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Coronavirus and the Building Workplace: Are You Prepared? Part 6 Tuesday, April 21, 2020

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Page 1: Coronavirus and the Building Workplace: Are You Prepared? Part 6€¦ · 7 Coronavirus and the Building Workplace: Are You Prepared? Part 6 Tuesday, April 21, 2020. New York’s Lawsuit

Coronavirus and the Building Workplace: Are You Prepared? Part 6

Tuesday, April 21, 2020

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Agenda

1. Recent Coronavirus Legislation and Executive Orders‒ Federal and State Leave Legislation and Guidance ‒ Workforce Reduction and Mask Orders ‒ OSHA Guidance

2. New RAB/32BJ Agreements‒ Extension of Previous RAB/32BJ Agreements ‒ Window Cleaning and Security Agreement Extensions‒ Shared Work MOA‒ AB Time MOA

3. Common Questions Regarding Coronavirus and the Building Workplace4. Additional Resources5. Participant Questions

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 62

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Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 63

Recent Coronavirus Legislation and Executive Orders

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Federal Leave Legislation

• Families First Coronavirus Response Act.‒ Effective April 1, 2020. Limited stay of enforcement expired April 17.

• (1) Emergency Paid Sick Leave Act.‒ Employers with less than 500 employees must provide full-time employees with 80 hours

of paid sick leave for certain purposes related to the Coronavirus outbreak.‒ Leave is fully paid, or at a rate of 2/3 of the regular rate, depending on the reason for leave.

• (2) Emergency Family & Medical Leave Expansion Act.‒ Employers with less than 500 employees must provide 12 weeks of leave to care for a

child whose school/day care is closed due to a public health emergency. ‒ First 10 days may be unpaid; after which employees must be paid 2/3 of their regular rate.

• (3) Tax Credits for Paid Sick and Paid Family and Medical Leave.‒ CARES Act: Employers will receive a tax credit in advance, rather than be reimbursed.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 64

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Federal Leave Legislation – DOL Regulations

• The Department of Labor issued temporary regulations on April 1. ‒ Some of these regulations were modified on April 10.

• Documentation necessary for leave: ‒ Employees: Must provide certain information/documentation to employers, depending

on the reason for taking leave. ‒ Employers:

‒ (1) Should retain all documentation provided by employees for four years. ‒ (2) May ask employees for additional information that will support a request for tax credits.

‒ If an employee fails to comply, the employer is not required to provide leave. ‒ (3) Should report their total qualified leave wages and the related tax credits for each

quarter on their federal employment tax return.‒ (4) Must retain Form 7200 and any other applicable IRS filings requesting the tax credit.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 65

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Federal Leave Legislation – DOL Regulations (cont’d)

• Notice of need for leave:‒ Advance notice is not required.‒ Employers can only require notice after the first workday the employee takes leave. ‒ Employers should allow employees who fail to give proper notice an opportunity to

provide required documentation before denying the request.

• Shelter-in-place orders:‒ Employees who are unable to work because they are subject to a federal, state or local

quarantine or isolation order may be eligible for leave. ‒ The regulations broadly define a quarantine or isolation order to include shelter-in-place

and stay-at-home orders.‒ This does not necessarily mean a state workforce reduction order qualifies.

‒ Leave is not available if the employee is able to work or telework.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 66

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Federal Leave Legislation – DOL Regulations (cont’d)

• Seeking medical diagnosis:‒ If an employee is “seeking a medical diagnosis,” leave is generally not available if the

employee is: (1) able to telework, and (2) not experiencing serious COVID-19 symptoms.

• Effect of leave previously provided voluntarily: ‒ Employers who already offered leave voluntarily must still provide emergency paid sick

leave and family medical leave benefits, even to employees who took the employer’s voluntary leave.

‒ Employers must pay employees for leave already taken, but they are not required to continue offering the leave.

• Intermittent leave: Available for certain qualifying reasons if the employer and employee agree. ‒ No written agreement is required, but it is advised as a best practice.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 67

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New York’s Lawsuit against the Department of Labor

• On April 14, New York brought suit against the Department of Labor, challenging that the FFCRA regulations violate the Act or exceed the DOL’s statutory authority.

