With NYC poised to reopen, Abrams Fensterman attorney explains what employers need to know

June 4, 2020 Rob Abruzzese

Rachel Demarest Gold, a partner at Abrams Fensterman.
Screenshots via Zoom

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The Brooklyn Chamber of Commerce has hosted a series of webinars designed to help local business owners deal with the COVID-19 pandemic. It’s most recent one featured Abrams Fensterman attorney Rachel Demarest Gold, who explained what businesses need to know as they prepare to reopen.

Hundreds of attorneys and small business owners tuned in on Zoom on Thursday, May 28 to watch the one-hour seminar entitled, “Returning to Work: What Employers Need to Know to Avoid Lawsuits & Penalties,” which ended with a Q&A session.

“We’re excited that we’re starting to look toward reopening now and are pivoting our programming to address the issues that will come up,” said Samara Karasyk, the executive vice president and chief policy officer with the Brooklyn Chamber of Commerce. “The governor has not given a lot of guidance in NYS in terms of what reopening will look like exactly, what are the steps you need to take, but we have experts like Rachel Gold to give you information to help you navigate this and answer questions.”

Demarest Gold is a partner at Abrams Fensterman who works in the firm’s labor and employment, criminal and government litigation law and policy groups. She previously worked as a prosecutor in the Bronx District Attorney’s Office and for Gov. Andrew Cuomo when he was attorney general.

Demarest Gold explained that while the reopening guidelines can change drastically from day to day that they should be following guidance from the Centers for Disease Control (CDC) and the Occupational Safety and Health Administration (OSHA). The biggest thing, she explained, is that employers protect their employees from COVID spread and avoid liability.

“OSHA put out an enforcement memo to its field staff — they had held back and had been a little lenient about the way they were approaching enforcement during the height of the pandemic, but they are back full force,” Demarest Gold said. “COVID-19 is a priority of theirs and you need to know your reporting requirements through them. A lot of what OSHA is going to be looking for deals with what the CDC says are standards that are safe.”

The biggest new changes for employers is the requirement to protect employees by using social distancing and other measures, but also to report outbreaks of COVID if they occur.

Samara Karasyk, the executive vice president and chief policy officer with the Brooklyn Chamber of Commerce.

“There is a duty to report,” she explained. “COVID-19 is considered a reportable condition so you need to know when and how to report when you are in line with what they’re looking for … If you find out that one of your employees has COVID, or if you believe they did because they took time off because they didn’t feel well, in order to have to report it, it has to be confirmed by testing. It’s not just symptoms.”

Employers must report to OSHA within eight hours if there is a COVID-related death and within 24 hours if an employee is hospitalized. If it’s a condition that is not work-related, meaning an employee got it at home, it doesn’t need to be reported, but Demarest Gold stressed that OSHA is not looking to penalize employers necessarily and they should report if there is any question.

“These are priority cases, they want to be sure they are tracing, they’re going to be fairly aggressive in their enforcement, so err on the side of reporting,” Demarest Gold said. “You are not admitting that this happened in your place of work … the guidance handed down says, talk about [employer] compliance, make sure they are handing out PPE. They’re not looking to penalize. Get the help they are offering now before it becomes a bigger problem. I know people aren’t used to dealing with OSHA, but it’s not as complicated as it sounds and there is a lot of help available.”

Some suggestions that Demarest Gold made include: creating personal workspaces spread out from other employees, with plastic barriers if possible or necessary; asking people to bring lunch to avoid going out; limiting the use of common areas and technology; staggering employee breaks; making sure employees leave at different times; limiting visitors; limiting travel; continuing virtual commuting as much as possible; controlling deliveries; avoiding the sharing of office equipment and supplies; disinfecting surfaces as much as possible; and supplying personal protective equipment like masks, gloves and hand sanitizer.

“My firm has had a company come in for regular cleanings to disinfect our work surfaces,” she explained. “Leave wipes, hand sanitizer, tissues everywhere and tell your workers to use them.”

Demarest Gold also suggested that employers designate a single person to monitor employee compliance and to track workers to make sure they haven’t gotten sick.

“Unlike everything you’ve ever heard, you can now take your employees’ temperature when they enter the workplace and we can require them to be tested before they come in,” she said. “You can also just offer to test, and you should be sending sick employees home. Monitor symptoms.”