.
NYC’s Human Rights Law prohibits discrimination based on protected categories including gender, race, ethnicity, disability, and other matters, as well as gender identity and expression. And, unlike federal and state laws, there are no caps on the amount of damages that a victim can be awarded by prevailing at trial.
Most significantly during this pandemic crisis, the NYC Human Rights Law offers the broadest protections for employees with disabilities. The law puts the burden on employers to “reasonably accommodate” an employee’s illness, and the definition of disability is expansive and inclusive, covering “any physical, medical, mental or psychological impairment, or a history or record of such impairment.”
As a result, if you have (or believe that you have) the coronavirus, your employer MUST engage in a “cooperative dialogue” with you if you advise them that you are sick. They also must be flexible with your working conditions in accommodating your illness unless they can demonstrate such flexibility will cause an “undue hardship” on the company, which is difficult for the company to prove.
Does the NYC Fair Workweek Law Apply to Schedule Changes Under the Coronavirus Pandemic?
Normally, under NYC law, fast food and retail employers must give workers advance notice of work schedules, including schedule changes. In some cases, if those schedules change, then the employer must pay the employee a premium wage.
Fast food employers must give employees premium pay for schedule changes with less than 14 days’ notice. That includes cases when the employer requires an employee to cover the shift of a sick coworker, or when the employer cancels scheduled shifts.
Retail employers cannot require an employee to work additional hours with less than 72 hours’ notice, and they can’t cancel or reduce an employee’s hours with less than 72 hours’ notice, unless the employer obtains written consent from the employee.
It’s important to note that these requirements do not apply to retailers when the City or State declares a state of emergency that closes the business, such as is the case during this deepening coronavirus crisis. Thus while such condition exists, NYC employers will not be required to pay such compensation under New York’s Fair Workweek Law.
Can Employees Request Changes Under the NYC Temporary Schedule Change Law?
Under the NYC Temporary Schedule Change Law, employees can ask to make temporary changes to their schedules for certain personal events twice per year, totaling no more than two days. These two days are in addition to an employee’s accrued sick leave. Temporary schedule changes can include working remotely, arriving to work later than required or leaving later than is normally the case, or using short-term unpaid leave.
Can Employers Take Discriminatory Actions Under the Coronavirus Pandemic?
No.
These are pretty bleak and challenging times for all New Yorkers and Americans. Whatever the state of the economy or our nation on the other side of this pandemic, employers are still not permitted and will never be permitted to unlawfully discriminate against employees based on illegal factors, or deprive employees of their livelihoods, compensation and the dignity of working in an environment free from illegal hostility, discrimination or harassment.
Tuckner Sipser will continue to update you about your employment rights and protections.
Please stay well and safe and contact an attorney if you have concerns about employee rights.