• The lawsuit specifically challenges:‒ Work availability restrictions that deny paid sick leave and emergency family leave if the

employer does not have work for the employee. ‒ The definition of “health care provider,” which the lawsuit alleges is inconsistent with the

plain language of the statute. ‒ The conditions attached to intermittent leave.‒ The requirement that certain documentation be provided as a precondition to taking leave.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 68

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New York Leave Legislation

• Large employers (100+ employees) must provide 14 calendar days of paid leave to employees subject to a quarantine order by a public official.‒ Benefits are paid at the employee’s regular rate.

‒ Employees who work a fixed schedule or are paid a salary should receive their normal pay. ‒ Part-time employees should be paid for the amount of time that they would have otherwise

received pay had the employer’s operations continued in its normal course.‒ Smaller employers must provide a shorter amount of paid leave or only unpaid leave.

‒ Employees can supplement paid leave with NY Paid Family Leave and disability benefits.‒ Employees cannot be fired for taking leave.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 69

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New York Leave Legislation (cont’d)

• Leave is not available to employees:‒ (1) Who are asymptomatic and capable of working; ‒ (2) Who voluntarily traveled to a country with level 2 or 3 CDC health notice (if travel was

not at direction of employer and employee was provided notice of CDC notice);‒ (3) Who voluntarily quarantine; and

‒ Only available when an employee is under a quarantine order issued by the State, NYS Dept. of Health, local Board of Health, or any government entity authorized to issue such order.

‒ (4) Of employers that temporarily close or go out of business.

• Payment must be made in the paycheck for the pay period leave is taken. • Employers are required to provide leave separate from any existing accruals.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 610

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New York Leave Legislation (cont’d)

• Small employers (<100 employees) must provide leave for employees to care for a child who is subject to a quarantine order by a public official.‒ Leave is paid at 60% of the employee’s average weekly wage, up to $840.70 per week

via NY Paid Family Leave benefits. ‒ Employees apply for benefits through the employer’s insurance carrier.

‒ Employers must complete their portion and return the application within three business days. ‒ Employees cannot be fired for taking leave.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 611

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New York Executive Orders

• Effective March 22, only essentialbusinesses may utilize an in-person workforce. ‒ Businesses must utilize teleworking arrangements

to the extent possible. ‒ Businesses must implement social distancing

rules.

• These restrictions will be in effect until at least May 15, unless extended further.

• Residential and commercial evictions and foreclosures were suspended on March 20 for 90 days.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 612

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New York Executive Orders (cont’d)

• The following have been deemed essential:‒ Essential services necessary to maintain the safety, sanitation and essential

operations of residences or other businesses. ‒ Including security, building cleaners, general maintenance, and residential moving services.

‒ Essential and emergency construction. See NYS and DOB Guidance. ‒ Essential services.

‒ Including trash and recycling, mail and shipping, and building cleaning and maintenance. ‒ New: Maintenance for the infrastructure of the facility or to maintain or safeguard materials or

products therein. ‒ New: Landscaping, but only for maintenance or pest control and not cosmetic purposes.

• Others may be deemed essential by requesting an opinion from the State.

• Note: Only those that are needed to provide the essential product or service are permitted to be present.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 613

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New York Executive Orders (cont’d)

• All employers must provide and require employees to wear face coverings when in direct contact with customers or members of the public. ‒ Face coverings must be provided at the employer’s expense. ‒ Effective Wednesday, April 15.‒ Penalties for non-compliance:

‒ $2,000 max. fine per violation. ‒ $5,000 max. fine for subsequent violations that pose a serious threat to an individuals’ health or

safety. ‒ Criminal penalties for willful violations.

• Face coverings over the mouth and nose are required when in public and unable to maintain social distancing, and when using public and for-hire transportation. ‒ Effective Friday, April 17. ‒ Will be enforced with civil, but not criminal penalties.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 614

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OSHA Interim Response Plan

• On April 13, OSHA issued an interim enforcement plan for handling COVID-19 related workplace safety incidents. ‒ Intended to be time-limited to the pandemic, but takes effect immediately.

