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.

Facebooktwitterredditpinterestlinkedinmail
25

September, 2020

DOL Revises Regulations to the Families First Coronavirus Response Act

By Alexandra Lapes and Tracey Levy

Effective as of September 16, 2020, the United States Department of Labor (“DOL”) issued revised regulations to its temporary rule issued on April 1, 2020, implementing provisions of the Families First Coronavirus Response Act’s (“FFCRA”) paid sick leave and paid family leave mandates, to clarify workers’ rights and employers’ responsibilities, after a United States District Court for the Southern District of New York (“District Court”) struck down several portions of the temporary rule as invalid on August 3, 2020.

Specifically, the District Court ruled four parts of the DOL’s temporary rule regarding the FFCRA paid leave provisions were invalid: (1) the requirement that paid sick leave and expanded family and medical leave are available only if an employee has work available from which to take leave; (2) the requirement that an employee may take FFCRA leave intermittently only with employer approval; (3) the expanded definition of “health care provider” and whom an employer may exclude from being eligible for FFCRA leave; and (4) that employees who take FFCRA leave must provide their employers with certain documentation before taking leave. New York v. U.S. Dep’t of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020).

As previously reported in our Law Blog, the Emergency Paid Sick Leave Act (“EPSLA”) grants paid sick leave to employees who are unable to work or telework due to a need for leave because of any of six COVID-19-related criteria. Similarly, the Emergency Family and Medical Leave Act (“EFMLEA”) applies to employees unable to work or telework due to a need for leave to care for a child due to a public health emergency.

The DOL’s revisions reaffirm and provide further explanation of the following:

• Employees may take FFCRA leave only if work would otherwise be available to them.
The DOL’s April 1, 2020 rule stated an employee was entitled to FFCRA leave only if the qualifying reason was the actual reason (or the but-for cause) why the employee was unable to work, and therefore did not apply if an employee was furloughed or was unable to work because an office was closed. The District Court held the work-availability requirement was invalid because the DOL had only explicitly applied it to three of the six qualifying reasons for FFCRA leave.

In response, the DOL has reiterated that an employee may take sick leave or expanded family and medical leave only to the extent that a qualifying reason is the sole (“but-for”) reason the employee is not working. The DOL extended that standard to all qualifying reasons for FFCRA leave. The DOL explained that removing the work-availability requirement would not serve the purpose of the FFCRA paid leave provisions, because if there is no work to perform, there would be no need to discourage potentially infected employees from coming to work. However, the DOL has made clear that there must be a legitimate, non-retaliatory reason why the employer does not have work for an employee to perform.

• Where intermittent FFCRA leave is permitted by the DOL’s regulations, an employee must obtain employer approval to take FFCRA leave intermittently.
The DOL also confirmed its original position that employer approval is needed to take intermittent FFCRA leave. The District Court had struck down the employer-approval requirement as not adequately explained, so the DOL responded by providing more of a rationale for this requirement.
Tackling anticipated confusion for employees who have children in school on a hybrid schedule, the DOL clarified that the employer-approval requirement does not apply to employees who take FFCRA leave to care for their children on remote learning days, provided the child is attending school on the days that the school is open to the child. For FFCRA purposes, the DOL has reasoned that, if the remote learning days are determined and directed by the school then each such day constitutes a separate qualifying event for FFCRA leave, and such absences are not deemed to be “intermittent”. Employer consent would still be required, though, if an employee’s child’s school is closed for multiple days, and the employee seeks to use FFCRA leave on only some of those days (an intermittent basis) while the school is closed.

Similarly, the DOL explained that an employee is not eligible for FFCRA leave if the employee elects remote schooling for the employee’s child when in-person attendance would otherwise be possible. However, if an employee’s child is under a quarantine order or has been advised by a health care provider to self-quarantine, then FFCRA leave would be available, and if the employee asks to use FFCRA leave on only select days that the child is quarantined at home, then employer approval would be required for the leave to be taken intermittently.

