COVID Status Guide for Workers in New York and Long IslandTuesday, January 4, 2022
We are now entering the second year of the COVID-19 pandemic. During that time, the pandemic and the government and private sector responses to it have drastically reshaped our lives in ways big and small, and in others that we are only just now beginning to understand. What we once assumed would be a temporary disruption to our established norms has turned out to be a once-in-a-century societal upheaval whose effects we will be dealing with for years to come.
Nowhere has COVID-19-related upheaval been more apparent than in the labor market. The pandemic and initial lockdowns resulted in the mass layoff of millions of workers, causing jobless claims to peak at over 6 million in early April 2020 — the largest number on record. Industries that rely on their customers being physically present, such as travel, leisure, hospitality, and entertainment, were particularly hard-hit. In industries that could not shut down completely and for which remote work was not an option — such as retail and healthcare — many workers quit voluntarily due to fear of contracting COVID-19. And even in remote-capable industries, companies pared back their staff and sent their remaining workers home, resulting in the decimation of the service-sector businesses that catered to them. Many white-collar workers decamped for the suburbs or left major metro areas entirely, raising serious questions about the long-term viability of downtown office districts.
New York was hit particularly hard by the pandemic and its associated labor-market trends, particularly New York City and Long Island. As such, state and local governments have taken a variety of measures to slow the spread of COVID-19, and much of the burden of these measures have fallen on workers and employers across the state. Below is a guide to current COVID-19 policies for workers in New York.
How Hard Was New York Hit by COVID-19?
New York was one of the first “hot spots” of the pandemic. In early April 2020, New York averaged just over 40 COVID-19 cases per 100,000 people, which was significantly higher than the United States average of under 10 per 100,000. Cases then declined through summer 2020, reaching a low of 2.64 per 100,000 in late June, before ticking back up during winter 2020/2021. After another fall to 1.8 cases per 100,000 in late June 2021, case numbers are back above the national average as of the date of publication (64.5 per 100,000 in New York vs. 35.5 per 100,000 nationwide). In total, 57,788 New Yorkers have died of COVID-19 since the pandemic began, placing the death rate at 297 per 100,000. This ranks New York at number six among the top 10 states with the highest COVID-19 death rates, surpassed only by Arizona, Louisiana, New Jersey, Alabama, and Mississippi.
In terms of economic damage caused by the pandemic, New York’s unemployment rate is also higher than the national average. As of the date of publication, the unemployment rate in New York is 6.9%, compared to 4.2% nationwide. This is far below the state’s pandemic peak of 16.2% in April 2020, but still far higher than pre-pandemic averages. New York City’s economic recovery appears to be occurring particularly slowly compared to the nation at large. According to data from the state Labor Department, the city has regained fewer than six in 10 of the jobs it lost since the pandemic began, compared to over nine in 10 nationwide.
New York State Mask Policies
Governors Cuomo and Hochul have issued a number of mask mandates throughout the pandemic. The latest mandate (and the one that is currently in force as of the date of publication) was issued by Governor Hochul on December 10, 2021, and took effect on December 13. It will remain in force until January 15, 2022, at which time the state will re-evaluate the continued need for it.
The current state mask mandate applies to all public indoor spaces and requires both employees and patrons to wear masks if the business or establishment does not require proof of vaccination of employees or patrons. Whichever policy a business establishes (i.e., either masking or proof of vaccination), the requirements apply to everyone within the business, including staff, patrons, visitors, and guests. Businesses may not implement a “combination” requirement whereby fully vaccinated employees and patrons may be unmasked while unvaccinated employees and patrons are masked; businesses must choose one policy or the other and apply it equally to everyone inside the establishment. Violators face a maximum fine of $1,000 per violation.
Governor Hochul has tasked counties with enforcement of the mandate, and several county executives — including those of Dutchess, Nassau, Orange, Putnam, and Rockland Counties — have vowed not to enforce it. New York City Mayor Bill De Blasio announced that the city would implement the mandate in a “cooperative way.” Workers in the aforementioned counties that are not enforcing the mandate should consult their employers for guidance on company policy regarding masking.
Vaccine Requirements for New York Workers
Workers in New York are subject to a patchwork of state and local vaccine mandates, the most significant of which are detailed below.
Governors Cuomo and Hochul, as well as various state agencies, have issued a number of vaccine mandates in 2021. As of the date of publication, the following employees statewide in New York are covered by one or more vaccine mandates:
- Employees working in facilities offering health care to individuals served by the Office of Mental Health (OMH) and the Office for People with Developmental Disabilities (OPWDD) (October 5, 2021)
- All healthcare workers, including staff at hospitals and long-term care facilities (September 27, 2021)
- Employees of the Metropolitan Transportation Authority (MTA) and New York Port Authority (August 2, 2021)
- Employees of the State of the New York (or weekly testing) (July 28, 2021)
The most controversial of the above mandates is the mandate for healthcare workers issued on September 27. While the mandate originally provided an exception for religious reasons, Governor Hochul and Health Commissioner Howard Zucker later removed that exception, allowing exceptions only for medical reasons. This led to a constitutional challenge of the law by doctors and nurses across the state, who alleged that the mandate violated their sincerely held religious beliefs. On December 13, the Supreme Court of the United States declined an emergency application for injunctive relief, allowing the mandate to go into effect.