• Over the past few months, OSHA has seen complaints involving: ‒ A lack of PPE – such as respirators, gloves, and gowns. ‒ A lack of training on appropriate standards.‒ Possible COVID-19 illnesses in the workplace.

• Employers should consult the most current CDC guidance to assess potential workplace hazards and to evaluate the adequacy of protective measures.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 615

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OSHA Interim Response Plan (cont’d)

• Contains instructions for prioritizing workplace inspections:‒ Fatalities and imminent danger exposures will be prioritized for inspection. ‒ Directors should assess whether an in-person inspection is even necessary.

‒ May not be necessary for medium and low-risk worksites (those with frequent close contact with people who may be – but are not known to be – infected with COVID-19).

‒ In such cases, OSHA will use the informal procedures for investigating alleged hazards (e.g., requesting that employers investigate themselves, report their findings, provide supporting documentation, and describe remedial steps).

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 616

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New OSHA Reporting and Recording Requirements

• Coronavirus is reportable when an employee is infected in the workplace. ‒ If the employee is hospitalized, a report must be made within 24 hours.‒ If an employee dies, a report must be made within eight hours. ‒ If an employer is not initially aware of such as case, a report to OSHA must be made

within the appropriate time period after the employer learns that a reportable event occurred.

• On April 10, the US DOL released guidance on recording COVID-19 cases. ‒ Employers in emergency response, healthcare, and correctional facilities must continue to

record as normal. ‒ Other employers must record only if:

‒ (1) There is objective evidence that a COVID-19 case may be work-related; and‒ (2) The evidence was reasonably available to the employer.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 617

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New OSHA Reporting and Recording Requirements (cont’d)

• Employers must record only if:‒ (1) The case is a confirmed case of COVID-19;‒ (2) The case is work-related; and

‒ An injury or illness is work-related if an event or exposure in the work environment either:‒ (1) Caused or contributed to the resulting condition; or ‒ (2) Significantly aggravated a pre-existing illness.

‒ Work-relatedness is typically presumed for illnesses resulting from events or exposures occurring in the work environment.

‒ (3) The case involves one or more of the general recording criteria (e.g., death; one or more days away from work; restricted work or transfer to another job; medical treatment beyond first aid; or a significant illness diagnosed by a health care professional).

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 618

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Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 619

RAB/32BJ Agreements

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MOA Extending Previous RAB/32BJ Agreements

• The COVID-19 MOA and Tolling Agreement will remain in effect until May 18, 2020 or 14 days following the lifting or substantial modification of the PAUSE order, whichever is earlier, subject to the following modifications:‒ Suspension of bumping rights and termination pay shall continue through May 18.‒ If a reduction-in-force is necessary, employers must use best efforts to provide advance

notice to the Union (at least 7 days, if practicable). ‒ The period for recall rights for employees laid off due to COVID-19 on or after March 6

shall begin to run May 18, subject to further extension.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 620

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MOA Extending Previous RAB/32BJ Agreements (cont’d)

• Other agreements will continue in accordance with their terms for the same period:‒ Expanded Use of Part-Time Employees MOA ‒ Better Terms and Conditions MOA ‒ Temporary Employees MOA ‒ Scheduling MOA (providing for 12 hour shifts)‒ Payout of 2020 Vacation to Laid-Off Employees Agreement‒ Shared Work MOA‒ AB Time MOA

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 621

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RAB/32BJ Window Cleaning Extension

• The 2016 Window Cleaners Agreement expired on December 31, 2019.‒ The parties commended negotiation over a successor CBA in February. ‒ However, negotiations were interrupted by the COVID-19 pandemic.

• The parties agree to extend the terms of the agreement, subject to the following modifications: ‒ Effective January 1, 2020, employers shall contribute:

‒ (1) To the 32BJ Health, Pension, SRSP and Legal Service Funds at the rates set forth in the 2020 Contractors Agreement; and

‒ (2) To the Thomas Shortman Training Fund at a rate of $208/employee/year.

• The parties agree to resume negotiations within 90 days of the lifting of the shelter in place orders governing NYC.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 622

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RAB/32BJ Security Extension

• The 2016 Security Officers Agreement expires on April 30, 2020.

