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

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20

March, 2022

COVID Mandates Have Lessened But Employers Still Have Obligations

By Alexandra Lapes and Tracey I. Levy

New York State employers may now suspend implementation of their infectious disease prevention plans (otherwise known as HERO Act plains), as the state’s order designating COVID-19 as a highly contagious communicable disease expired on March 17, 2022 and thus far has not been extended.  As COVID-related mandates have largely been lifted or expired across the tri-state, employers are once again left in a state of uncertainty – after two years of massive regulations, what is still required and where do employers have discretion to act independently in responding to the pandemic?  The short answer is that it varies, and we have endeavored to summarize the current state as of March 2022.

COVID-Related Restrictions and Current Effect

CDC Guidelines Applicable Throughout the County

The CDC continues to require individuals who are two and older to wear a face mask on public transportation and conveyances such as trains and airplane.  Outside that context, the CDC maintains its distinction between those who are and those who are not vaccinated, and recommends that unvaccinated people continue to wear a face mask at public events and gatherings around other people.

New York State and New York City

Masks are no longer mandatory in most settings

Effective as of February 10, 2022, Governor Hochul lifted the indoor mask-or-vaccine mandate for all private sector employers in New York State.  As a result, most employers now have discretion as to whether and when to require face coverings.  However, in addition to the CDC mandate for public transportation, masks are still required for certain high-density and particularly vulnerable settings, including all health care settings regulated by the Department of Health and other related state agencies, nursing homes, adult care facilities, correctional facilities, detention centers, homeless shelters, and domestic violence shelters, public transit and transportation hubs.

NYC customers need no longer prove vaccination status, but proof is still required for employees

New York City suspended the “Key to NYC” mandate as of March 7, 2022, that had required businesses to verify vaccination status as a condition of entry to indoor dining, fitness, and entertainment venues in the city.  However, through a new Mayoral Executive Order issued on March 4, 2022 and ongoing requirements by the New York City Department of Health and Mental Hygiene (DOHMH), all employees who work in-person in New York City – for every type of employer – must provide or have provided proof of vaccination against COVID-19 to their employers.  Employers must exclude from the workplace any worker who has not provided such proof, unless an exception due to a religious or medical accommodation applies, or a worker only enters the workplace for a quick and limited purpose.

In addition to the vaccination requirement, New York City employers currently must continue to:

  • Post an official DOHMH sign in a conspicuous location at the business; and
  • Keep a record of each worker’s proof of vaccination (including ensuring employees get their second dose) and any reasonable accommodations.

Employers who previously posted a notice per the Key to NYC requirements do not need to post the DOHMH attestation sign.

New Jersey and Connecticut – Reprieve from Face Coverings

For New Jersey employers, as of March 7, 2022, the statewide mask mandate has been lifted, as the Governor signed an executive order withdrawing the declaration of COVID-19 as a public health emergency.

For most employers in Connecticut, all business sector rules enacted to prevent the spread of COVID-19 were lifted as of May 19, 2021, with limited exceptions where face coverings were still required.  Those exceptions are still in effect in accordance with the latest order issued by the Connecticut Public Health Commissioner effective February 28, 2022, and face masks are therefore still required in schools, healthcare settings, and shelters.

Ongoing COVID Leave Obligations

Employers in New York State, New York City, and New Jersey must be aware of continuing COVID leave obligations, particularly concerning paid sick leaves, that remain in effect.  We have broken down the key pieces of COVID-related leave provisions effective in the tri-state area below.

For more information regarding NY and NJ on-going pandemic-related paid leave provisions see this blog article, and the series of COVID-19 leave articles on our blog.

Stay Informed

The news is swirling with reports of new COVID-19 variants developing, some of which may trigger future restrictions.  Therefore it is prudent for employers to continue to monitor for further updates.  We have provided links below for current standards issued at the federal, state and local levels impacting employers in the New York tri-state area.

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4

February, 2022

Wait, I Have to Pay Employees for Separate COVID Leave?

By Alexandra Lapes and Tracey I. Levy

Employers in New York State, New York City, and New Jersey must be aware of continuing COVID leave obligations, particularly concerning paid sick leave, that remain in effect despite the expiration of the federal Families First Coronavirus Response Act (FFCRA), which had provided a tax credit to offset the cost of paid time off in these circumstances.

New York State COVID-Related Leave is Ongoing

In addition to any other type of paid or unpaid time off that an employer may offer under its policies or to comply with legal requirements, New York State employers must continue to provide time off for COVID-related reasons, such as for employees who need to take leave because they are under a mandatory or precautionary order of quarantine or isolation due to COVID-19.  New York’s separate COVID-19 sick leave has no expiration date, and as employers are slowly discovering, that means these obligations are long-lasting.

