12

February, 2021

Employers Keep Getting Pounded: TAKEAWAYS for Winter 2020/21

We invite New York, New Jersey and Connecticut employers to view the latest issue of  Takeaways, our quarterly newsletter covering the most recent employment law changes.  For winter 2020/21, those include:

  • expansive protections of New York City job applicants and employees based on criminal history;
  • radical change in the employment relationship for fast food workers in New York City (also see our separate blog posting on that);
  • the most current minimum wage rates for New York, New Jersey and Connecticut;
  • the latest federal guidance on vaccinations, testing and workplace protections related to COVID-19
  • modified workplace posting standards;
  • a New York State law change on WARN Act notices and new interpretation of COVID-19 leave requirements; and
  • recent appellate court decisions on wage and hour issues in New York and New Jersey.
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26

January, 2021

NYS Employers Required to Provide Multiple Rounds of COVID-19 Paid Sick Leave

By Tracey I. Levy

Employers in New York State may have to pay employees at full salary for more than six weeks of COVID-19 leave (in addition to all other paid leave benefits offered by the employer or mandated by law) under new guidance issued by the New York State Department of Labor (“NYS DOL”) on January 20, 2021.  This is precisely the position that we flagged as a troubling open issue in our prior blog posting, Extension of FFCRA Credit Helps NYS Employers.

The NYS DOL guidance provides that if an employee who returns to work following a period of quarantine or isolation subsequently tests positive for COVID-19, the employee must submit proof of the positive test result and is not allowed to come to work.  Rather, the employee is deemed to be subject to a new mandatory order of isolation and is entitled to New York State’s paid COVID-19 leave law, irrespective of whether the employee already received a full two weeks of paid COVID-19 leave for the prior quarantine.  Similarly, if an employee has been out on COVID-19 leave due to a quarantine or isolation order and continues to test positive for COVID-19 after the end of the quarantine or isolation period, the employee cannot come to work.  Instead, upon proof of the positive test result, the employee is entitled to an additional period of COVID-19 paid leave.

In addition, if an employer mandates that an employee who is not otherwise subject to a quarantine or isolation order remain out of work due to actual or potential exposure to COVID-19 (from any source), then the employer has to continue to pay the employee’s regular salary for so long as the employer requires the employee to stay away from work or until such time as the employee actually becomes subject to a mandatory or precautionary order of quarantine or isolation.  If and when the employee is subject to a quarantine/isolation order, the clock will then begin running on the mandatory New York COVID-19 sick leave period, but the period of paid leave preceding issuance of the order will not count as part of the two-week COVID-19-leave period.

The one concession to employers offered by the new guidance is that they need not endure more than three rounds of paying COVID-19 sick leave for a quarantined employee.  Also, while the first COVID-19 paid sick leave period may arise based on the employee being subject to a COVID-19-related quarantine or isolation order for any reason, the second and third rounds must be predicated on the employee personally testing positive for COVID-19.

Employers have limited options under this new guidance.  Some attorneys have suggested that the guidance (which does not have the same force as a regulation) is subject to challenge on the grounds that it exceeds the scope of the law.  Short of commencing litigation, employers can bear the cost of the more expansively-interpreted law and look to the FFCRA tax credit to offset the costs of each employee’s first round of New York State COVID-19 paid leave.  While the tax credit is set to expire March 31, 2021, it may be extended as part of the latest federal COVID-19 relief legislation.  Notably, New York State’s COVID-19 leave is not available if an employee is able to work remotely, so employers should maximize that opportunity whenever an employee is quarantined but either has not tested positive or is experiencing few symptoms and feels well enough to work.

One other option for employers that are really struggling financially at this time may be to suspend or temporarily reduce vacation or other paid time off benefits for the duration of the pandemic so as to offset the employers’ salary continuation obligations under the COVID-19 leave law.  In most non-union situations, New York State employers are able to modify their paid time off policies at any time, provided employees continue to receive the leave time to which they are entitled by law.  Vacation and extended PTO days fall outside those statutory requirements, and employers generally have flexibility to modify those policies.  It is advisable, though, to consider the  resulting impact to employee morale, and to consult legal counsel before making any such modifications in this context.