• The parties agree to extend the terms of the agreement through December 31, 2020 subject to the following modifications:‒ Effective July 1, employee wages and minimum rates will increase by $.45/hour for

Security Officer I, II, and III classifications. ‒ $.38/hour increase for Security Officer I classifications employed less than 36 months.‒ If shelter in place orders in NYC are not lifted by July 1, employers may delay wage increases

until November 1, provided that they are retroactive to July 1. ‒ Vacation relief employee are not eligible for Benefits Fund coverage during the first five

months of employment. ‒ The Most Favored Nations clause in 24.2 is amended to only apply to contracts entered

into on or after October 1, 2020 (as opposed to December 31, 2018).

• The parties agree to resume negotiations on or before October 15, 2020. Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 623

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RAB/32BJ Shared Work Program MOA

• New York State provides financial benefits to employees of employers who participate in approved Shared Work Programs.‒ These programs aim to avoid layoffs through reduced work schedules for employees.

• RAB and 32BJ have agreed that where employers would otherwise layoff or furlough employees for at least 15 days, they may opt to retain the employees and reduce their hours by between 20% and 60%. ‒ Employer will continue to pay benefit fund contributions in whole. ‒ The employer must submit a Shared Work Plan to the NYDOL. ‒ There are protections for employees. ‒ The employer must provide certain notice to the Union.

• The Union will consent to the Shared Work Program application and other documents submitted by the employer.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 624

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RAB/32BJ AB Time Agreement

• Employers may direct employees to perform additional work in areas assigned to an absent coworker so long as:‒ (1) There is significant under-utilization of the building due to occupants of the building

working remotely;‒ (2) Employees who are asked to perform the additional work have been performing less

work than they were before the pandemic and the additional work dos not result in an unreasonable workload; and

‒ (3) The employer provides the Union prompt notification of its intent to cover for the absent worker and information regarding the building’s occupancy.

• If workers received or were promised AB time prior to the execution of this agreement (on April 11), they are entitled to those payments.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 625

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Interaction between Emergency Leave Laws and RAB/32BJ MOA

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 626

Reason Applicable LeaveGovernment – Subject to quarantine / isolation order Federal Paid Sick Leave1

New York Paid Sick LeaveMOA (pursuant to Paragraph 3)

Medical – Advised to self-quarantine by health care provider

Federal Paid Sick Leave1

MOA (pursuant to Paragraph 3)Medical – Experiencing symptoms and seeking diagnosis

Federal Paid Sick Leave1

MOA (pursuant to Paragraph 3)

Employer – Directed to self-quarantine due to worksite exposure MOA (two weeks of PTO without reduction of any existing

PTO entitlements pursuant to paragraph 3)

Employee unable to work due to employee isolation:

[1] Pay is no less than EE’s regular rate of pay (as defined under FLSA), up to $511/day and $5,110 in aggregate.

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Interaction between Emergency Leave Laws and RAB/32BJ MOA

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 627

Reason Applicable LeaveGovernment – Subject to quarantine / isolation order Federal Paid Sick Leave2

New York Paid Family LeaveMOA (pursuant to Paragraph 3)

Medical – Advised to self-quarantine by health care provider

Federal Paid Sick Leave2

New York Paid Family Leave3

MOA (pursuant to Paragraph 3)Medical – Experiencing symptoms & seeking diagnosis MOA (pursuant to Paragraph 3)Child Care Provider – Precautionary closure Federal Paid Sick Leave2

MOA (available pursuant to Paragraph 2)Child Care Provider – Government has declared public health emergency causing closure

Federal Paid Sick Leave2

Federal Family Medical Leave4

MOA (available PTO pursuant to Paragraph 2)

Employee unable to work due to care for another:

[2] Pay is no less than 2/3 EE’s regular rate of pay, up to $200/day and $2,000 in aggregate.[3] If the family member has been diagnosed with COVID-19, from 3/27/2020 to 6/25/2020, EE may be eligible for up to 10 weeks of NYPFL (60% of EE’s avg. weekly wage, capped at $840.70).[4] 2/3 pay benefit is capped at $200/day and $10,000 in aggregate.

