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The Families First Coronavirus Response Act (FFCRA), which became law on March 18, 2020, creates a temporary system of paid sick leave for workers in New York City and around the country. It also temporarily expands the unpaid leave provisions of the Family and Medical Leave Act (FMLA). The purpose of these measures is to provide support for workers affected by the COVID-19 pandemic. The law makes multiple exceptions, however, for both large and small employers. Businesses with five hundred or more employees, which comprise a sizable plurality of employers in the country, are not covered by these provisions at all. Employers with fewer than fifty employees may have an exemption under the FFCRA. A new temporary rule published by the U.S. Department of Labor (DOL) explains how small employers can claim this exemption.

Paid Sick Leave and Expanded Family and Medical Leave

Division C of the FFCRA, the Emergency Family and Medical Leave Expansion Act (EFMLEA), provides an expansion of the right to unpaid leave under the FMLA. Division E, the Emergency Paid Sick Leave Act (EPSLA), provides paid sick leave at the national level. These two sections provide combinations of paid and unpaid leave with job protection for eligible employees. The provisions will remain in effect until December 31, 2020.

Exemptions from the EPSLA and the EFMLEA

Both laws give the DOL authority to exempt employers with fewer than fifty employees from these requirements if they “would jeopardize the viability of the business as a going concern.” See Pub. L. 116-127 §§ 3102(b), 5111(2). In its discussion of the new rule, the DOL notes that, according to the U.S. Census Bureau’s 2017 Statistics of U.S. Businesses, only 221,454 private businesses, those with fifty or more but fewer than five hundred employees, would not have been eligible for the “viability” exemption. This comprises about four percent of all private employers covered by the EPSLA and EFMLEA.

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As of mid-April 2020, the coronavirus pandemic has caused the loss of approximately 22 million jobs in the United States, based on the number of unemployment claims around the country since early March. With layoffs becoming increasingly common, New York City employment attorneys are seeing that more and more workers are being asked to sign severance agreements as they are shown the door. State and federal law regulate certain aspects of typical severance agreements, so New York City workers should consider seeking a legal opinion before signing anything.

What Is a Severance Agreement?

The term “severance agreement” can refer to any document that purports to show an agreement between an employer and an employee at the end of the employment relationship. A severance agreement is usually part of a “severance package,” which might include additional compensation besides wages or salary already owed to an employee. This could be a cash payment, stock options, or contributions to a retirement account.

Waivers of Rights in Severance Agreements

The employer, of course, expects something in return. In exchange for the additional compensation in a severance package, a severance agreement might contain a clause waiving the employee’s right to bring claims for wrongful termination, discrimination, harassment, or retaliation. The only way for a waiver of these rights to be enforceable is if the employer gives something in return. This is where severance agreements can be dangerous for workers.

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The global coronavirus pandemic has caused an abrupt shock to the economy, forcing employers to adopt “social distancing” measures intended to slow the spread of the virus, which causes a respiratory illness known as COVID-19. The governor has issued a series of executive orders (EOs) ordering businesses to allow remote working wherever possible, to reduce the number of people at offices and worksites, or to close down entirely. Certain businesses deemed “essential” may continue operations, but they are directed to follow public health officials’ recommendations for protecting their workers. As New York City employment attorneys, we must consider what rights employees have should an employer fail to follow the EOs or the public health guidance. This question has no clear answer, since this is truly an unprecedented event in modern history. State and federal law offer some ideas, though.

Non-Essential Business Closures

The governor issued EO 202 on March 7, 2020, which declared a disaster throughout the state of New York. This gave him the authority to suspend certain state and local laws and issue directives to businesses and individuals. On March 18, he issued an EO that ordered all “non-essential” businesses to “reduce the in-person workforce at any work locations by 50% no later than March 20.” The EO excludes “essential” businesses like health care facilities, telecommunications and utility providers, grocery stores, pharmacies, garbage collection, and banks. Businesses may request to be deemed “essential” by applying to the Empire State Development Corporation (ESDC).

Two subsequent EOs, issued on March 19 and 20, increased the in-person workforce reduction to 75%, and then 100%, respectively. An EO issued on April 7 extends business closures and restrictions until at least April 29.

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Laws at the city, state, and federal levels in New York City prohibit discrimination by employers on the basis of sex, and they all include sexual harassment in their definitions of sex discrimination. This can involve harassment by a member of any sex against a member of the same or any other sex. That said, most New York City sexual harassment attorneys would probably tell you that the type of case they still most commonly encounter involves a male supervisor or manager harassing a female employee. A lawsuit that is currently pending in a New York City federal court presents this sort of scenario. The plaintiff is alleging causes of action under laws at all of the three levels we mentioned above. The defendants include the City of New York, the police department, and multiple public officials. As a result, the lawsuit also asserts a cause of action for civil rights violations.

