Paid Leave Time Archives - Levy Employment Law

22

May, 2023

NYS Has Raised the Stakes for Employers That Penalize Employees for Any of 15 Types of Job-Protected Leaves

Employers in New York may be required to provide employees with up to 15 different types of leave, some paid, and some unpaid, some for a few hours, and some extending weeks or even months. Employers are generally aware of certain big categories of obligations with regard to providing employees with time off, like family medical leave and sick leave. But there are a host of other leave categories that may be unfamiliar to them. A recent change to the New York State Labor Law has raised the stakes for employers to know when employees are entitled to leave and ensure that employees are not penalized for taking time off for a legally-protected reason.

Categories of Leave for NYS Employers

As a quick reference point and reality check, the full panoply of leaves available to employees in New York State include the following:

paid/unpaid sick leave;
paid family leave;
paid/unpaid COVID quarantine leave;
partially paid leave for jury service;
paid time off to vote in elections;
paid/unpaid time off for blood donors;
unpaid leave under the federal Family and Medical Leave Act;
unpaid leave for military service;
unpaid leave taken as a reasonable accommodation of a medical condition, religion, or for pregnancy, childbirth or related conditions;
unpaid break time for nursing mothers;
unpaid leave for victims of domestic violence, sexual assault or human trafficking (some localities in New York State require paid time off for this purpose);
unpaid leave to testify as a crime victim;
unpaid family military leave;
unpaid leave for bone marrow donors; and
unpaid leave as a first responder.

Variations in whether an employee needs to be paid for the time off, as noted above, generally depend on the size of the employer. Also, some of the leave laws apply to employers of any size, while many others do not become applicable until the employer has a minimum of 10, 20 or more employees, depending on the specific law.

NYS’s New Restrictions on No-Fault Attendance Policies

New York State has adopted an additional enforcement mechanism to protect employees who take time off that is legally protected under federal, state or local law. The New York State Labor Law was amended earlier this year to provide that employees cannot be retaliated against for using any “legally protected absence.” The new law defines it as “retaliation” for employers to assign points or demerits against employees for being absent from work for a legally-protected reason, where those points can then result in disciplinary action, delay or denial of a promotion, or loss of pay.

Pitfalls for Employers

Employers that fail to grant employees time off and satisfy other requirements already face liability under the respective leave laws. In addition, if an employee is absent from work for a reason that is protected under one of those laws, and the employee is then penalized in some fashion for that absence, the employer now may face additional liability under the Labor Law, including penalties starting at $1,000 and going as high as $20,000 for each employee penalized, an award of liquidated damages, and an order rehiring or reinstating the employee together with lost pay or an award of front pay in lieu of that. Individuals can also file a civil action for violating the retaliation prohibition, and recover liquidate damages of up to $20,000, costs and reasonable attorneys’ fees.

Consider Adopting Precautionary Measures

Employers should confirm with legal counsel which of the leave laws actually apply to their employee population. Employers that have robust employee handbook policies, that reference each of the applicable categories of legally protected leave under New York law, may be able to rely on that reference point to provide notice to employees. A handbook can also serve as a resource for managers to ensure they are properly applying the leave of absence policies.

Employers with less robust handbook policies, or none at all, have additional hurdles to achieve compliance. Managers need to be schooled in the range of leaves available, and know to seek advice whenever there is any question whether a request for leave is for a job-protected reason.

In addition, systems that are used to track employee attendance should be designed to include fields that capture the range of legally protected absences that an employee might take. That way the employee has the right place to code the absence to reduce the risk that it will be improperly counted against a no-fault attendance policy.

By Tracey I. Levy

7

February, 2023

Legally-Prescribed Policy Wording Ensnares Those Striving to Be Employers of Choice

I write a lot of policies. They come with the advisory work that I do, and I also gravitate toward those types of projects. In doing that work, one of my frustrations has been the increasing degree to which legislatures are imposing new legal obligations on employers – particularly, but not exclusively, with regard to paid and unpaid time off benefits – and mandating specific language be included in employer policies.

Today I want to focus on the wording requirements, because they can be so particular and such an affront to well-intentioned employers. Pet peeves, because they cause me so much pushback from my clients – are provisions like the New York City lactation accommodation law and the New York State paid sick leave law.

Specificity Feels Like Mandating Minutia

New York City requires employers to have a lactation policy with very specific provisions, the granularity of which can produce surprise or dismay from employers. Under the city’s law, the employer’s policy must include language that the employer will respond to a request for a lactation room within no more than five business days. The policy also must outline a procedure to follow when two or more individuals need to use the lactation room at the same time. New York State recently adopted its own lactation accommodation requirement applicable to private employers, and that law similarly requires a written policy that incorporates language about the five business day response time.

