Dear Brother and Sister Clerks:
Many of you are on the front lines of the war against the novel Coronavirus (“COVID-19”), which is showing no signs of slowing down. Without your valor in the face of obvious exposure, the Court-System’s operations would likely be at a standstill and litigants would be vulnerable to both exposure to COVID-19 and potential deprivations of the laws enacted for their protection. Over the last several weeks, I directed Pitta LLP, the Union’s legal counsel, to research various health, workplace and labor laws, implicated by COVID-19, and their effect on your rights as a New York State and Court-System employee. The following information and suggestions were prepared for your benefit. Additionally, the Union’s attorneys are available to address any other concerns or questions you may have.
In addition, the Union is tracking information concerning COVID-19 cases in the courthouses to best protect our members and their families. Based on this data as of March 25, 2020, we believe clerks assigned to the relevant courthouses should be aware of the following reports and determine whether they may have had peripheral or direct contact with an infected employee/litigant so they can make more informed decisions about their health:
- Litigant in 851 Grand Concourse, Bronx, NY 10451;
- Employee in 60 Lafayette St, New York, NY 10013;
- Employee in 170 E. 121st, NY, NY 10035;
- Jurist in 360 Adams Street, Brooklyn, NY 11201;
- Jurist in 88-11 Sutphin Blvd., Jamaica, NY 11435;
- Employee in 89-17 Sutphin Blvd., Jamaica, NY 11435;
- Jurist in 71 Thomas Street, NY, NY 10013;
- Jurist in 111 Centre Street, NY, NY 10013;
- Jurist in 60 Centre Street, NY, NY 10007; and
- Litigant in 927 Castleton Avenue, Staten Island, NY 10310.
If you are aware of any other location not listed above where there is reason to believe a COVID-19 has been recorded please immediately and privately notify the Union.
Below is a series of useful questions and answers prepared by the Union’s legal counsel, however, given the constantly changing environment in Washington D.C. and Albany, this information is subject to change. The Union and its Executive Board continue to work with the Court-System to ensure that our members are provided reliable and up-to-date information as soon as it becomes available. In addition, our attorneys continue to monitor all legal developments and the effect on the rights and responsibilities of our members during this unprecedented time. As always, if you have any questions, do not hesitate to call the Union at (212) 941-5700. Finally, even if you have not been in contact with an infected person or an affected area, but are experiencing all symptoms of COVID-19, you should immediately call New York State Department of Health at 1-888-364-3065 to receive guidance and/or schedule an appointment for testing.
Glenn L. Damato
Question 1: Is the Court-System obligated to prevent my exposure to COVID-19 infection at the workplace?
Answer: Every employer must provide a safe workplace for their employees which is free of recognized hazards that are likely to cause death or serious physical harm. It is likely that the novel Coronavirus and COVID-19 infection is such a hazard. The employer is required to keep the workplace free of such a hazard by utilizing feasible and useful methods to do so.
Question 2: Is the Court-System obligated to tell me if I have potentially been exposed to COVID -19 infection at my workplace?
Answer: There is no specific requirement that an employer inform an employee of another employees’ medical status, including COVID-19 infection. However, we have been advised by the Court-System’s HR Director that the Court-System notified those persons potentially at risk. The confidentiality of medical information of another employee must be maintained by the Court-System. If you learn that such notifications are not being made, please let the Union know.
QUESTION 3: Is the Court-System required to provide personal protective equipment to me?
Answer: While several clerks have voiced concerns over the non-distribution or non-availability of viral protective equipment and cleaning supplies, to the extent these items become available, due to national shortages they will likely be routed to health care employees in hospitals and COVID-19 testing facilities. To protect yourself from potential exposure, you may want to purchase these items if available locally. Please keep receipts for any and all purchases.
QUESTION 4: May I object to performing an assigned task if I believe doing so would jeopardize my immediate health or safety because the Court-System has not remedied a recognized hazard?
ANSWER: If you have no other alternative than not performing a specific duty because you reasonably believe that doing so would subject you to an imminent risk of death or serious physical harm, the Court-System cannot take adverse action against you because of your decision. Additionally, you should document the incident or condition and immediately report it the Union.
QUESTION 5: What should I do if I interact with an individual who has tested positive, or is suspected positive, for COVID-19?
ANSWER: Regardless of whether you manifest symptoms, document and maintain for your records any interaction you have had with any individual you believe to be positive for COVID-19. You should also complete with as much detail as possible an unusual occurrence report and include all the information which led you to this belief about the potential exposure. A copy of the report should be given to the Union for recordkeeping purposes. After submitting the report to a supervisor, you may choose to be removed from service to self-quarantine.