As we noted previously in a series of COVID-19 leave articles on our blog, for many employers COVID-19 sick leave must be paid, depending on the size and net income of the employer.  By way of recap, employers’ obligations for COVID-19 sick leave are determined by the number of employees as of January 1, 2020, and provide for leave as follows:

  • If the employer has 10 or less employees and a net income less than $1 million – provide unpaid job-protected leave until the termination of the order of quarantine or isolation;
  • For all other employers with 99 or fewer employees – provide at least 5 days of paid job-protected leave and additional job-protected unpaid leave until the termination of the order of quarantine or isolation; and
  • If the employer has 100 or more employees – provide 14 days of paid job-protected leave during the order of quarantine or isolation.

New York State provides no reimbursement or subsidy to employers for the paid sick leave benefits required under the law.  Notably, however, employees are not eligible for paid COVID-19 sick leave if they are able to work remotely.

NY Employees Can Take Paid COVID Leave Three Times in the Same Year

Employers in New York State are required to provide COVID-19 sick leave benefits as described above for up to three periods of covered leave per employee. However, the second and third periods of leave 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 position for COVID-19.

NYS STD/PFL Benefits Are Also Available for COVID-Related Reasons

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.  In other words, employers that are not required to provide more than five days of paid COVID-19 sick leave should direct their employees to apply to the state’s STD/PFL programs for paid benefits for the duration of their quarantine or isolation period.

PFL also is available for an employee to care for a child for the duration of a quarantine or isolation period, and for up to 12 weeks of leave per year 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.

NY Requires Additional Paid Time Off for Vaccinations

Employers in New York State are required to grant employees up to four hours of paid time off for each shot of the COVID-19 vaccine.  Leave for vaccination must be paid at an employee’s regular rate of pay and is in addition to all other paid leaves provided by the employer.  This particular mandate of paid leave for vaccination only applies to vaccinations after its March 12, 2021 effective date, and the law is set to expire by the end of 2022.

New York City added still another paid leave obligation, and it requires employers to provide paid time off for employees’ children to be vaccinated.  Employees can use up to four hours of additional paid sick time, per child, per injection, for the vaccination itself and for care due to temporary side effects.

New Jersey Employers Have Ongoing COVID-Related Leave Requirements

New Jersey requires employers to provide paid leave under the state’s expanded New Jersey Earned Sick and Safe Leave Law (NJESSL), and this obligation is ongoing.  In addition, COVID-19 leave benefits made available to employees through New Jersey’s Family Leave Act (NJFLA) and Temporary Disability Benefits Law (NJTDBL) program remain in effect indefinitely.  While expanded in specific response to COVID-19, these amendments all turn more broadly on the declaration of a state of emergency by the governor due to an epidemic or public health emergency, and directives that an employee or the employee’s family member quarantine or isolate as a result of exposure to a communicable disease.

Notably, New Jersey expanded only the reasons why employees may qualify for NJESSL and the state’s leave benefit programs; it did not add any additional paid or unpaid leave entitlements.  Also, and perhaps for this reason, employees who are able to work remotely while subject to a quarantine order may still be eligible for these New Jersey COVID-related leave benefits, as the New Jersey law does not expressly preclude those employees from taking NJESSL for COVID-related reasons.

NJESSL Extends to Time Getting Vaccinated

The New Jersey Department of Labor has declared that employees are entitled to use NJESSL to get the COVID-19 vaccine, including travel time and recovery from side effects.  The Department created this memo for employees to provide to their employer regarding their additional rights to paid sick leave under NJESSL for COVID-19 vaccine leave, as vaccination is not listed as a reason for time off under the NJESSL law.

Takeaways

As the threat of COVID-19 persists for a third year and new variants emerge to infect more people and some people multiple times, employers in New York and New Jersey should note these ongoing pandemic-related paid leave provisions available to their employees.

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13

October, 2021

Shifting Rules Stymie Return to Office

By Tracey I. Levy

Perpetually changing requirements with regard to face coverings, vaccinations, and testing following close contact with someone who tested positive for COVID-19 present thorny challenges for employers looking to bring their workforces back into offices.  While many scuttled their post-Labor Day return-to-office plans due to the proliferation of the COVID-19 Delta variant, employers are once again revisiting and even moving forward with bringing employees back in physical proximity with one another, at least through hybrid work schedules.  For employers in New York, any such initiatives require revisiting (and continually monitoring) the most current federal, state and local guidance with regard to protecting workers against the spread of COVID-19.

OSHA’s Safe Work Guidance and the New York State HERO Act

Updated Safe Work Guidance issued by the Occupational Safety and Health Administration (OSHA) on August 13, 2021 draws distinctions in face covering, testing and quarantine requirements based on employees’ vaccination status.  The OSHA guidance references the latest guidelines from the Centers for Disease Control and Prevention (CDC), and applies to employees outside the healthcare industry, who are separately covered by the OSHA Emergency Temporary Standards for Healthcare.

