New York State COVID-19 FAQs

As New York begins to re-open and businesses start planning for restoring operations, we at Paychex remain dedicated to serving you, your employees, and your business. View guidance and best practices around some common questions related to these new challenges for New York.
new york covid faqs

As New York begins to re-open and businesses start planning for restoring operations, we at Paychex remain dedicated to serving you, your employees, and your business. Please see below for guidance and best practices around some common questions related to these new challenges for New York.

Employee Safety & Concerns

What action(s) can I take with my employees who refuse to return to work?

An employee’s reason(s) for not returning to work may make them eligible for leave required by federal, state, or local law, so it is important to engage with your employees to understand why they are refusing to return before taking any action. For example, an employee concerned about their own health condition may be entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA), state law, and/or local law, or an employee caring for a child because their child’s school or daycare is still closed may be entitled to leave under the Emergency Paid Sick Leave Act (EPSLA) and/or Emergency Family and Medical Leave Expansion Act (EFMLEA) under the Families First Coronavirus Response Act (FFCRA).

If your employees are raising reasonable COVID-19 safety concerns, those concerns should be addressed in light of CDC and OSHA guidance, as well as any state or local requirements. Employee complaints or even their refusal to work may be protected under the National Labor Relations Act, even if your workplace is not unionized.

Additionally, if an employee refuses a job offer for rehire that fits their previous occupational experience without due cause, or simply because they’re making more money on Unemployment Insurance (UI), they may be disqualified from receiving UI benefits, and employers should consider documenting such refusals on their UI claims received from the state. Note: Employers may be negatively affected if they do not report fraudulent cases. Please review Section 593 of the State Unemployment Insurance Law for more information.

Employers who qualified for Small Business Administration (SBA) loans should ensure that they have made a good faith, written offer of rehire (for the same salary/wages and same number of hours), and the employee’s rejection of that offer must be documented by the borrower to qualify for an exception to a potential reduction of their forgiveness amount based on Full Time Equivalent (FTE) employees. Employees and employers should be aware that employees who reject offers of re-employment may forfeit eligibility for continued unemployment insurance compensation.

Always discuss these issues with an HR professional and/or your legal counsel before making employment decisions such as terminations or imposing any other discipline.

What personal protective equipment such as face masks, face shields, or other resources must NY employers legally provide for those who return to work?

On April 14, 2020, New York established interim guidance for Executive Order 202.16, which mandated that face coverings were to be worn by all essential business employees and state and local government agencies/authorities when in direct contact with customers or members of the public. If either state/local law or the employer requires employees to wear protective equipment in the workplace, such as face masks, the employer is responsible for paying for and providing this equipment. Additional safety requirements may also apply if your business is already subject to OSHA’s Bloodborne Pathogens standard or other federal, state, or local industry-specific requirements.

Employers can also require employees to wear additional safety equipment like face/eye protection, gowns, gloves, or other equipment suggested by OSHA, and should review the guidance published on OSHA’s website for recommended practices.

If some individuals cannot wear masks due to medical conditions and/or religious accommodations, employers should have discussions with these individuals about further accommodations that can be explored and/or request any appropriate documentation that may be needed.

As an employer in NY, how do I properly conduct COVID-19 temperature testing in the workplace? Who can perform these tests, and how should it be documented?

Temperature testing/screening can be conducted on-site at businesses to determine if an individual has a fever. Based on CDC guidance, a fever is one of many symptoms of COVID-19 and conducting temperature screenings may be one way to potentially protect your employees and business. However, a fever does not always indicate COVID-19 and some with COVID-19 never experience a fever. Therefore, it is one method to consider, but alone may not necessarily be the most effective way to protect a work environment. Additional safety methods to consider may include the reorganizing of work spaces to ensure individuals are spaced six or more feet apart, implementing remote work capabilities, if applicable, and/or staggering you staff to work on specified days.

The Equal Employment Opportunity Commission (EEOC) considers temperature testing/screening as a “medical examination” and allowance is only due to the CDC and state/local authorities determining COVID-19 is community spread and a direct threat.

Before conducting temperature testing/screening, be sure to consult with an HR professional and/or your legal counsel to ensure compliance with state or local law.

If an employer plans to implement temperature screenings at their business after discussing their options with an HR professional or legal counsel, they should consider:

  • Who will take temperatures and how that person will be protected from exposure,
  • Where temperatures will be taken,
  • When temperatures will be taken,
  • How temperatures will be taken,
  • How the temperature screening equipment will be sanitized,
  • Will the information/readings will be recorded,
  • If recording this information, how will it be recorded and confidentially maintained separate from the employees’ personnel files,
  • What steps to take for a high temperature,
  • What safety protocols will be put in place and how they will be communicated to the screener(s) and employees,
  • Whether the time waiting for and undergoing the screening process is compensable time.

All temperature screenings should be administered based on legitimate and nondiscriminatory business needs and should be as non-invasive as possible. Employers should also consider whether a third-party vendor will be used to conduct such screenings.