The DOL’s revisions also amend and clarify that:

• The definition of “healthcare provider” includes only employees who (1) meet the definition of that term under the FMLA regulations and (2) who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
Under the FFCRA, employers are allowed to exclude employees who are “healthcare providers” from FFCRA leave coverage, recognizing these employees’ presence at work is essential in preventing disruptions to the health care system’s capacity to respond to COVID-19. The District Court struck down the DOL’s original definition of “healthcare provider” as being overly broad because it excluded employees in medical services who were not directly providing patient care. The DOL accordingly adopted a narrower definition of the term in the revised regulations that focuses on whether the employee is providing services that are integrated with and necessary for patient care.

• Employees must provide required documentation supporting their need for FFCRA leave to their employer as soon as practicable.
Under the FFCRA, employees are required to provide notice to receive paid sick leave after the first workday of leave, or for expanded family and medical leave, as soon as practicable, when the necessity for such leave is foreseeable. In the temporary rule issued by the DOL, it required this documentation be submitted “prior to” taking FFCRA leave, which the District Court held was inconsistent with the statute’s notice requirements. The DOL amended the new regulations to clarify that notice be provided as soon as practicable, which may be at the same time an employee requests leave, but the DOL recognized that is not necessarily always the case.

Facebooktwitterredditpinterestlinkedinmail
30

March, 2020

US DOL Issues Poster, Guidance – Answers Some Open Questions Regarding Emergency Paid Sick Leave

By Tracey I. Levy

The U.S. Department of Labor has issued a mandatory poster and updated its initial guidance to answer many more of employers’ questions with regard to the application of the Emergency Paid Sick Leave law, which takes effect April 1, 2020.  The poster must be posted in a conspicuous place on the employer’s premises or on a website for employee information, or emailed or direct mailed to all employees.

The DOL’s guidance includes the following key points, many of which we had referenced in our last HR Strategy article on the new federal and New York State emergency paid sick leave laws.

Exception for Small Businesses:

Employers with fewer than 50 employees can demonstrate that providing Emergency Paid Sick Leave or Emergency FMLEA will jeopardize the viability of their business as a going concern, and thereby claim an exemption from the laws’ requirements, if an authorized officer of the business determines that:

  • Providing the paid leave would cause the business’s expenses and financial obligations to exceed available revenues, such that the business would cease operating at a minimal capacity;
  • The absence of covered employees would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
  • The business lacks sufficient workers who are able, willing, qualified and available at the time and place needed to cover for the employee(s) requesting paid leave and the work the requesting employees would perform is needed for the small business to operate at minimal capacity.

It remains unclear what documentation an employer will need to maintain to meet this legal standard, so employers seeking the exemption may want to err on the side of saving any potentially relevant financial records, communications and notes of their deliberative process.

Counting the 500-Employee Threshold

The federal emergency paid leave laws apply only to employers with fewer than 500 employees.  Only individuals employed in the United States (including all 50 states, the District of Columbia, or any Territory or possession of the U.S.) are included in that number.  Multi-national entities with a relatively small U.S.-employee presence therefore are covered by the federal laws as to their U.S. employees, even if they have more than 500 employees globally.  Also, full-time and part-time employees count equally toward meeting that threshold, as do employees on leave, temporary employees (even if they are employed through a temp agency), and day laborers supplied by a temporary agency.  Only independent contractors are excluded from the headcount.

Documenting Leave is Requested for a Qualifying Reason

The DOL has referred employers to the Internal Revenue Service for forms, instructions and information on what documentation is required to support an employee’s request for leave and what documentation must be retained to support the employer’s claim of a tax credit.  The IRS has not yet issued that guidance, but employers can check https://www.irs.gov/coronavirus for updates.

Generosity is Permissible, but Not Reimbursable

For higher-earning employees, employers may choose to pay them above the statutory cap for leave taken as Emergency Paid Sick Leave or Emergency FMLEA.  However, employers cannot claim a tax credit for payments in excess of the statutory cap.

Employers may also permit (but may not require) employees to apply their regular accrued, paid leave time under the employer’s policies to supplement the amount received for Emergency Paid Sick Leave or Emergency FMLEA.  For example, an employee who is receiving two-thirds of salary as Emergency Paid Sick Leave may request to use accrued, paid leave in one-third of a day increments to augment the federal law benefit.  In this situation, as well, the employer tax credit is limited to payments up to the statutory amounts.

