Help For Health Care Workers - Understand How to Ask to Work Remotely Due to Coronavirus/COVID-19

Since Monday, March 23rd, only workers at “essential businesses” have been allowed to work from the office. Governor Cuomo issued a list of which businesses are considered essential, and therefore do not need to require that staff work remotely at this time – although they must comply with relevant safety protocols issued by the NYS Department of Health.  Most notably, health care providers are on the list. Essential health care providers include:

• research and laboratory services
• hospitals
• walk-in-care health facilities
• emergency veterinary and livestock services
• elder care
• medical wholesale and distribution
• home health care workers or aides for the elderly
• doctor and emergency dental
• nursing homes, or residential health care facilities or congregate care facilities
• medical supplies and equipment manufacturers and providers

Our office has been hearing from numerous employees of health care providers whose jobs do not require them to be on the front lines of providing direct patient care in the current pandemic but, because they work in essential health care operations, they are being required to come to work in person. These workers want to work remotely and believe they can perform their essential duties away from their usual physical location.   They are willing to accept changes to their job duties if necessary to work remotely, so they can stay safe, keep their families healthy, or be able to properly care for their children who no longer have childcare. This blog post is meant to provide a framework for those workers to have a productive conversation with employers in support of a request to work remotely.

As of now, there is no law or regulation specifically addressing this issue; but, there are a number of strategies available to health care workers who want to request remote work:

Do I have a legal basis to ask to work remotely? Our current laws, although shifting, still do not offer effective tools to protect workers who are in essential services and do not have any personal or familial health issues (other than legitimate fear of contracting Coronavirus).

• Do you have an underlying health condition? Does an underlying health condition of yours, including pregnancy, create concerns about operating in your current workplace? If so, you can ask for a “reasonable accommodation.” Employers are required to engage in an “interactive process” with employees who request reasonable accommodations.  Under this process, your employer does not have to agree to your suggestions for a reasonable accommodation, but they have to entertain them, and must explain why it would be an undue burden for them to agree to your request, and should engage in some back and forth, offering alternative accommodations, if they think there are any. In NYC, employers have to go further, and must engage in a “constructive dialogue” about the request, including a similar dialogue.  Additionally, NYC employers must put their final decision about the request for a reasonable accommodation in writing. Failure to provide that writing is a standalone violation of the New York City Human Rights Law.
• Are you eligible for expanded FMLA or NYSPFL due to an order of mandatory quarantine or isolation? This would allow you to receive job-protection and pay while not working for a period of time. Both of these laws only apply if you are unable to work remotely.
• FMLA: If you work for an employer with fewer than 500 employees, which may be the case if you work for a smaller provider of services within a health care setting, check if you are eligible for FMLA to be paid by your employer for two weeks due to exposure to COVID, and up to 12 weeks where your minor child’s  school or day care has been closed due to COVID.
• Note: Health care providers may be able to exempt their business or organization from the latest expansions.
• New York State Paid Family Leave: If you work for any size employer in NY, especially one that is more than 500 employees, check to see if you are eligible for any Paid Leave under expanded COVID-related leave laws. If you care for a family member with a serious illness (not necessarily COVID-related) or have a new child and have not taken NYS Paid Family Leave in the past year, you may be eligible to apply for standard NYS Paid Family Leave.

What can I do if I have no legal basis for requesting remote work?

Appeal to your employer’s humanity, and cite to safety protocols. If you ever work remotely for your job, remind the boss that you have done it effectively in the past and should be allowed to do it now.   Emphasize your fear of being exposed, or exposing others – co-workers, patients, family, the public at large -- unknowingly, if you have to go to your usual location, especially since you have the capacity to work remotely. Explain your method for getting to work, and why it may not be safe for you to do so, even if your place of work is following required safety guidelines. Recognize that the laws and regulations have been changing almost daily, and you may end up being required to work from home at some point, so why not allow you to do so now?

Point out any safety concerns you have about how things are operating in your workplace.  The shortage of PPE, for example, is well-documented. Relevant safety protocols may be found at the New York State Department of Health, CDC, OSHA, and the American College of Obstetricians and Gynecologists re Guidance for Pregnant Health Care Personnel. Check whether any industry-specific organization has provided industry-specific guidance you can refer to in support of your request.

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