The New York State Department of Labor (“NYS DOL”) has launched a new webpage dedicated to alerting workers regarding COVID-19 related employment protections and allowing them to submit a complaint online by simply clicking the “File a Complaint” link. The new webpage encourages workers to file a complaint with the NYS DOL if their employers violate any provisions of the state’s new law providing sick leave, paid family leave and disability benefits to employees impacted by mandatory or precautionary orders of quarantine or isolation due to COVID-19, including any violations of Governor Cuomo’s recent Executive Order mandating all non-essential workers to stay home. These violations include being forced to perform work at an employer’s worksite if the employer is a non-essential business or being threatened if an employee does not work at a place other than the employee’s home. It should be noted that the NYS DOL appears to be creating the right to file a complaint on a number of issues that are not explicitly addressed within the legislation or guidance regarding the legislation and it remains to be seen whether the NYS DOL has authority to pursue alleged violations of the legislation for the reasons described below.
For instance, workers are encouraged to file a complaint using the NYS DOL’s complaint form for any of the following reasons:
- You are being forced to work onsite at a non-essential business
- You are being forced to work onsite for an essential business, however:
- You do not perform an essential function
- Your employer is making you report to a worksite when your job could be performed from home
- Your employer is not following health and safety mandates
- You are particularly frightened because you are over 70 and/or you have an underlying illness.
- Your employer has failed to pay you wages owed for hours worked, earned sick pay or paid time off
- Your employer has threatened or fired you for reasons related to COVID-19
- You qualify for COVID-19 paid sick leave and your employer refuses to pay it
- Your employer is forcing you to work when you are sick
In submitting a complaint, workers are required to identify, among other things, their employer and the number of employees employed, to state whether they are under an order to quarantine or isolate given by a government entity, identify whether the employer told them to continue to report to work, and to describe their complaint in detail. New York employers should also take note that the state’s Attorney General also directs workers to file complaints with them via e-mail or phone in its Guidance on Coronavirus Resources and Warnings about Consumer Scams page. For example, workers may submit a complaint with the AG’s office if their “employer is doing any of the following: Requiring employees to come to work even if the employer is not an essential business; Requiring employees to come to work even if they are performing business operations that are not necessary to support essential services; or Not permitting employees to telecommute or work from home whose job responsibilities would permit them to do so.”
In addition, the Empire State Development Corporation (“ESD”), New York’s development agent, has also published a FAQ regarding Executive Order 202.8 which, as we previously reported required all non-essential workers in New York to stay home. Among other things, the ESD defines an “essential business” as “any business providing products or services that are required to maintain the health, welfare and safety of the citizens of New York State.” In response to employer questions, the FAQs clarify that even for essential businesses, only those “employees that are needed to provide the products and services that are essential to provide such products or services are permitted to work at the business location.” As with previous guidance, employers must utilize telecommuting or work from home to “the maximum extent possible.” The ESD also confirmed that non-essential businesses are permitted to have a single employee attend the worksite for specific tasks such as picking up mail or other routine functions each day, as long as they are not in contact with other people. Essential businesses staying open must adhere to the requirements set forth in the Department of Health guidelines regarding cleaning and disinfection of public and private facilities. Governor Cuomo announced on Monday that the mandate requiring all non-essential workers to stay home would be extended until April 29. Please check back here for updates.