Intermittent Leave May Be an Option

Employees must take Emergency Paid Sick Leave in full-day increments.  With that caveat, employers may permit an employee to use Emergency Paid Sick Leave and Emergency FMLEA on an intermittent basis (rather than in a single block of time) in select circumstances.  Intermittent leave may be authorized for an employee who is caring for a child whose school or child care center has been closed due to COVID-19 precautions, regardless of whether the employee is reporting to the workplace or working remotely.  If leave is being taken under any of the other five Emergency Paid Sick Leave categories, the guidelines provide that, unless the employee is working remotely, intermittent leave is not available.

Paid Leave is Not Required for Furloughed Employees or if the Workplace Has Been Closed

Employees are only eligible for paid leave if they are still working as of the date the leave is requested.  If the entire worksite has been closed or the requesting employee has been laid off, even temporarily, and the employee is therefore not doing any work for the employer, even remotely, then the employer is not required to provide any amount of paid COVID-19-related leave under the federal laws.  If an employer closes a worksite while an employee is already on covered paid leave, the employee must be paid for leave take only up to the date of closure.

Emergency FMLEA Counts as FMLA Time

For employers who are covered by the federal Family and Medical Leave Act, leave previously taken within the employer’s designated 12-month period counts against, and may thereby reduce, the leave available under Emergency FMLEA.  Similarly, to the extent an employee takes leave in the next eight months for Emergency FMLEA, the leave taken will count against the employee’s 12-month FMLA leave entitlement.

Facebooktwitterredditpinterestlinkedinmail
8

March, 2020

Managing Workplace Epidemics: Coronavirus Concerns in Westchester County and New York City

By Tracey I. Levy, Esq. and Alexandra Lapes, Esq.

As the global Coronavirus situation is expanding rapidly and hitting close to home, Westchester County and New York City employers should review their communicable disease plans and implement preventative measures to limit the potential effect of illness in the workplace.

Key strategies for employers in preparing and responding to a Coronavirus outbreak are:

  1. Implement a communicable disease policy

If your organization has not done so already, HR professionals should devise a communicable disease policy and prevention plan in case the outbreak directly impacts their workplace.  An effective policy should identify and communicate the organization’s objectives and address workplace safety precautions, such as employee travel restrictions, mandatory reporting of exposure, reporting to public health authorities, employees quarantined or in isolation, and facility shutdowns.

Employers should also establish policies to encourage employees who feel sick to stay home, post reminders on proper handwashing and coughing/sneezing practices and make hand sanitizers and tissues available throughout the workplace. Remind employees of relevant policies that may provide them with paid time off in these circumstances, including time off under Westchester County’s Earned Sick Leave Law and New York City’s Earned Sick and Safe Time Act, as discussed below.

  1. Make sure not to discriminate

Because of the heightened risk that COVID19 presents for individuals with underlying medical conditions, in the course of implementing a communicable disease policy or administering a response to the current Coronavirus threat employers may learn, inadvertently or otherwise, of latent disabling conditions impacting some of their employees.  Employers should treat all such information as confidential, and take care not to engage in any actions that could be perceived as discriminating based on a disability.

Employers also should avoid, and take measures to prevent, any harassment or discriminatory actions that target individuals who may be associated with an ethnic or religious group, or who have relatives from a particular country, that has been more substantially impacted by the spread of the virus.  Employment policies should be consistent with public health recommendations, as well as local, state, and federal workplace laws.

  1. Consider alternative work arrangements

Encourage sick employees to stay home and focus on their health, and recovering employees or those who have been asked to self-quarantine to do so.  Consider flexible work schedules to limit the number of workers in the same work area or worksite, reduce exposure during commutes on mass transit at peak times, and reduce face-face contact.  Use virtual work environments to replace in-person meetings with video or telephone conferences. Leverage remote access solutions where logistically possible to enable healthy employees to stay productive in the event the workplace or specific individuals are subject to a quarantine.

