11

April, 2021

Reconciling 2021’s Expanded NYS and FFCRA COVID-Related Leave Obligations

By Tracey I. Levy

The continuation of the payroll tax credits under the Families First Coronavirus Response Act (“FFCRA”) through September 30, 2021, with an increased range of qualifying purposes, together with new guidance from the New York State Department of Labor on New York’s own COVID-19 leave requirements, can collectively leave employers in a quandary as to their legal options and obligations.  The following table overlays the requirements and eligibility criteria under the state and federal laws.  As referenced in the table:

NYS COVID-19 Leave – is leave for a period of up to two weeks based on a government-issued quarantine or isolation order. New York State mandates employers provide up to three periods of covered leave per employee, but the second and third periods must be for a quarantine based on the employee’s own condition and not merely as a precaution due to exposure to others who tested positive for COVID-19 (see our  NYS COVID leave blog posting).  New York State Short-Term Disability (STD) and Paid Family Leave (PFL) benefits are available simultaneously, with no waiting period, to employees of small and medium employers for the otherwise unpaid portion of a period of leave based on being personally subject to a government-issued quarantine or isolation order.

NYS Paid Family Leave benefit – provides payment to care for a child for the duration of a quarantine or isolation period, and for up to 12 weeks of leave per year at the statutory amount ($840.70/week) through the government-mandated NYS PFL program for care of a family member who is sick with COVID-19 where the family member’s sickness meets the PFL definition of a serious health condition.

FFCRA tax credit for sick leave – provides employers who offer paid COVID-19 leave with a tax credit for a total of two weeks, up to a cap of $511 per day for sick leave due to an employee’s own medical condition and a cap of $200 per day for sick leave due to care of someone else.  Employees who previously received FFCRA COVID-19 leave in the first year of the pandemic are eligible for up to another two weeks of leave as of April 1, 2021.  Note that FFCRA paid leave offered in 2021 is on a voluntary basis and is not mandated, but should be provided consistently to all eligible employees.

FFCRA tax credit for care of a family member – provides employers who offer paid COVID-19 family care leave with a tax credit up to a cap of $200 per day for a total of 12 weeks under the Family Medical Leave Act (FMLA); employees who previously received FFCRA COVID-19 family leave in the first year of the pandemic are eligible for up to another twelve weeks of leave beginning April 1, 2021.  Note that FFCRA paid leave offered in 2021 is on a voluntary basis and is not mandated, but should be provided consistently to all eligible employees.

April 2021 COVID Leave Table

 

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17

March, 2021

ARPA Offers Financial Relief for Employers Facing NYS’s Latest COVID-19 Vaccine/Sick Leave Mandates

By Tracey I. Levy

New York State employers face yet another payroll cost challenge as the state has now mandated, as of March 12, 2021, that employees be granted up to four hours of paid leave (separate from all existing paid time off benefits) for purposes of receiving the COVID-19 vaccine.  This is in addition to the state’s mandates for employers to provide up to three two-week intervals of COVID-19 sick leave, at least a portion of which must be paid by all but the smallest employers, as we have discussed in prior blog articles.

Fortunately, among the financial benefits included in the new American Rescue Plan Act (“ARPA”) are several provisions that are particularly helpful to New York State employers struggling to comply with the state’s unfunded COVID-19-related paid leave mandates.  While not mandatory, ARPA authorizes employers to claim a dollar-for-dollar tax credit for qualifying wages paid to employees for leave taken under the Families First Coronavirus Response Act (“FFCRA”).  ARPA expands the list of FFCRA-qualifying leaves, and it extends the FFCRA leave eligibility period.

Expansion of FFCRA Leave

The FFCRA was originally designed to provide employees with up to 10 days of paid sick leave for six qualifying reasons: (i) inability to work due to a government-issued quarantine or isolation order related to COVID-19; (ii) inability to work due to quarantine or isolation on advice of a health care provider related to COVID-19; (iii) if the employee was experiencing COVID-19 symptoms and seeking a medical diagnosis; (iv) if an employee was caring for someone subject to quarantine for COVID-19; (v) to care for a child whose school or childcare center was closed for COVID-related reasons; and (vi) if an employee was experiencing substantially similar conditions as specified by the Secretary of Health and Human Services.

ARPA expands that list to permit FFCRA paid sick leave for three additional reasons:

  • to take time off to get a vaccine;
  • to recover from illness or injury related to the vaccine; or
  • while awaiting the results of a COVID-19 test or diagnosis because the employer requested that the employee be tested or because the employee was exposed to someone who had tested positive for COVID-19.

The FFCRA originally offered an additional benefit of 12 weeks of Emergency FMLA leave (under the Emergency Family Medical Leave Expansion Act), which comprised two weeks of unpaid, and 10 weeks of paid, leave at two-thirds of the employee’s salary, up to $200 per day.  EFMLA leave was available, however, solely for reason “v” as listed above – to care for a child whose school or childcare center was closed for COVID-related reasons.  ARPA now expands eligibility for EFMLA leave to all nine of the qualifying reasons specified above.   ARPA also increases the paid component so that an employee can receive partial salary for all 12 weeks of the leave period.

Extension of FFCRA Leave

In addition to expanding the qualifying reasons for FFCRA leave, ARPA extends the period in which an employee can qualify for the leave through September 30, 2021.  ARPA also resets the clock on the 10-day cap on eligible COVID-related sick leave as of April 1, 2021, so that employees who have already taken FFCRA qualifying paid sick leave since the start of the pandemic can take up to 10 additional days of leave for a qualifying reason subsequent to April 1, 2021.Facebooktwitterredditpinterestlinkedinmail

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.Facebooktwitterredditpinterestlinkedinmail

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.Facebooktwitterredditpinterestlinkedinmail

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