Governor Cuomo announced a timeline for reopening New York state, which may include allowing “low-risk” upstate businesses to open as early as May 15th. Meanwhile, states like Georgia, Colorado, and Minnesota, have already pushed ahead with reopening businesses such as restaurants and barbershops amid a patchwork of rules about what businesses were allowed to reopen.
As shut downs end and economies re-open, you may be confronted with the question: do you have to return to work?
For many, the question will be a financial one. Unemployment claims have hit a historic high, and you may be relying on either state unemployment insurance or the temporary federal Pandemic Unemployment Assistance program to support yourself. Both programs cover workers who have been unable to work because of COVID-19 for a myriad of reasons. Unfortunately, if your workplace reopens, it is unlikely that you will continue to be eligible for either program. The U.S. Department of Labor made clear, in guidance issued on April 27, 2020, that fear of the virus alone is not sufficient for Pandemic Unemployment Assistance; when claiming your weekly unemployment benefits, you have to certify that you are available and able to work and have not turned down a job offer. If your workplace reopens and you refuse an offer of employment, you will likely not be able to certify for benefits, barring future guidance from the state.
In some states, Department of Labor officials have also made it clear that fear of the virus is not a viable reason for turning down an offer of employment; in Georgia, Labor Department spokeswoman Kersha Cartwright stated that feeling unsafe going back to work because of the virus isn’t an acceptable reason to claim unemployment assistance.
The federal Department of Labor has released guidance that independent contractors and self-employed individuals may qualify for the program based on a substantial reduction in the amount of work available, which allows for some discretion regarding when to return to work. That said, states including Georgia and Maine have discussed the possibility of creating an audit system to ensure that independent contractors are returning to work when work becomes available.
While fear of the virus alone is not a sufficient reason to turn down reemployment; if you are a high-risk individual, you can still ask your employer for a reasonable accommodation. Employers are prohibited from discriminating based on disability under city, state, and federal law. New York City has an expansive definition of disability that includes any physical, medical, mental, or psychological impairment, or a history or record of such impairment, which is inclusive of a full range of sensory, mental, physical, mobility, developmental, learning, and psychological disabilities, whether they are visible and apparent or not. The New York City Commission on Human Rights has affirmatively stated that being sick with COVID-19 likely qualifies as a disability, and it is possible that health conditions that put you at a higher risk would also qualify.
New York City has a similarly expansive understanding of an employer’s duty to accommodate your disability or provide what is called a reasonable accommodation. Employers are required to engage in a cooperative dialogue with you about your request; a request for a reasonable accommodation could range from employers providing more protective equipment, as suggested by the OSHA guidelines, to an extended leave of absence. The New York City Commission on Human Rights has noted that employers continue to have a duty to provide reasonable accommodations, even during the pandemic. If you believe your employer is failing to meet this duty, you can contact the Commission by filling out their online form or calling 311 and asking for “human rights.”
Finally, employers will likely still be liable in personal injury and workplace safety suits if workers or customers become ill with COVID-19 because businesses opened prematurely. While some states, including New York, have made moves to shield essential businesses like hospitals from this litigation, these suits primarily arise under state law. As a result, Congress or the Trump administration would struggle to make sweeping changes without sparking significant debate about federalism and states’ rights.