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22

January, 2021

Even Small Employers Have Data Protection Requirements Under the NYS “Shield” Act

By Alexandra Lapes

New York employers responding to the pandemic may have overlooked data privacy requirements that took full effect in March 2020 as part of the Stop Hacks and Improve Electronic Data Security (“Shield”) Act.  The Shield Act requires any business handling the “private information” of New York residents to comply with broadened data breach notification requirements, and for the first time it sets specific standards covered businesses and employers should take to maintain reasonable data security safeguards.  The Act explicitly requires small employers to implement a data security program that contains reasonable administrative, technical, and physical safeguards, and to provide notice to affected individuals and proper authorities in the case of a data security breach.  The Act defines a small business as any person or business with less than 50 employees; less than three million dollars in annual revenue for the past three years; or less than five million dollars in year-end assets.

The type of “private information” held by organizations that may trigger the provisions of the Shield Act is defined broadly to include any of the following data elements:

  • social security number;
  • driver’s license number or non-driver identification card number;
  • account number;
  • credit or debit card number, in combination with any required security code, access code;
  • password or other information that would permit access to an individual’s financial account;
  • account number, credit or debit card number if the number could be used to access an individual’s financial account without additional identifying information;
  • biometric information; or
  • a username or e-mail address in combination with a password or security question and answer that would permit access to an online account.

If any one of those data elements is “accessed” or “acquired” by an unauthorized party and can be linked back to an individual’s “personal information,” meaning name, number, personal mark or other individual identifier, it falls under the Shield Act.  Encrypted data falls outside the scope of the Shield Act, unless the data is encrypted with an encryption key that has been “accessed or acquired” by an unauthorized party.

When implementing the security obligations required of all covered employers under the Act, small employers are allowed greater flexibility and will be deemed compliant if the security program is reasonable based on the size and complexity of the business. Small businesses should consider implementing appropriate measures within the following:

  • administrative safeguards, such as designating one or more employees to coordinate a data security program, identify foreseeable internal and external risks on a regular basis, track and assess the sufficiency of safeguards in controlling identified risks, and train employees in security programs, including preparing and preserving documents of compliance activities;
  • technical safeguards, such as assessing risks in network and software design, using the latest versions of software, two-factor authentication implementation, prevention and response to attacks or system failures, and regularly testing and monitoring the effectiveness of system controls and procedures; as well as
  • physical safeguards, such as assessing risk of storage and removal of private information, detecting and preventing intrusions, and physically securing access to information and disposal of that information in a reasonable amount of time.

Small employers must also consider administrative safeguards with regard to third party providers who have access to private data.  These safeguards should be documented so that the employer can demonstrate the reasonableness of its efforts to secure private information.

Small employers should also consider encrypting any and all private information of New York residents to which they have access, and storing the key to the encryption separately from the private information itself.  In doing so, they can significantly minimize the risk of data theft and similarly minimize their obligations and liabilities under the Shield Act.

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17

January, 2021

Paternalism in the Age of COVID-19 Can Trip Up Well-Meaning Employers

By Tracey I. Levy

Employers are authorized, and to some degree required, to intrude into their employees’ personal lives and health issues as a screening tool to prevent the spread of COVID-19 in the workplace.  It is critical to remember, however, that the inquiries employers may currently be posing with regard to employees’ recent travel activity, physical health, and contacts with others represent a very limited exception to the general principle that employees in the U.S. are legally entitled to keep their health information private from their employers and to maintain autonomy over their engagement in lawful activities on their personal time.  Well-meaning employers, concerned for their employees’ welfare, may unwittingly run afoul of federal, state or local laws if they probe unnecessarily into the activities of their employees or place restrictions on where and when employees can work.

 

Reporting Positive COVID-19 Results

One issue that may trip up employers is requiring remote workers to report if they have tested positive for COVID-19 or are experiencing any COVID-like symptoms.  These are precisely the inquiries that employers can pose when screening employees who are physically coming into the workplace and will thereby be in contact with other individuals.  But the same questions are not permissible with regard to remote workers.  Guidance from the Equal Employment Opportunity Commission (“EEOC”) and New York City make clear that an employee who is working remotely and has not had in-person contact with colleagues or customers has no obligation to notify the employer of a positive COVID-19 test result or if they are experiencing COVID-like symptoms.