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Tuesday, April 21, 202028

Common Questions Regarding Coronavirus and the Building Workplace

Coronavirus and the Building Workplace: Are You Prepared? Part 6

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Does Leave “Stack” under Federal Law, State Law, and CBAs?

• CBA Leave and Statutory Leave: ‒ Employers are required to provide NY Emergency Leave separate from existing accruals.‒ Federal Emergency Paid Sick Leave is in addition to other leave entitlements.

‒ But an employer and employee may mutually agree to use preexisting leave to supplement paid sick leave, up to the employee’s normal earnings.

‒ Employees may elect – or employers may require employees – to use existing leave entitlements concurrently with Emergency Family and Medical Leave.‒ This resolved previously contradictory guidance.

• Federal Leave and New York State Leave.‒ Employees in New York are eligible to receive the difference between what the federal

legislation provides and what is available under the state law.‒ However, the reason for leave must be overlapping.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 629

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What Are the Best Practices for Residential and Commercial Buildings?

• Frequently disinfect work areas, door handles, railings, etc.

• Provide PPE (e.g., face masks, gloves) as recommended by health authorities or as required by Executive Order.

• Reduce staff density where possible. ‒ Consider adjusting schedules to avoid overlap. ‒ Be sure to seek appropriate approval.

• Consider covering staff transportation/parking costs to reduce reliance on public transportation.

• To the extent possible, close common areas to avoid gatherings.‒ If these areas remain open, they should be cleaned and disinfected frequently, and social

distancing should be maintained.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 630

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What Are the Best Practices for Residential and Commercial Buildings? (cont’d)

• Maintain social distancing.‒ Place a marker where residents/visitors should stand while interacting with employees. ‒ Consider using door stoppers (weather permitting), or having residents open doors.‒ Restrict the number of people on elevators (e.g., one household). ‒ Develop protocols for package pick-up that maintain social distancing.

‒ Building staff may consider dropping deliveries off at tenants’ doors. ‒ Consider how to handle food delivery so that delivery people are not walking throughout the

building.

• Limit repairs in residences to emergencies only. If repairs are necessary:‒ (1) Before entering, confirm that the tenant is not sick. Reschedule if possible. ‒ (2) Maintain social distancing (require residents to remain in another room). ‒ (3) Provide maintenance staff with appropriate PPE and require hand washing.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 631

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What Are the Best Practices for Residential and Commercial Buildings? (cont’d)

• Encourage residents to postpone moves, if possible. If a move is necessary:‒ (1) Ensure moves adhere to social distancing requirements. ‒ (2) Before and after the move, clean hallways, stairways, etc. ‒ (3) Require that movers use PPE and frequently wash hands.‒ (4) Consider authorizing moves during off hours.

• Most residential and commercial buildings are not required to notify the health department if someone in the building tests positive. ‒ However, you may want to contact them for help coordinating a response.

• If there is a fire alarm or other emergency, occupants should follow standard protocols, but maintain social distancing to the extent possible.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 632

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When Can an Employee Return to Work After COVID-19?

• According to guidance from the NY Health Department, essential personnel with a confirmed OR suspected case of COVID-19 can return to work if all of the following conditions are met:

1. Working from home would adversely impact essential services or functions.2. The person has:

‒ Maintained isolation for at least 7 days after illness onset;‒ Not had a fever for at least 72 hours without the use of fever reducing medications; and ‒ Improving symptoms.

3. Personnel who are recovering from COVID-19, and return to work, must wear a facemask for 14 days following onset of illness. ‒ Note: Facemasks may be required for a longer period in accordance with NY Executive Orders.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 633

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When Can an Employee Return to Work After COVID-19?

• According to guidance from the NY Health Department, essential personnel who have been exposed to a confirmed or suspected case of COVID-19 can return to work if:

1. Working from home would not be feasible;2. Personnel are asymptomatic;3. Personnel quarantine themselves when not at work;4. Personnel undergo temperature monitoring and symptom checks upon arrival to work

and at least every 12 hours while at work, and self-monitor twice a day when at home;5. Personnel required to interact with individuals within 6 feet should wear a facemask

while working for 14 days following the last exposure;6. Personnel whose job duties permit a separation of greater than 6 feet should have

environmental controls in place to ensure adequate separation is maintained;7. If symptoms develop while working, they should immediately isolate at home; and8. Testing should be prioritized for essential personnel with symptoms.