I draft the appropriate language, and then the conversations with my clients go something like this:

Client: Five days?!

Me: Yes, five business days.

Client: Of course we are going to be responsive. Why would it take us five business days to get back to our employee, and why does it have to be spelled out in the policy?

Me: I understand you will get back to people promptly, but New York City law says that language has to be there.

Client: And why do we have to spell out what happens if two people need the room at the same time? We’ll just work it out.

Me: I know you will, but again, the city requires it.

Some Provisions Are Effectively Meaningless

Another requirement that I have had to explain numerous times to clients is the provision under the New York State paid sick leave law that mandates employees be allowed to carry over any unused days from one year to the next, but allows the employer to cap the number of days used in any given year at the annual legal entitlement (i.e.: 40 hours or 56 hours, depending on the size of the employer). That conversation generally proceeds like this:

Client: What is this part about carrying over days but then not being able to use more than one year’s allotment? What is the point of that?

Me: It is intended to ensure that, for example, an employee who gets sick or injured early in the calendar year will have paid sick days available, carried over from the prior year.

Client: Okay, I get that. But we front-load the days at the start of each calendar year. Everyone starts with a fresh bank with no accrual time.

Me: I understand, and under New York City’s earlier version of this law, the city excused you from the carryover requirement if you front-loaded the days. Employers asked New York State to do the same, but when the state issued its regulations, it expressly rejected that exception.

Client: So we have to let employees carryover unused days, but we don’t ever have to allow them to actually use them?!

Me: Exactly.

My client comes away bewildered, and I am frustrated that legislators and regulators have so little confidence in employers that they feel the need to be this prescriptive.

Two Universes of Employers

New York City and New York State in particular, but a trend I see repeating itself throughout the country, are continuously proposing and to a lesser degree adopting new employment law mandates, especially with regard to protecting employees’ time away from work. Certainly there are employers that will only provide that which is legally required, and only when they feel they have no choice but to do so. Often in my experience those organizations employ mainly hourly workers, for positions at the lower rungs of the pay scale. The specificity written into the time off laws is intended to dictate obligations for those employers and thereby assure protections for their employees.

The challenge is that prescriptive legal mandates do not consider the other universe of employers – those that are vying to be an “employer of choice” and that tend to err on the generous side when it comes to leave and benefit policies. Those employers often want their handbook policies to reflect the organization’s commitment to the welfare of their employees by outlining expectations for appropriate behavior, offering a generous safety net of leave time and benefits for employees to recharge and address issues personal to them and their families, and empowering employees to manage their time accordingly.

As I recounted in the synopses above, the organizations that want to be employers of choice recoil at policy language that implies they would be anything but generous and responsive to employees’ accommodation and leave requests. They are striving for a friendly tone, not legalistic language. Increasingly they are experimenting with various versions of unlimited time off. “Take whatever you need, and we trust you to get the work done,” is the message they seek to send to their employees.

But prescriptive policies do not easily allow for that. Mandates regarding carryover, approval processes, notice and usage often necessitate that the policies in the handbook take a tone quite different from and more complex than the generous message that these employers wish to project.

Considerations for Legislators and Regulators

Legal mandates need to recognize and consider both realities – ensuring a safety net of protections for more vulnerable workers, and empowering more generous organizations to create the supportive culture to which they aspire. This means not only authorizing organizations to offer benefits and protections that are greater than those required by the law, but giving those organizations flexibility in their policy language, provided they can demonstrate in their implementation that the benefits employees receive meet or exceed that which the laws require.

By Tracey I. Levy

29

August, 2022

Unlimited Time Off Presents Hidden Challenges for Employers

I have increasingly been fielding inquiries from organizations that are looking to implement some version of unlimited time off for their employees. They saw that employees continued to be productive while working remotely during the pandemic, and they want to give them the flexibility to take time off as/when needed – provided the work still gets done. The motives behind these policies are commendable, but the challenge lies in their implementation.

Consider Scope as to Legally Required Time Off
Employers currently face a myriad of paid leave requirements, which vary by state and locality. These laws may mandate paid time for sick leave, domestic violence victims, care of family members, voting, jury service, witness duty, blood donation, bone marrow donation, attending school meetings and activities, public health emergencies, bereavement, or for no specific reason at all. When considering an unlimited time off policy, employers need to determine whether the policy is intended to cover some or all of these paid time off legal requirements.