Sexual harassment constitutes sex discrimination in two general circumstances:
1. Quid pro quo sexual harassment: Agreeing or submitting to sexual advances or demands is a condition of getting a job, keeping a job, or other terms or conditions of employment. For example, a movie producer refuses to cast someone unless they agree to sexual activity in some form, or a restaurant manager gives the best shift assignments to servers who meet the manager’s sexual demands.
2. Hostile work environment: Pervasive and unwelcome sexual behavior renders the workplace unreasonably hostile and impedes a person’s ability to do their job. For example, an employee is repeatedly subjected to unwanted sexual comments or touching, or management refuses to address a work environment laden with inappropriate and offensive jokes.

The plaintiff in the lawsuit described earlier states in her complaint that she began working for the NYPD as an officer in 2012. She alleges that in 2015, her direct supervisor began subjecting her to a hostile work environment in the form of “unwanted physical contact” and “highly inappropriate sexual comments.” She further alleges that, after she informed the supervisor that his conduct was not welcome, her superiors reassigned her to a position she did not request, and which she states was generally “considered undesirable.” This, she claims, was retaliation for her “unwillingness to engage in sexual and promiscuous activities with male officers.”

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The global coronavirus pandemic has had an immense impact on the economy in a very short period of time. Many workers who have not yet shown the symptoms of the disease known as COVID-19 find themselves needing to self-quarantine because of possible exposure. Those who do show symptoms must also quarantine themselves and seek medical treatment. Several new laws offer assistance to workers affected by the pandemic. The federal government passed a bill in March 2020 establishing a temporary system of paid sick leave for many workers. New York State also passed a bill in March providing paid sick leave and expanding access to the state’s Paid Family Leave program.

Overlap of State and Federal Law

The bill passed by the U.S. Congress, entitled the Families First Coronavirus Response Act, creates a temporary system for paid sick leave that expires at the end of 2020, unless Congress acts to renew or modify it. New York State’s new law does not have an expiration date.

The New York law states that if a worker is entitled to paid leave under both state and federal law, then they are only eligible for state benefits under state law to the extent that they exceed the amount of benefits available under federal law. In other words, if federal law requires an employer to pay a particular employee $100 per day, and state law requires them to pay $120 per day, state law only covers the $20 excess amount.

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The global coronavirus pandemic has led to major economic disruptions across the country. As more and more people are urged — or required — to remain at home, and businesses deemed “non-essential” are ordered to reduce or cease operations, many people find themselves out of work or unable to get to their jobs. People who must quarantine themselves also cannot get to work. Both New York State and New York City have taken steps to help people affected by the crisis. The federal government has also acted, passing the Families First Coronavirus Response Act (FFCRA) in mid-March 2020.

Three of the bill’s major sections could offer assistance to workers in New York City:
– Division C, the Emergency Family and Medical Leave Expansion Act, does as its name suggests and temporarily expands the unpaid leave provisions of the Family and Medical Leave Act (FMLA).
– Division D, the Emergency Unemployment Insurance Stabilization and Access Act of 2020, provides additional grants for state unemployment insurance programs.
– Division E, the Emergency Paid Sick Leave Act, creates a temporary federal mandate for paid sick leave for certain employers.

Unemployment Insurance

Each state maintains an insurance fund for unemployment compensation. Employers pay into the fund as part of their payroll taxes. The federal government supplements the funds through grants. The unemployment provisions of the FFCRA authorize greater expenditures on state programs. Some of these extend to the end of fiscal year 2020, or September 30, while others continue to the end of the calendar year.

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Workplace discrimination has been a problem for about as long as workplaces have existed. New York City employment discrimination attorneys have some of the most powerful tools ever devised to fight back against such practices, but it remains a serious problem. Laws like Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of several factors. National origin discrimination has taken the national stage in recent weeks because of the global coronavirus pandemic. Far too many people have channeled their fear of the virus, which might have originated in China, into acts of discrimination and harassment against people whom they perceive to be of Asian descent. In the workplace, this violates Title VII and other statutes.

