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What Rights do Essential Workers have in NYS and NYC?

by Mika Forman-Yossifov

The COVID-19 pandemic has contributed to numerous changes in the workplace, and one such development is the concept of categorizing workers as essential or non-essential. In the midst of the pandemic, as the majority of businesses were required to cease operations, essential workers have continued to perform their jobs. By remaining at work, this group of laborers faces a greater risk of exposure to COVID-19 as compared to the general public. For instance, in the United States, over the initial months of the pandemic, more than 3,000 workers filed complaints with the Occupational Safety and Health Administration (OSHA) concerning health and safety protections. The pandemic has highlighted the significance of essential workers in society and offers an opportunity to improve the treatment of these workers.  

During non-emergency times, essential workers receive protections through OSHA, which obligates employers to provide employees safe and healthy working conditions. In the current unprecedented pandemic, however, there is an absence of widespread legal obligations for employers to protect their essential workers and instead solely voluntary guidance provided by the federal agencies of the Centers for Disease Control and Prevention (CDC) and OSHA. Moreover, essential businesses have instituted a range of COVID-19 practices, leaving the health and safety of essential workers up to the vigilance of their employers. As a result, in both New York State and New York City bills are being introduced to protect the labor rights of essential workers. 

The New York state bill—sponsored by Senator Liu—amends labor law by establishing an “essential workers’ bill of rights.” Currently under review of the New York State Senate Labor Committee, the bill intends “ensure rights, protection and hazard pay for essential workers during a state of emergency.” If passed, employers of essential workers—as outlined by Governor Cuomo’s Executive Order 202.6—would be required to put into effect an essential workers’ bill of rights. The bill stipulates that in a state of emergency, all such employers of essential workers have the duty to: 

  1. “provide essential workers adequate personal protective equipment and products at no cost to the workers;”
  2. “inform essential workers when an employee has contracted a disease related to such state disaster emergency and of a worker's potential exposure to disease;”
  3. “not retaliate or discriminate against an essential worker for reporting any unsafe work environment;” and
  4. a subset of employers—defined in subsection 3 of the bill—must “make hazard payments and cover the costs of child care or health care needed by such essential workers for the duration of the state disaster emergency.”

Similar legislation pertaining specifically to New York City, titled the “NYC Essential Workers Bill of Rights” and introduced by the New York City Council’s Committee on Civil Service and Labor. The NYC Essential Workers Bill of Rights provides a series of three bills: 

  1. premium pay for essential, non-salaried workers
  2. ban against discharging essential workers without “just cause;” and 
  3. expanding the coverage of the Earned Safe and Sick Time Act to include gig-workers.

If enacted, the premium pay bill would only establish an obligation for essential employers—again as defined by Governor Cuomo’s Executive Order 202.6—who are “large employers” which is stipulated in the bill to mean those with 100 or more employees. Such employers will have a duty to pay essential, non-salaried employees a premium hourly salary depending on the length of their shift. This aspect of the NYC Essential Workers Bill of Rights recognizes the risks these employees take on by continuing to work during the pandemic. The just cause bill introduces a mandated exception to the “at will” employment doctrine and if passed would mark a significant shift in US modern employment law. This bill also states that the employer of essential workers bears the burden of proof and specifies factors a court should consider in evaluating whether an essential worker was discharged for “just cause.”

The passing of such health and safety legislation for essential workers will not only improve the labor conditions of essential workers during the continuously evolving COVID-19 pandemic, but will also have a lasting impact on their labor rights and protections in future emergencies. These legal reforms would help to mitigate the disparity between the cruciality of the labor these workers perform and their inadequate employment conditions such as low wages.

For more specifics on the provisions of the proposed essential workers bill rights in New York State and New York City please refer to: 

Mika Forman-Yossifov

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