For more information, review our WORX article on reopening America, visit the Paychex COVID-19 Help Center, review the New York State Department of Health “Protocols for Essential Personnel to Return to Work Following COVID-19 Exposure or Infection” advisory, and follow safety guidance provided by OSHA, the CDC, and your state or local agencies.

As a NY employer, what are my obligations regarding “Matilda’s Law”?

“Matilda's Law” was announced by Governor Andrew Cuomo as part of the New York State on PAUSE executive order that provides general guidance on how to help protect individuals in New York State that are classified as at higher risk, or uniquely vulnerable to COVID-19-related health complications. These types of individuals are generally defined as those who are 70-years-of-age or older, those with compromised immune systems, and those with underlying illnesses, such as respiratory problems or cancer.

The executive order recommends that vulnerable populations:

  • Stay home, remain indoors, and reserve visitations for emergency-related issues
  • Avoid visiting households with multiple people
  • Avoid using public transportation, as possible

Additionally, “Matilda's Law” instructs visitors and/or aides to:

  • Wear a face mask when in close proximity of vulnerable individuals
  • Practice social distancing by staying at least six feet away from vulnerable individuals
  • Get pre-screened before visitation with vulnerable individuals. Screenings include taking temperatures and restricting any visitor exhibiting flu-like symptoms

If you’re an employer of an essential business or a business that is currently part of a re-opening phase and have employees or volunteers who fall into the at-risk category defined under “Matilda's Law”, these individuals can legally still be required to work, however, state guidance strongly recommends that employers try to encourage remote work, if possible. In addition, New York State law also requires employers to provide appropriate accommodations and protective masks for any essential worker, regardless of whether they are an at-risk individual. Appropriate accommodations may also include providing additional protective equipment, if necessary, and/or changing the employees specific work locations to help limit physical interaction with people.

In addition, if an at-risk employee is concerned about their own health condition, they may also be entitled to a reasonable accommodation under the Americans with Disabilities Act. If an employee raises reasonable COVID-19 safety concerns, those concerns should be addressed in light of CDC and OSHA guidance, as well as any state or local requirements. Employee complaints or even their refusal to work may be protected under the National Labor Relations Act, even if your workplace is not unionized.

Be sure to consult with an HR professional and/or your legal counsel to ensure compliance with state or local law before making staffing decisions.

For more information, please visit the New York State on PAUSE website.

Where can I find further information on the NY WARN Act as it pertains to my business?

The New York State Worker Adjustment and Retraining (WARN) Act is state legislation that requires covered businesses to provide employees, employee representatives, local workforce development boards, and the Department of Labor with advanced notice/warning of certain types of business-related closures and layoffs.

For more information on the NY WARN Act, please visit the New York State Worker Adjustment and Retraining Notification website. Additional resources on this site include a WARN Fact Sheet, WARN Notices, and a full overview of the WARN law and regulations.

If an employee contracts COVID-19 after returning to work, is it covered by Workers’ Compensation insurance?

Workers' Compensation insurance protects employees from on-the-job injuries and illnesses, however, it doesn't usually cover diseases that are unrelated to employment. If an employee contracts COVID-19 because of the nature of their work, they may be provided coverage. Some states have also proposed changes that would broaden these rules and/or provide additional coverage. Be sure to consult with an HR and/or insurance professional for more information, or visit the New York State’s Workers’ Compensation Board website, or their COVID-19 Resource Page.

PPP Loans

As an employer, will my Paycheck Protection Program (PPP) loan forgiveness amount be reduced if I laid off an employee, offered to rehire them, but they declined that offer?

No. Reductions to loan forgiveness for maintaining certain FTE and wage levels may not factor in for these individuals. However, employers who have utilized a Paycheck Protection Program (PPP) loan must have provided the laid-off employee with a good faith, written offer of rehire (for the same salary/wages and same number of hours), and the employee’s rejection of that offer must be documented by the borrower to qualify for an exception to a potential reduction of their forgiveness amount based on FTE employees. Employees and employers should also be aware that employees who reject offers of re-employment may forfeit eligibility for continued unemployment insurance compensation.

Note: An “in good faith” written offer of rehire should be for the same wage and hours, or this exception may not be applicable. Additionally, if an employer replaces or fills this position with another worker, they may not discount this individual.

For more information, please review the Paycheck Protection Program (PPP) Loans FAQs.

How do I calculate FTE equivalent headcount if employees decline coming back to work after the 8-week period?

If an employee declines to return to work after the eight-week period, employers would exclude these individuals when calculating any reduction to their PPP Loan Forgiveness. However, as mentioned in the question above, employers should make any offers in writing and should properly document any employee’s rejection to return to work. 

Note: An “in good faith” written offer of rehire should be for the same wage and hours, or this exception may not be applicable. Additionally, if an employer replaces or fills this position with another worker, they may not discount this individual.

For more information, please see the PPP Loan section of the Paychex Return to Work FAQs, check out the Paycheck Protection Program (PPP) Loan Forgiveness Estimator, or visit the U.S. Small Business Administration’s Paycheck Protection Program website.

Staffing

Are companies obligated to ensure the same exact job to an employee who has taken leave under the FFCRA?