  1. Advise employees before traveling

Employers should continuously check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which an employee may need to travel.  Advise employees to check themselves for symptoms before travelling and notify their supervisor if they need to stay home.  If an employee becomes sick while travelling or on temporary assignment, ensure the employee understands to notify a supervisor and promptly call a local health care provider.  New Yorkers can call the State hotline at 1-888-364-3065, and for Westchester County COVID-19 information call 211.

  1. Manage employee benefits and compensation

Non-exempt employees must be paid overtime compensation if they work in excess of 40 hours in a workweek while covering for other employees absent due to the Coronavirus.  Time spent working from home or through other remote work arrangements also is compensable.

Most employees in Westchester County and New York City will be eligible for up to five days of paid sick leave, under local paid sick leave laws, if they personally contract the Coronavirus, their workplace is closed due to a public health emergency, they are caring for a family member who has contracted the virus, or they are caring for a child whose school or childcare provider is closed due to a public health emergency.

Employers should consider whether, independent of any available paid leave time, they want to continue to pay employees for all or some portion of the time that they are unable to or are precluded from working because of the Coronavirus.  While some organizations have suggested leave donation plans as a means of encouraging sick employees to stay home if they have exhausted their paid time-off benefits, such programs need to be carefully considered.  If not appropriately structured, the donated time can have tax consequences for the donor and the recipient.  Further, the benefits of such a program for small and mid-size employers may prove to be few or fleeting in the context of a pandemic, as donated time may benefit the first to fall ill, but then leave little in the bank for the donors and others who later contract the disease.

New York State Paid Family Leave is available for employees who may need to care for a close family member with a serious health condition.  However, the state defines a “serious health condition” as an “illness, injury, impairment, physical or mental condition requiring inpatient care in a hospital, hospice, or inpatient/outpatient residential health facility;” or “continuing treatment or supervision by a health care provider.”  Under this definition, care of a family member who is hospitalized due to Coronavirus or who has complications from the virus due to an underlying medical condition, such as asthma or respiratory disease, likely would be covered.  Care of a family member who experiences milder Coronavirus symptoms, more akin to the flu, likely would not be covered.

  1. Stay informed on changes to state and local law

Local paid sick leave laws in Westchester County and New York City present some additional challenges for employers.  The laws permit employers to require employees to provide documentation from a health care provider after three consecutive sick days, but employers may not require the health care provider to specify the medical reason for sick leave.  Employers need to balance this provision against the need to be informed, for public safety reasons, if an employee has been diagnosed with the Coronavirus or is being quarantined so as to take appropriate precautions to prevent the further spread of the virus throughout the workplace.  Also, the National Centers for Disease Control and Prevention advises employers not to require medical certification at this time to validate employees who are sick with acute respiratory illness, as they anticipate healthcare providers and medical facilities may be extremely busy and not able to provide such documentation.

Notably, while it has been widely reported that New York State Governor Cuomo plans to amend New York State’s paid sick leave bill to deal with the Coronavirus, there currently is no state-wide paid sick leave law in New York.  Paid sick leave at the state level is simply proposed legislation that needs to make its way through the legislative process and, even if enacted, as proposed the law would not take effect until April 2021.

  1. Employee morale and business continuity

Lastly, employers should endeavor to communicate information to employees about their organization’s communicable disease plan, efforts to reduce the risks of contagion in their workplace, and policies and benefits for those who are directly impacted by the Coronavirus.

Facebooktwitterredditpinterestlinkedinmail
31

May, 2019

Why Local Law Matters for Westchester Employers

By: Tracey I. Levy and Alexandra Lapes

Employers in Westchester County must pay close attention to legal developments at the county level, as the past ten months have brought an unprecedented array of new mandates specific to private employers in the county, and further requirements are likely to come.  For those employers who may have overlooked it, the new mandates include paid leave benefits – first sick time and soon “safe time” leave – as well as restrictions on hiring practices – a ban on salary history inquiries, and limits on when employers can inquire about criminal history.