Employers are also required in various locations to provide a range of unpaid time off, which may include family and medical leave, pregnancy disability leave, military leave, family military leave, leave for first responders, leave for crime victims, and lengthier leave for jury service. Some states offer partial compensation through state-regulated programs for certain periods of unpaid leave. In most circumstances, even the biggest proponents of unlimited paid time off do not intend to pay for the time used during most or all of these leave periods, particularly not for legally required leaves that can extend for months at a time. The scope of the unlimited time off policy in relation to legally required leaves needs to be determined in advance so that policies can be properly drafted.

Is This Just for the Employee’s Self-Care, or Family Too?
Also when considering scope, employers should determine whether they want unlimited paid time to be available for care of family members. Employers may intend for the unlimited paid time to cover employees who are themselves ill or injured, even for extended periods of time, and they can cap their payroll exposure by requiring qualifying employees to apply for short-term and long-term disability benefits for more extended absences. However, most paid sick leave laws are not limited to leave for the employee’s own illness or injury. The sick leave laws extend to family members – often spanning multiple generations and even individuals who are “like” family but with no blood or marital relationship.

Granting unlimited paid time off to care for family members can quickly leave an employer in an awkward situation of trying to balance its broad policy offering, the statutory protections that cover at least part of the leave time, and the need to have the employee get work done. Some employers address this by carving out care of family from their “unlimited” time off policies. They may choose to grant only the legally required leave for care of these individuals, or may provide a benefit that is more generous than the law, but less than “unlimited.” Other employers reframe the unlimited time off policy as intended for discretionary and personal reasons, akin to a combination of vacation, personal days and flexible holidays, and maintain a separate, statutory-compliant paid sick and safe leave policy that caps the amount of time employees can use for their own or a family member’s illness, injury or related medical or safety reasons.

Consider Approvals and Documentation
The temptation and appeal of an unlimited policy is to be free from all the legal mandates related to time off policies. Senior leaders just want employees to be “responsible adults,” take the time they need and make sure they do their jobs.

The reality is that reasonable minds will differ as to when an employee is acting responsibly when determining when and for how long to take off from work. “Unlimited” time does not relieve managers of the responsibility to manage their employees.

While requesting medical or other documentation in support of a time off request may seem superfluous if the time off is “unlimited,” such documentation can be critical to ensure that, when time is being taken for legally protected reasons, it is given appropriate consideration. And when time is being taken “just because,” managers should have greater flexibility to advise employees if the scheduling of that time off would be contrary to business needs, and delay or deny those requests.

Spell It All Out in Writing
An unlimited paid time off policy must address all the above considerations and the parameters that the employer has chosen to set with regard to the scope, use, timing, and ancillary requirements under its policy. To the extent that paid or unpaid leave laws may require specific language or provisions to be included, that too should be folded into the unlimited time off policy – if the leave law is intended to be satisfied through the unlimited paid time off policy. And if the legally protected leave is being carved out as an exception to “unlimited” paid time off, then that needs to be made clear in the written policies as well.

Finally, in those locations where paid sick leave and other specific time off accruals and usage need to be reflected on pay stubs or elsewhere, employers should consult with legal counsel and their payroll provider as to where and how accruals should be reflected. Some jurisdictions have held that no accruals need to be posted when a policy grants unlimited time, while other jurisdictions have been less clear on how that notice requirement is to be satisfied.

Keep Perspective
Legislators mean well when they adopt new paid and unpaid leave requirements. But these laws are often written from the perspective of protecting employees from miserly employers. They can feel unduly constricting to generous employers that want to give employees time to relax and manage their personal obligations, but do not want to run afoul of the law.

Some version of “unlimited” time off is achievable even in the most regulated localities. The policies just need to be thought through in advance, in the context of applicable leave laws, and drafted to cover the relevant parameters. This is one of those situations in which it would be prudent to seek guidance from legal counsel.

By Tracey I. Levy

25

July, 2022

CTFMLA Notice to Employees Is Overdue, Employers Need to Update Policies

Connecticut employers sorting through the complexities of the amended Connecticut Family and Medical Leave Act (CTFMLA) and Connecticut Paid Leave Act (CTPL) need to ensure they are providing all new hires with the requisite notice, which explains CTFMLA entitlements, employee obligations, the prohibitions against retaliation, and the procedures to file complaints with the Labor Department for alleged violations. This is a new requirement, effective as of July 1, 2022.

Employers additionally have an ongoing obligation to provide employees with notice of their rights under CTFMLA and CTPL on an annual basis. Employers may wish to update their employee handbooks to include the notice provisions. While not yet final, pending regulations proposed by the Department of Labor indicate that such a handbook update will satisfy the annual notice requirement. Also, FAQs issued by the Department of Labor include this recommendation.