QUESTION 6: What can I do if I am potentially exposed to a person infected with the Coronavirus or has symptoms of the COVID-19 infection?
ANSWER: Employees who reasonably believe they were exposed to COVID-19 may choose to self-isolate in order to conduct additional monitoring and to seek medical testing. Potentially exposed individuals who subsequently manifest COVID-19 symptoms and are seeking a medical determination are entitled to paid leave under the NYSCCA & Court-System Collective Bargaining Agreement and may be entitled to additional leave options under the federal Families First Response to Coronavirus Act, which is effective April 1, 2020, and the New York State COVID-19 Sick Leave Act, which is effective immediately. The newly-enacted sick leave benefits are described below.
QUESTION 7: If I test positive for COVID-19 may I disclose my diagnosis to colleagues?
ANSWER: While your personal health information is confidential you may voluntarily disclose your diagnosis to colleagues to allow them to make an informed decision about whether to seek a medical evaluation or self-isolate for the incubation period of 14 days.
QUESTION 8: How can the Union help me?
ANSWER: Depending upon your individual and familial circumstances, you may be entitled to paid time off related to this pandemic. As noted above in question no. 6, both the Federal and New York State governments have approved additional benefits for workers and their families affected by COVID-19. If you cannot work due to the need to care for yourself, a minor child or a family member related to a COVID-19 implication, you may be entitled to relief under the newly enacted federal and state law and the Union’s legal counsel can assist with individual determinations.
Summary of the Federal and State COVID-19 Leave Laws
Effective April 2, 2020, the Families First Coronavirus Response Act (the “Act”) will provide employees who are unable work because of certain reasons related to COVID-19 pandemic emergency job-protected leave. The Act amended the Family and Medical Leave Act’s (“Emergency FMLA Leave”) eligibility and payment obligations and created the Emergency Paid Sick Leave Act (“EPSLA”).
Emergency FMLA Leave
Eligible employees may take up to 12 weeks of job-protected leave when the employee is unable to work due to a need for leave to care for their minor child children if: (1) the child’s school or place of care has been closed; or (2) the child care provider of such child is unavailable due to a public health emergency (defined as an emergency with respect to COVID-19 declared by a federal, state, or local governmental authority). While the first 10 days of Emergency FMLA Leave is unpaid, employees may substitute accrued paid time off during this period, including emergency paid sick time discussed below. After the first 10 days, the employee must be paid 10 weeks of paid leave calculated at a rate that is at least 2/3 of their regular rate of pay multiplied by the number of hours they would otherwise be normally scheduled to work, capped at $200 per day ($10,000 in the aggregate).
Emergency Paid Sick Leave Act
EPSLA requires certain private and public employers to provide 80 hours of paid leave to employees who are unable to work related to COVID-19 because:
- The employee is subject to a government ordered quarantine or isolation;
- The employee is self-quarantined based on a recommendation from a health care provider;
- The employee is manifesting COVID-19 symptoms and is seeking a medical diagnosis
- The employee is caring for an individual who is subject to an order to quarantine or self-isolate or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor; or
- The employee is caring for their minor child of if due to COVID-19 precautions the child’s school or place of care has closed or the child care provider of such child is unavailable.
Eligible employees utilizing the leave for reasons (1) – (3) listed above are entitled to paid leave at their regular rate, capped at $511 per day ($5,110 in the aggregate) (which must equal or exceed minimum wage) and for leave for reasons (4) – (6) listed above are to be paid $200 per day ($2,000 in the aggregate) (which must be no less than two-thirds of the employee’s regular rate of pay or the minimum wage, whichever is greater). The Secretary of Labor is required to issue regulations regarding how paid leave should be calculated under the Act and is authorized to issue regulations excluding certain types of employees, including emergency responders, which has yet to be defined, from compliance with the Act. Finally, employers may not require employees to use other accrued or available leave time prior to using EPSLA time and are prohibited from retaliating against employees who utilize such leave.
New York State Emergency Paid Sick Leave Law
Unlike the Act, New York’s COVID-19 Paid Sick Leave Law (“NYSPSL”) took effect immediately, though it this leave does not apply to employees who need to care for sick family members (although New York State Paid Family Leave would likely apply) or who have a minor child whose school has closed. The NYSPSL provides eligible employees of public and private employers varying levels of emergency leave related to COVID-19. For public sector employees, they are entitled to up to 14 days of paid leave if the employee employees is subject to a mandatory or precautionary Quarantine Order (defined as order of quarantine or isolation issued by the state of New York, the Department of Health, a local board of health, or any governmental entity authorized to issue such order due to COVID-19).