Earned Safe Time

Beginning October 30, 2019, employers in Westchester County must provide employees with up to 40 hours of paid safe time leave for victims of domestic violence, family offense matters, and human trafficking.  Employees are eligible for safe time leave after being employed in the county for more than 90 days in a calendar year, on a full-time or part-time basis.

Employees can use their safe leave time to:

  • attend or testify in criminal or civil court proceedings related to domestic violence or human trafficking; or
  • move to a safe location.

In providing the time, employers cannot set a minimum increment of use but can require an employee to provide reasonable documentation that leave was used for a covered purpose.  Employers must keep confidential the information an employee provides in support of a request for safe time leave, and such information cannot be disclosed without the employee’s written permission, or as required by law.  Employers must keep any health or safety records on a separate form and in a separate file from an employee’s other personnel information.

Mimicking the County’s paid sick leave procedural requirements, employers are obligated to:

  • post a copy of the law in English, Spanish and any other language deemed appropriate by the County, in a conspicuous location in the workplace; and
  • to provide employees with a copy of the law and written notice of how it applies with 90 days of the effective date and, thereafter, upon hire.

Employers face a fine of up to $500 per violation for failing to meet the notice and posting requirements.

Earned Sick Time

Since April 10, 2019, employers in Westchester must provide employees with at least one hour of sick time for every 30 hours worked, up to a maximum of 40 hours per year.  For employers with five or more employees, the sick time must be paid.

Employees can use their sick time:

  • to care for themselves or a family member due to illness, injury, or health condition, need for diagnosis, care, or treatment of mental or physical illness, injury, or health condition, and for preventative medical care;
  • when their place of business, child’s daycare, or child’s school closes due to public health emergency; or
  • if public health authorities deem the employee or a family member a health risk to the community because of his or her exposure to a communicable disease.

As mentioned above, in addition to providing the time, employers must also conspicuously post a copy of the law in English, Spanish and any other language deemed appropriate, as well as provide employees with a copy of the law and written notice of how it applies to them as of July 9, 2019, and, thereafter, upon hire.

An employer that willfully violates the notice and posting requirements may be subject to a fine of up to $500.

The Fair Chance to Work Act

As of March 4, 2019, Westchester County law prohibits employers from discouraging applicants with an arrest record or criminal record from applying for jobs, and from asking about arrest and criminal history on the initial employment application.

More specifically, it prohibits employers with at least four employees from:

  • making oral or written inquiries or statements related to criminal convictions or arrest records in an employment application;
  • disqualifying an applicant from employment for refusing to answer an unlawful inquiry or statement related to criminal history, or
  • specifying qualification criteria based on criminal history in a job advertisement.

Employers can inquire about criminal history after the stage of the initial employment application, but the law requires that employers conduct a relevance analysis under Article 23A of the New York Correction law before making a hiring decision based on an applicant’s adverse criminal history.  An applicant who is denied employment based on criminal history may request a written statement from the employer that details the reasons for the adverse employment decision.

The law recognizes two limited exceptions to the restrictions on criminal history inquiries:

  • when the employer is subject to “state, federal or county law that required criminal background checks for employment purposes or bars employment based on criminal history”; or
  • when the applicant is applying for a position at a law enforcement agency, or as a police/ peace officer.

Employers face fines up to $10,000 for willful, wanton, or malicious violations, backpay and compensation, as well as costs and reasonable attorney’s fees.

The Wage History Anti-Discrimination Law

As of July 9, 2018, employers in Westchester have been prohibited from:

  • relying on a prospective employee’s current or prior wage history when determining the wages for a prospective employee, unless the information is voluntarily provided by the prospective employee to support a wage higher than the one being offered by the employer;
  • requesting or requiring that prospective employees disclose current or prior wage information as a condition of being interviewed, considered, or offered employment; and/or
  • seeking wage information from any current or former employer of the prospective employee.

If a prospective employee responds to an offer by providing his or her wage information to support a wage higher than the one offered by the employer, the employer may only seek to confirm that wage information from a current or former employer after obtaining written authorization from the prospective employee.

Employers are prohibited from retaliating or refusing to hire an individual based upon their salary history or because they exercised their rights under the law.

Facebooktwitterredditpinterestlinkedinmail
Back to Top