New York City
New York City Mayor Bill de Blasio and various city agencies have taken an aggressive approach to vaccine mandates. As of the date of publication, virtually all public- and private-sector employees in New York City are covered by one or more vaccine mandates:
- All private-sector employees who perform in-person work or interact with the public (December 13, 2021)
- Faculty and staff of religious and private schools (December 2, 2021)
- Staff working in childcare facilities (November 17, 2021)
- Faculty and staff in New York City public schools (September 27, 2021)
- Employees of the City of New York (October 20, 2021)
Mayor de Blasio’s December 13 mandate, which applies to nearly all private-sector employees, is slated to go into effect on December 27. It is almost certain to face legal challenges, but Mayor de Blasio is confident that it will survive because it is “universal” in scope. It is also unclear whether New York City’s incoming mayor, Eric Adams, who will take office on January 1, 2022, will keep the mandate in place.
Resources for New York Workers Affected by COVID-19
There are a variety of programs available to assist workers who have suffered a financial toll from a COVID-19 infection.
Paid Sick Leave
Early in the pandemic, New York established a paid sick leave program for workers. It is available for employees who are subject to a mandatory or precautionary order of isolation or quarantine issued by the State of New York, the Department of Health, a local board of health, or other government entities. The program applies to the following employers:
- 1-10 employees, net income $1 million or less in 2019: 0 days (use Paid Family Leave instead)
- 1-10 employees, net income over $1 million in 2019: 5 days
- 11-99 employees: 5 days
- 100 or more employees: 14 days
- Public employers of any size: 14 days
The Paid Sick Leave program supplements the Paid Family Leave program. Workers who use the Paid Sick Leave program remain eligible for benefits under the Paid Family Leave program. Please note, however, that the paid sick leave program is not available to workers who are capable of working remotely or by other means.
Does Workers’ Compensation Apply to COVID-19?
The workers’ compensation program is available to workers who suffer a work-related injury that prevents them from performing their job duties for a period of time. Almost all public- and private-sector workers in New York are eligible for workers’ compensation, including those whose professions put them at the highest risk of contracting COVID-19, such as retail workers, food service workers, healthcare workers, nursing home staff, airline employees, corrections officers, and delivery providers. The worker’s compensation program is a “no-fault” program, meaning that injured workers may receive compensation even if they were at fault for their injury.
Benefits available under the program include:
- Payment of the workers’ medical expenses
- Wage replacement benefits
- Benefits to the worker’s surviving dependents in the event of death
- Reimbursement of funeral expenses
Workers’ compensation benefits are available for workers who contract COVID-19 on the job; however, the application process for those suffering COVID-19 can be more of a hurdle than for those with traditional work-related injuries. This is because a key issue in many workers’ compensation determinations is whether the worker’s injury is truly work-related. In legal terms, this means that the injury must have occurred while the employee was in the course of performing his or her work duties. While this does not necessarily require the employee to be physically present on his or her employer’s premises, it bars compensation for any injuries sustained while commuting, running personal errands, or doing anything else that is not directly work-related.
Although it is virtually impossible for any worker to pinpoint the exact moment they were infected with COVID-19, claimants can demonstrate that their work environment put them at an elevated risk of COVID-19 infection by submitting the following information:
- Where they work
- How often do they work
- The job duties they perform
- The extent of their contact with the public
Claimants should also submit a report from an authorized workers’ compensation medical provider stating that their work caused their illness, along with a positive test result.
Claimant Beware: Many COVID-19 Workers’ Compensation Claims Are Denied
According to a study by the Wall Street Journal, workers’ compensation claims based on COVID-19 are being denied at high rates. While there is no national database of the number of workers’ compensation claims for COVID-19 that have been paid out or denied, state-level data is instructive. In Texas, there were more than 32,000 COVID-19-related workers’ compensation claims filed through December 6, 2020, of which 45% were denied. In California, there were over 90,000 such claims through the end of December 2020, 26% of which were denied. In Florida, about 56% of private-sector claimants’ COVID-19 workers’ compensation claims were denied. The study found that denial rates for COVID-19-related claims were high even in states that had presumptive-eligibility rules for frontline workers, who are permitted to bypass the step in the application process at which they must prove that their injury is work-related. (New York’s presumptive-eligibility law is currently pending as of the date of publication; however, it applies only to public employee death benefits). Such denial rates significantly lengthen the timeline for COVID-19 claimants and increase the likelihood that their claim will have to proceed through the hearing and appeal stages of the application process.