Title VII, the New York City Human Rights Law (NYCHRL), and the New York State Human Rights Law (NYSHRL) specifically identify national origin as a protected category. Federal regulations interpreting Title VII define “national origin” to include both “an individual’s, or his or her ancestor’s, place of origin” and “the physical, cultural or linguistic characteristics of a national origin group.” 29 C.F.R. § 1606.1. The Equal Employment Opportunity Commission (EEOC) considers harassment on the basis of national origin to constitute unlawful employment discrimination when “ethnic slurs and other verbal or physical conduct relating to an individual’s national origin” create a hostile work environment or otherwise impede a person’s ability to do their job. Id. at § 1606.8(b).

Public health officials first noticed the virus, which is officially known as SARS-CoV-2 and commonly known simply as the coronavirus, late last year when a cluster of cases appeared in Wuhan, China. The disease caused by the virus is known simply as “coronavirus disease 2019,” or COVID-19. In 2015, the World Health Organization (WHO) issued best practices for naming new infectious diseases, in which it recommended that the media, governments, and scientists refrain from naming new diseases after geographic locations “to minimize unnecessary negative effects on nations, economies and people.”

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The coronavirus has had a massive impact on people’s lives, and their jobs, in a very short span of time. In order to slow the spread of the virus, and to give the healthcare system more time to adapt and prepare, local and state governments are urging people to practice “social distancing.” Governors and mayors have ordered businesses to cut their hours, or to close down substantial parts of their operations. As many forms of economic activity have slowed, companies have begun laying off employees. This is not, in itself, unlawful, but as New York employment discrimination attorneys are aware, it is not always the layoffs themselves that are legally problematic — it is the way in which employers carry out the layoffs.

Employment at Will

New York is an “at will” employment state, meaning that an employer may fire an employee for any reason, or no reason at all, as long as it does not violate contractual obligations, internal policies, or the law. An employer cannot fire someone because of their race, religion, sex, or another protected category, nor can they fire them in a way that creates a hostile work environment on the basis of a protected category.

Harassment and Hostile Work Environment

Antidiscrimination laws at all levels in New York City treat harassment on the basis of sex, race, national origin, and other factors as a form of unlawful discrimination.

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Most U.S. states now allow medical marijuana use to some extent, but marijuana remains strictly controlled under federal law. This creates a dilemma of sorts for employers. Mandatory drug testing is still a feature of many workplaces around the country, but if marijuana use is not always illegal, should it necessarily lead to firing or refusing to hire someone? The New Jersey Supreme Court recently ruled that an individual who was terminated because of lawful medical marijuana use outside of work can bring a disability discrimination claim. New York disability discrimination attorneys have been able to draw on state law to protect their clients since 2014, when the state approved medical marijuana use with express non-discrimination provisions. New York City will soon offer even more protection with a new law banning the use of pre-employment marijuana tests.

Medical Marijuana and Disability Discrimination in New York State

New York State’s Medical Marijuana Program arose from the Compassionate Care Act (CCA), which became law in 2014. The CCA states that “certified patients” have a “disability” for the purposes of state antidiscrimination law. N.Y. Pub. Health L. §§ 3360(3), 3369(2). Under the New York State Human Rights Law (NYSHRL), employers therefore may not discriminate against an employee or job applicant on the basis of lawful use of medical marijuana. N.Y. Exec. L. §§ 292(21), 296(1)(a).

New York City’s Ban on Pre-Employment Testing

In April 2019, the New York City Council passed a local law amending the New York City Human Rights Law (NYCHRL) to prohibit pre-employment testing for marijuana and synthetic tetrahydrocannabinols (THC). See N.Y. Pub. Health L. §§ 3302(21), 3306(d)(21). The new law will become effective on May 10, 2020, one year after it became law.

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Domestic workers make up a significant portion of the workforce in the U.S., but few employment statutes provide protection for them against sexual harassment and other unlawful acts. New York City employment discrimination attorneys can draw on state law, which include provisions specifically covering domestic workers, but there are no nationwide protections. Last summer, members of Congress introduced the National Domestic Workers’ Bill of Rights (NDWBOR). This comprehensive bill would amend the employment discrimination, harassment, and retaliation provisions of Title VII of the Civil Rights Act of 1964. It has yet to receive a hearing in either chamber of Congress.

What Is a Domestic Worker?

New York defines a “domestic worker” as an individual “employed in a home or residence” for certain purposes, including:
– Housekeeping;
– Child care; and
– Companionship for “a sick, convalescing or elderly person.”
N.Y. Lab. L. § 2(16).

The definition does not apply to a person who is related to the employer, or who provides services “on a casual basis.” Id. State law also omits people who provide babysitting or elder care services “on a casual basis,” as described in the Fair Labor Standards Act (FLSA). 29 U.S.C. § 213(a)(15).
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