Expanded Reasons for Leave

CTFMLA and CTPL collectively provide eligible employees with job-protected leave and income replacement while the employee:

recovers from or cares for a family member with a serious health condition;
bonds with a child newly added to the family;
serves as an organ or bone marrow donor;
addresses qualifying exigencies related to a close family member’s military service; or
cares for a close family member who is seriously ill or injured while on active duty in the armed forces.

CTFMLA provides the job-protected leave entitlement, while CTPL is an income replacement program. CTPL is additionally available for employees who have been impacted by family violence, and in that context the employee’s ability to take the leave is protected under the Connecticut Family Violence Leave Act.

Other CTFMLA Provisions Also Expanded

Employers should note that these laws are newly effective as of January 1, 2022. They alter and expand employers’ prior CTFMLA obligations and add a new layer of paid leave. Employers that were familiar with and meeting the prior CTFMLA requirements must ensure that they have updated their policies and practices to reflect the changes to the law – which expand the uses of CTFMLA, and shift from a schedule of leave taken over a 24-month period to a program of up to 12 weeks of job-protected leave over a 12-month period (thereby more closely mirroring the federal FMLA). The new CTFMLA further grants employees who are incapacitated due to pregnancy an additional two weeks (14 in total) of job-protected leave, and again mirrors the federal FMLA in that it provides employees who are caring for a covered service member with up to 26 weeks of job-protected leave in a 12-month period. Another key change under the new version of the CTFMLA is that, while employers can require employees to use their accrued, paid time off during their leave period, employees can exempt from that requirement and preserve up to two weeks of their paid time off to be used for other purposes.

By Tracey I. Levy

27

April, 2022

Maine as National Example Disappoints Employers with Newest Law on Paid Time Off

By Tracey I. Levy

A plethora of paid leave laws currently plague multi-jurisdiction employers and they seem to multiply with each passing year. The concept of paid sick leave, which originated in San Francisco in 2007, has spread to 16 states and at least 25 localities across the country.

Sick Leave Isn’t Just for Being Sick, And Other Complications

“Sick” leave as defined by many of these laws is a far cry from typical employer policies in that usage often extends beyond an employee’s own illness and injury to include:

routine well visits for medical care;
care of an employee’s family member (in the broadest sense);
“safe” time for victims of domestic violence, sexual assault or similar crimes; and
coverage when a school, childcare center or place of employment is closed due to a public health emergency.

Particularly challenging for employers are the differences between the laws, in terms of leave time granted, permitted uses, accruals, carryover and requisite notice. So while the laws consistently state that an employer can maintain its own sick leave policy provided it meets all the elements of the legally-mandated sick leave, the varying requirements collectively make it nearly impossible to have one fully-compliant one-size-fits-all policy.

Maine Approached It Differently

Enter Maine with its paid personal leave law. It was refreshing in its simplicity. Rather than adding an ever more expansive list of reasons why employees could use paid leave, the Maine law says the reason is irrelevant. If you have more than 10 employees, full-time, part-time or otherwise, then you must provide them with up to 40 hours of paid leave, per year, for any purpose, provided they give reasonable notice. While there surely are employers of that size who do not already provide 5 days of paid time off per year, a great many provide that much or more. For those with existing paid time off policies, tailoring those policies to comply with the new Maine law should be relatively easy.

The only element of the law that deviates from typical employer practice (but aligns with most of the paid sick leave laws), is that employees need to be able to carryover up to 40 hours of accrued, unused paid leave from one calendar year to the next. When not subject to legal mandates, private sector employers typically restrict carryover of paid time off to a fixed number of days and require that the carryover days be used within a duration of three to six months into the new year. Employers may incur a cost when carryover is mandated, in that accrued days may need to be reflected as a pending liability in their business records. Employers are therefore disinclined to allow too much in the way of carryover. While the Maine carryover mandate may require employers to modify their vacation or other paid time off policies, overall the law is simpler than the approach taken in other states and localities.

And Then Maine Complicated Things

But now, things have changed a bit. Maine’s governor just signed a new law, which takes effect January 1, 2023, that amends the state’s wage statute to require employers to pay out employees for accrued, unused vacation upon termination. Other states, like Massachusetts, Rhode Island and Illinois, have similar legal requirements, which thereby discourage employers from granting vacation time in a lump sum at the outset of the year, and deny employees the flexibility that comes with front-loaded vacation time.

Lesson for Legislators

Adopting ever more prescriptive paid time off laws sows confusion and impedes uniformity in approach for multi-jurisdiction employers. As Maine demonstrated with its 2021 paid personal leave law, states can achieve the overarching goal of granting employees the assurance of paid days off to manage their personal lives, while minimizing the strictures that impede employers’ ability to draft consistent policies and manage their workforce.