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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30

November, 2020

Three Key Employment Items to Address Before the New Year

By Tracey I. Levy and Alexandra Lapes

As the new year quickly approaches, employers should aim to update their policies and practices to stay legally compliant and prepare their workforce for the new year.   In particular, employers in New York, Connecticut and New Jersey need to ensure they are complying with harassment prevention training requirements, have updated their sick and safe leave and their harassment and discrimination prevention policies, and have updated their procedures to meet new notice, payroll, and tracking requirements.

1. Training

This is year two for meeting the annual New York State and New York City interactive sexual harassment prevention training requirements.  Employers that have not yet conducted training this year should make that a priority before year-end to remain in compliance at both the state and city levels.  Note, for new hires, New York City requires employers with 15 or more employees to conduct initial training within their first 90 days, and all other New York employers are subject to the state’s requirement for training to be conducted as soon as practicable after hire.  When conducting the training, employees must be provided with a copy of the employer’s sexual harassment prevention policy, training materials, and a notice of employee rights.

Connecticut employers are also required to conduct sexual harassment prevention training, and the Connecticut Commission on Human Rights and Opportunities recently extended that deadline to January 1, 2021.  Employers with three or more employees must train all their employees, while the smallest employers need only train those in a supervisory role.  Meeting this training obligation will satisfy an employer’s legal requirements for the next ten years as to existing employees, but on an ongoing basis, new hires need to be trained within six months after they are hired.

2. Policies

Employers should review and revise their employee handbook policies on sick and safe leave, harassment prevention, and anti-discrimination, to ensure compliance with recent changes in the law.

  • Sick and safe leave
    • New York State adopted a state-wide paid sick leave law (in addition to the pandemic-related paid leave law), that requires employers to provide up to seven days of paid sick leave per year, depending on the size of the employer.
    • New York City expanded its paid sick leave law to mirror and expand upon the state law provisions. The amendments will require New York City employers to update their paid leave policies to reflect the new updated accrual amounts and eliminate certain eligibility and waiting period requirements, as well as to add “domestic violence” as an additional basis for taking leave.
    • While Westchester County has its own paid sick leave law, the county has posted a notice on its website that the state law now governs paid leave and employers should refer to the state law for their rights and obligations. Note that there is no similar notice with regard to the Westchester County paid safe leave law, and employers should therefore assume that the safe leave law’s separate paid leave requirements are still in full force.
  • Harassment and discrimination prevention
    • Employers in New York State should update their harassment prevention policies to reflect the State Human Rights Law’s new definition of sexual harassment.
    • New York State employers must also update their policies to provide employees with appropriate notice of their rights and remedies with regard to reproductive health decisions, including a prohibition against discrimination and retaliation based on an employee’s or an employee’s dependent’s reproductive health decision-making.

3. Notice Requirements

The following payroll and tracking procedures must be put in place, in addition to meeting new notice and posting requirements.

  • Payroll and Tracking
  • New York State employers must:
    • Maintain paid sick leave records for no less than six years; and
    • Be prepared to timely provide employees with a summary of the amount of sick leave accrued and used upon request.
  • New York City employers must additionally provide:
    • Accrual, usage, and paid sick leave balance information to employees each pay period;
    • Written notice by January 1, 2021 (see notice link here) of employees’ paid sick leave rights at hire and to current employees of organizations with 100 or more employees, and conspicuously post that notice; and
    • Retain compliance records for at least three years.
  • Westchester County employers must additionally provide:
    • A Notice of Employee Rights and a copy of the County’s Safe Leave Law to all new hires; and
    • Display the required Safe Time poster both in English and Spanish, in a conspicuous location.
  • New Jersey employers with 10 or more employees must ensure they have:
    • Updated their payroll statements to ensure that they each specify: the employee’s gross and net wages; the employee’s rate of pay; and, for hourly employees, the number of hours worked during the pay period.
  • Job Protection
  • New Jersey employers must have conspicuously posted (as of April 1, 2020), two notices regarding employee misclassification.
  • Connecticut employers must provide information on the illegality of sexual harassment and remedies available to new hires within three months of their start date and send this information to each employee.
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30

September, 2020

NYC Amends Sick and Safe Time to Coordinate with NYS Leave; Employer Policies Likely Need to Be Updated

By Tracey I. Levy and Alexandra Lapes

Effective September 30, 2020, New York City is expanding its paid safe and sick time law (New York City’s Earned Safe and Sick Time Act or ESSTA), to bring the ESSTA in line with New York State’s statewide paid sick leave mandate, which is also set to take effect on September 30, by requiring more employers to provide paid leave to employees, and imposing some additional requirements.  More specifically, under the revised ESSTA:

  • employers with one to four employees are required to provide five days (40 hours) of paid safe/sick leave per calendar year if the employer had a net income of one million dollars or more during the previous tax year; and
  • employers with 100 or more employees must provide a total of seven days (56 hours) of paid safe/sick leave per calendar year.

The revised ESSTA also removes the waiting period for newly hired employees to be able to utilize safe/sick time (previously 120-days post-hire) and removes the requirement that an employee work 80 hours in a calendar year to be eligible for safe/sick leave.   Significantly, employees can utilize safe/sick time as it is accrued.  There is a phase-in period for the balance of 2020, in that employers that are required to provide additional leave under the revised law can delay those additional leave entitlements until January 1, 2021.

The revised ESSTA imposes new notice and record-keeping requirements, as well as some fee-shifting to employers.  In particular, it provides that if an employer requests documentation to support that an absence for more than three consecutive work days was used for an authorized purpose, the employer must reimburse the employee for all reasonable costs or expenses incurred for the purpose of obtaining that documentation.  Additionally, employers must provide written notice of employees’ rights under the law upon hire and must conspicuously post that notice in the employer’s place of business, as well as provide current employees with notice of their rights no later than October 30, 2020.  For each pay period, employers must provide the amount of safe/sick time accrued and used during that pay period and an employee’s total balance of accrued safe/sick leave on their pay stub or other form of pay period documentation.  Employers are now required to retain records of complying with these requirements for at least three years.

Other notable additions to the ESSTA include explicitly adding “domestic violence” as an additional basis for taking safe leave, and expanding the definition of “adverse action” and other elements of the law’s retaliation protections.  Finally, the ESSTA adds some more teeth by granting the Department of Consumer and Worker Protection (Department) the ability to open an investigation on its own or after receiving a complaint, and removing the requirement that the Department first attempt to resolve a complaint through mediation.  The person or entity under investigation must respond and provide any information requested to the Department within 14 days (previously 30 days) of receiving notice of being under investigation. Additionally, corporate counsel is granted enforcement rights to initiate court proceedings and bring civil actions for pattern or practice violations. Employers found liable for any official or unofficial policy or practice of not providing or refusing to allow the use of safe/sick time will be subject to $500 in damages per employee, as well as additional damages of up to $15,000 for an unlawful practice or pattern violation.

These changes are significant enough as to warrant revisions to existing safe/sick time policies for most New York City employers, particularly with regard to the changes in accrual amounts, removal of waiting periods, expanded definitions, and the new employer reimbursement obligations for employees securing documentation to substantiate their absence.

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