 

Working While Under Quarantine

Employees in New York who are under a quarantine or isolation order are not eligible for New York State COVID-19 leave if they are still able to work remotely while under quarantine.  If an employee has been quarantined because the employee has personally contracted COVID-19, New York City has issued testing guidance that if the employee can work remotely from home and feels well enough to do so, the employee need not take time off.  The guidance does not authorize employers (no matter how well-meaning) to preclude an employee who is able to work remotely from doing so just because the employee is experiencing symptoms of COVID-19.

 

Higher-Risk Individuals in the Workplace

The EEOC and the New York City Commission on Human Rights have both issued guidance that policies intended to be benevolent, that prohibit older workers from returning to the workplace because their age places them at a higher health risk if they contract COVID-19, are legally impermissible.  The same is true, according to the EEOC guidance, for removing pregnant or disabled employees from the workplace during the pandemic.  Employers must consider remote work requests from pregnant and/or disabled employees as a reasonable accommodation, but if no such request has been made, then the employer cannot mandate a telework arrangement based solely on an employee’s pregnancy, nor can an employer impose such a mandate with regard to an individual with a disability other than in extremely narrow circumstances where the employee’s presence in the workplace is found to present a “significant risk of substantial harm” to the employee and no other accommodation would suffice.

 

Accommodating Older Individuals to Keep Them Safe

New York City employers also can create issues for themselves if they authorize employees to work from home based solely on their age, or provide greater pandemic protective measures in the workplace just for older employees.  Employees, of any age, with underlying health conditions, may be entitled to work remotely as a reasonable accommodation for a disability.  Where the employee is not asserting any risk factor other than age, the NYC Commission on Human Rights has taken the position that the employer must treat all employees the same regardless of age.  The employer is not legally required to accommodate such individuals with remote work or additional precautionary measures, but if it chooses to do so then the option must be made available in an age-neutral manner.

 

Getting the All Clear from the Doctor

Finally, employers that want to be sure an employee really is well enough to return to work after contracting COVID-19 should restrain their instinct to require medical documentation.  Per CDC guidance, employers should not require a COVID-19 test result or a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work. The CDC states requiring a negative COVID-19 test result also is not an appropriate criterion for such employees to return to work, as many people test positive long after the infectious period has ended.

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30

December, 2020

Extension of FFCRA Credit Helps NYS Employers

By Tracey I. Levy

As a post-script to our last blog post, the latest federal COVID-19 relief package, which was signed into law on December 27, 2020, includes a short-term extension of the FFCRA tax credit that offers some additional financial relief for New York State employers.  As we previously discussed, the paid leave requirements of the FFCRA are set to expire December 31, 2020, and the new COVID-19 relief package allows those requirements to sunset.  However, those employers that voluntarily elect to continue to provide the paid leave that was available under the FFCRA, under that law’s eligibility requirements, can continue to claim a federal payroll tax credit through March 31, 2021 to offset the cost of that leave.  New York employers do not have an option with regard to providing COVID-19 leave, and therefore the extension of the FFCRA credit may be a valuable benefit to manage the associated costs.

There are some notable limitations on which employers can benefit from the federal tax credit:

  • Large Employers

Employers with more than 500 employees are subject to the New York State paid leave requirements, but were not subject to the FFCRA paid leave requirement and therefore cannot claim the credit;

  • Multiple Quarantines for the Same Employee

To the extent the reasons for leave under the FFCRA and New York State law have overlapped, the FFCRA tax credit was limited to a total of ten days of paid leave, per employee.  However, the New York State law does not appear to place a limit on the number of times an employee can receive paid leave, provided each leave is in accordance with a government-mandated quarantine or isolation order.  Once an employer has claimed the FFCRA tax credit for an employee, it appears that it cannot be claimed again for a repeat occurrence of quarantine.

New York State employers should consult with their tax advisor with regard to the availability of the tax credit in specific circumstances.

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