Tuesday, April 21, 2020Coronavirus and the Building Workplace: Are You Prepared? Part 634

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Can I Screen Employees Entering the Workplace?

• Typically, temperature checks and disability-related inquiries are prohibited by the Americans with Disabilities Act (“ADA”).

• For the duration of the outbreak, an exception applies that allows employers to take the body temperature of employees. ‒ Employers should do so in a way that protects privacy and adheres to social distancing

recommendations. ‒ Be aware that some people with COVID-19 do not have a fever.

• In addition, employers may ask employees about other COVID-19 symptoms. ‒ Examples: Fever, cough, breathing difficulties, GI problems, loss of taste/smell, nausea. ‒ Employers should rely on CDC, other public health authorities, and reputable medical

sources for information on emerging symptoms associated with COVID-19.

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What Protections are in Place for Employee Medical Information?

• Medical information about an employee must be stored separately from the employee’s typical personnel file. ‒ This includes results of a temperature check or other screening; and the employee’s self-

identification of being infected by COVID-19. ‒ Supervisors who are working remotely and cannot comply with this requirement must:

‒ (1) Take appropriate steps to maintain the confidentiality of this information while working remotely; and

‒ (2) Store the information in a separate file as soon as practicable.

• Employers who keep a log of temperature check results must keep the log confidential.

• Do not disclose the name of an employee diagnosed with COVID-19 without a signed release.

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What Rules Are In Place for the Hiring Process?

• Employers may screen applicants for symptoms of COVID-19 after making a conditional job offer, if they do so for all applicants in the same type of job.‒ Employers can perform medical exams, such as temperature taking, for applicants.

• Employers may delay the start date of an applicant who has COVID-19 or symptoms associated with it.‒ Employers may withdraw a job offer when it needs the applicant to start immediately but

the individual has COVID-19 or symptoms associated with it.

• Employers may not postpone the start date or withdraw a job offer because an applicant is 65 year old or pregnant, and thus at a higher risk from COVID-19. ‒ However, an employer may choose to allow telework or to discuss whether they would

like to postpone the start date.

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What Rules are in Place Regarding Reasonable Accommodations?

• Employees who received accommodations before the pandemic may be entitled to additional or altered accommodations (e.g., altered facemasks), absent undue hardship.

• Employees may also be entitled to new accommodations if they: (1) are at a higher risk due to a preexisting disability, or (2) have a pre-existing mental illness that has been exacerbated by the pandemic. Examples: ‒ Changes to the work environment to avoid contact with others.‒ Using barriers to increase social distancing.‒ Allowing breaks.

• On the other hand, some accommodations that were reasonable before the pandemic now may pose an undue hardship to the employer due a sudden loss in income or changes in business operations.

• Employers may prioritize requests for accommodations that are needed while teleworking and may provide temporary accommodations during the pandemic.

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What Should Employers Be Considering As Businesses Begin To Re-Open?

• The President’s Guidelines advocate for a phased approach:‒ Phase One: Strict social distancing protocols, no non-essential travel, no groups of 10+,

schools and bars remain closed, other venues – such as restaurants, theatres, and gyms – reopen under strict social distancing protocols.

‒ Phase Two: Non-essential travel resumes, no groups of 50+, continued social distancing. ‒ Phase Three: Business return to mostly normal operations.

• Ultimate authority is left to the states. ‒ Re-opening will take place on a state-by-state or country-by-county level.

• The RAB/32BJ Extension Agreement provides a 14-day window to negotiate a re-opening MOA, which will govern protocols for the industry.

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What Should Employers Be Considering As Businesses Begin To Re-Open?

• Upon reopening, employers should consider:‒ Temperature screenings of employees.‒ Employee questionnaires.‒ Diagnostic and antibody testing, if/when it becomes available. ‒ Various levels of social distancing measures, depending on the severity of the outbreak.

‒ Flexible worksites and schedules.‒ Increasing space between people (e.g., reconfiguring offices, constructing physical barriers).

