What Can New York Workers Do If Their Employer Does Not Follow Coronavirus Guidelines?

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.

Enforcement of New York Executive Orders

State law provides civil and criminal penalties for violations of the EOs. It does not specifically provide workers with a cause of action if a violation by an employer causes them harm. EO 202.8, issued on March 20, stated that violations could result in civil penalties of up to $2,000, $5,000 for subsequent violations involving the same actions, or $10,000 if a violation causes “serious physical harm.” EO 202.14 states that any violation on or after April 7 may be penalized as a willful violation, which is a misdemeanor offense.

EO 202.11, dated March 27, declares that local and state agencies may enforce limits on the number of people who may occupy a building or other space under state building codes. These laws impose civil penalties for violations, but no private causes of action.

Federal Law Protection

The Occupational Safety and Health (OSH) Act might offer a way for workers to safeguard their rights. Under the “general duty clause,” employers must provide “a place of employment” that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The Occupational Safety and Health Administration (OSHA) has issued guidance for safeguarding the workplace against the coronavirus and COVID-19, and also directs employers to guidelines provided by the Centers for Disease Control and Prevention (CDC).

While the OSH Act does not provide workers with a private cause of action, it offers protection for whistleblowers who report unsafe working conditions. This could include “non-essential” workplaces that remain open, or workplaces that do not follow best practices for reducing the risk of COVID-19.

The employment attorneys at Phillips & Associates advocate for New York City workers who have experienced discrimination and other unlawful employment practices. To schedule a free and confidential consultation to discuss your case, please contact us today online or at (212) 248-7431.

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