The U.S. Department of Labor’s Wage and Hour Division (WHD) indicates that under FFCRA, employers are generally required to provide the same or comparable job to an individual who returns to work following leave. In addition, an employer is prohibited from firing, disciplining, or otherwise discriminating against an employee because he/she took paid sick leave or expanded family and medical leave. 

Despite this, these employees may not be protected if general personnel actions, (i.e., layoffs), would have affected them regardless of whether leave was taken. In short, employers may be able to lay off employees but only for legitimate business reasons, such as a closure of a worksite location, however, employers must be able to prove that these employees would have been laid off regardless of whether they had taken leave. Employers are encouraged to consult with their HR professional or legal counsel before taking employment action(s) against employees who are on a protected leave.

Employers can also refuse to place individuals back to work in the same position if they are considered a highly compensated key employee as defined under the FMLA, or if the employer has fewer than 25 employees, and the employee in question took leave to care for a child due to the closure of a school or daycare, and the following conditions exist:

  • An employee’s job no longer exists due to financial or operating conditions that affect employment and due to COVID-19-related reasons during the period of leave.
  • An employer made and can prove that they made reasonable efforts to restore an employee to the same or equivalent position.
  • An employer makes reasonable efforts to contact an employee if a similar position becomes open.
  • An employer continues to contact an employee for one year beginning on the date the COVID-19-related leave/reason concludes or the date 12 weeks after the leave began, whichever is earlier.

For more information, please review the Employee Protections under the Family and Medical Leave Act fact sheet.

Does an employee qualify for EFMLA leave even if they have already used some or all of their leave under the “traditional” FMLA?

Regardless of the amount of leave an employee may have already taken under the FMLA, those who are eligible may still be entitled to paid sick leave under the EPSLA for a qualifying COVID-19-related reason.

Despite this, if an employer was covered by the FMLA prior to April 1, 2020, an employee’s eligibility for EFMLA would depend on the amount of FMLA leave that was already used during the 12-month period their employer utilizes for FMLA leave. An employee may take a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period. If an employee has taken some, but not all 12 workweeks of his/her leave under FMLA during the current 12-month period determined by the employer, he/she may take the remaining portion of leave available. If an employee has already taken 12 workweeks of FMLA leave during this 12-month period, he/she may not take additional expanded family and medical leave.

Please read an overview of the Paid Leave Under the Families First Coronavirus Response Act, or visit the Department of Labor’s FFCRA Questions & Answer website and COVID-19 and the Family and Medical Leave Act website for more information.

Is paid sick leave under the EPSLA in addition to what is currently offered and what are the rules around this?

Paid sick leave under the EPSLA is provided to eligible employees in addition to other leaves that may already be provided under federal, state, and/or local law, as well as what is covered under an employer’s existing policy.

For more information, please read an overview of the Paid Leave Under the Families First Coronavirus Response Act, or visit the Department of Labor’s Temporary Rule: Paid Leave under the Families First Coronavirus Response Act resource page.

How do I address an employee who is unable to return to work due to a lack of childcare?

If you employ less than 500 employees, individuals who cannot work due to COVID-19-related reasons may be eligible for leave under the FFCRA. If your employees are unable to work because their child’s school or daycare provider is closed, they may be eligible for two weeks of EPSL and an additional 10 weeks of EFML. If you allow your employees to telework, they may be able to telework rather than take this leave. However, if they cannot take advantage of a teleworking option due to their childcare obligations, they may still be eligible for EPSL and/or EFMLA leave.

Employees who need to stay at home with children due to a COVID-19 disruption (i.e. closure of school or daycare) may also be eligible for unemployment benefits or reduced benefits; however, eligibility may vary by state and is determined on a case-by-case basis. However, if they’re already receiving paid leave benefits, either under the FFCRA, a state or local law, or under their employer’s policy (i.e., using sick leave), they may not also be eligible for unemployment benefits.

For more information on the FFCRA and available leaves, please review the Families First Coronavirus Response Act: Questions and Answers.

What communication is required when furloughing an employee? Is an end date needed? Can employees still work on occasion?

A furlough is a temporary measure that can act as an alternative to laying off an employee. With furloughs, employers can cut business costs by keeping workers employed, but can either pay them less, or not at all during a specific length of time. An example of this can be some seasonal employees. Furloughs may have specific end dates, however, employment statuses, such as if an employee is exempt or non-exempt, may also affect the type of furlough and any corresponding details. Generally, furloughed employees should not work, unless their hours have been reduced. The determination of how to pay furloughed employees if they do perform work during a furlough may depend on their exempt status. Be sure to consult with an HR professional and/or your legal counsel to ensure compliance with state or local law.

Additional Resources

Where can I find return to work information, safety guidelines, and regulatory updates?

As multiple states begin resuming business operations, Paychex remains dedicated to serving you, your employees, and your business. That’s why we’ve developed several online resources to help you remain up to date on your state's ever-evolving policies and executive orders related to the COVID-19 pandemic and return to work protocols.

Paychex Return to Work Resources:

Paychex Safety/Legal Resources:

Paychex Pre-Recorded Webinar’s:

Additional Resources:

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