‒ Other steps that employers can take to reduce transmission.‒ Providing facemasks and other PPE.‒ Requiring sick employees to stay home.

‒ A response plan for when employees are diagnosed with or exposed to COVID-19. ‒ Onboarding furloughed or laid-off employees.‒ Ways to prevent discrimination and harassment claims.

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Tuesday, April 21, 202041 Coronavirus and the Building Workplace: Are You Prepared? Part 6

Additional Resources

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Proskauer’s Resources

• Coronavirus Resource Center‒ https://www.proskauer.com/market-solutions/coronavirus-covid-19-resource-center

• Law and the Workplace Blog‒ https://www.lawandtheworkplace.com/

‒ Recent Coronavirus blog topics include:

‒ Federal Coronavirus Aid, Relief and Economic Security (CARES) Act Signed into Law

‒ Federal Family First Coronavirus Response Act Signed Into Law

‒ New York State Issues Guidance on COVID-19 Quarantine Leave Law

‒ New York State Mandates Non-Essential Workers Must Stay Home

‒ EEOC Answers Employers COVID-19 Related Questions

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RAB, REBNY, and BOMA Resources

• RAB Document Center – https://www.rabolr.com/documents‒ Each of the 32BJ/Union Agreements‒ Essential Business Identification Form Letter for Employees‒ List of Janitorial Contractors‒ Other COVID-19 Guidance

• REBNY Resource Hub – https://rebny.com/content/rebny/en/Coronavirus.html‒ Federal Stimulus Resources‒ Real Estate Industry Resources‒ Other Government Resources

• BOMA NY Website – http://www.bomany.org/home/

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Additional Resources

• Centers for Disease Control and Prevention ‒ https://www.cdc.gov/coronavirus/2019-ncov/index.html‒ https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html‒ https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-business-

response.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fguidance-business-response.html

• Occupational Safety and Health Administration‒ https://www.osha.gov/SLTC/novel_coronavirus/standards.html‒ https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19‒ https://www.osha.gov/memos/2020-04-13/interim-enforcement-response-plan-coronavirus-disease-2019-covid-19‒ https://www.osha.gov/Publications/OSHA3990.pdf

• Equal Employment Opportunity Commission ‒ https://www.eeoc.gov/facts/pandemic_flu.html‒ https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

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Additional Resources (cont’d)

• Department of Labor: Wage and Hour Division ‒ https://www.dol.gov/agencies/whd/pandemic‒ https://www.dol.gov/agencies/whd/pandemic/ffcra-questions‒ https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

• New York State Department of Health‒ https://www.health.ny.gov/diseases/communicable/coronavirus/‒ https://coronavirus.health.ny.gov/system/files/documents/2020/03/doh_eoguidancegatheringspacesbusiness_031920.pdf‒ https://esd.ny.gov/novel-coronavirus-faq-businesses‒ https://coronavirus.health.ny.gov/new-york-state-pause

• Other New York State Guidance ‒ https://esd.ny.gov/guidance-executive-order-2026‒ https://paidfamilyleave.ny.gov/new-york-paid-family-leave-covid-19-faqs‒ https://www.governor.ny.gov/news/no-20216-continuing-temporary-suspension-and-modification-laws-relating-disaster-

emergency

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Additional Resources (cont’d)

• New York City Health Department‒ https://www1.nyc.gov/site/doh/health/health-topics/coronavirus.page‒ https://www1.nyc.gov/assets/doh/downloads/pdf/imm/novel-coronavirus-faq-for-businesses.pdf‒ https://www1.nyc.gov/assets/doh/downloads/pdf/imm/disinfection-guidance-for-businesses-covid19.pdf‒ https://www1.nyc.gov/assets/doh/downloads/pdf/imm/covid-19-residential-buildings-faq.pdf

• New York City Department of Buildings‒ https://www1.nyc.gov/assets/buildings/pdf/covid-19_construction_faqs.pdf‒ https://www1.nyc.gov/assets/buildings/pdf/essential_vs_non-essential.pdf

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Future Webinars

• Webinar #7: Date and Time To Be Announced

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Questions?

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Coronavirus and the Building Workplace: Are You Prepared? Part 6

Tuesday, April 21, 2020

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