Distinctions Based on Vaccination Status

The Safe Work Guidance currently advises that fully vaccinated people should:

  • wear a mask in public indoor settings in areas of substantial or high transmission, and may choose to wear a mask in areas with lesser levels of transmission;
  • get tested three to five days following a known exposure to someone with suspected or confirmed COVID-19; and
  • wear a mask in public indoor settings for 14 days after exposure to COVID-19 or until a negative test result.

In contrast, the guidance advises that those workers who are not fully vaccinated should:

  • wear a mask in public indoor settings at all times;
  • maintain social distancing whenever possible;
  • get tested immediately following a known exposure to someone with suspected or confirmed COVID-19 and,
  • if the first test following exposure is negative, get tested again in five to seven days after last exposure or immediately if symptoms develop during quarantine.

Federal vs. NYS Face Mask Standards

OSHA’s guidance with respect to face covering defines “areas of substantial or high transmission” not just by geography, but by industry as well.  Regardless of community transmission rates, OSHA recommends mask-wearing for all employees in manufacturing, meat, seafood and poultry processing facilities, high-volume retailers and grocers, and agriculture processors.

New York State also has once again updated its guidance with regard to face covering.  The general expectation under the standard Model Airborne Infectious Disease Exposure Prevention Plan (HERO Act Plan) issued by New York is that employees will wear appropriate face masks in accordance with applicable guidance from the State Department of Health or the CDC.  Presently, the New York State Department of Health has not issued any such requirements applicable to general office settings (outside select industries like healthcare), which therefore should leave employers to follow the CDC’s guidelines and the OSHA Safe Work Guidance.

However, a mid-September 2021 revision to the HERO Act Plan provides that if all individuals on premises in the workplace (not just the employees) are fully vaccinated, then appropriate face coverings are recommended, but not required.  Past guidance from the CDC with regard to masking had been predicated on whether everyone in the location was vaccinated, but that is not the most current CDC standard.  As New York State is currently designated by the CDC as a high transmission state, the new exception in the HERO Act Plan is arguably more lenient than the OSHA/CDC position on face masks for areas of substantial or high transmission.  This leaves New York employers in something of a quandary as to whether to excuse face masks when the individuals in their workplace are all fully vaccinated.

Encouraging Vaccinations

The OSHA guidance additionally encourages employers to make it easier for workers to get vaccinated by offering paid time off for the vaccine and any recovery from its effects, and it further suggests that employers consider mandating vaccination or regular COVID-19 testing for employees.  New York State employers do not have much optionality on this, as the state has already separately mandated that employers provide paid leave for employees to get vaccinated, and the state has further designated recovery from the effects of a vaccine to be a permitted use under the state’s general paid sick leave law.

Additional Precautions and Accommodating Disabilities

OSHA’s Safe Work Guidance retains the now relatively familiar recommendations with regard to social distancing, educating and training workers on safe work protocols, maintaining ventilation systems, and performing routine cleaning and disinfection.  All of those factors similarly comprise elements that employers need to have addressed in their HERO Act plans.

Finally, OSHA’s guidance reminds employers of their obligation to take steps to protect those who cannot be vaccinated or cannot use face coverings due to a disability.  While not expressly stated in the Safe Work Guidance, this obligation similarly extends to those who decline to be vaccinated based on sincerely held religious beliefs, and is consistent with the requirements of New York State law.

If Someone in the Office Tests Positive for COVID-19

Once employees have actually returned to the office, current guidance from the CDC on Quarantine and Isolation provides that someone who thinks or knows they have COVID-19 (that is not a severe case and who is not immunocompromised) should self-quarantine and get tested.  That individual can be around others and return to work after:

  • 10 days from when symptoms first appeared and
  • 24 hours with no fever without the use of fever-reducing medications and
  • Improvement of other symptoms of COVID-19 (i.e.: loss of taste and smell, which can linger for weeks).

If the individual who tested positive had no symptoms, then the individual can be around others and return to work after 10 days from the initial positive COVID-19 test, unless symptoms later develop.  Someone who was severely ill with COVID-19 or is immunocompromised may need up to 20 days to recover from the date symptoms first appeared and, if immunocompromised, the individual should consult with their healthcare provider about possible additional testing or precautions before returning to work.

New York State currently defers to the CDC guidance with regard to these quarantine and isolation periods.  Employers are reminded that, while the program offering federal tax credits for providing paid leave when an employee is unable to work due to quarantine for COVID-19 has now expired, New York State has a separate COVID-19 paid leave law.  As we discussed in a series of COVID-19 leave articles on our blog earlier this year, the state law may require paying employees full salary for all or a portion (depending on the size of the employer) of their quarantine or isolation period if an employee is unable to work remotely, and this payment obligation is separate from other paid leave entitlements the employee may have under the paid sick leave law or the employer’s policies.

Keep Checking for New Legal Standards

These remain challenging times in many respects, and the legal landscape continues to be turbulent ground for employers as governing bodies at the federal, state and local levels each endeavor to balance competing considerations.  Reopening plans developed over the summer or earlier are likely no longer compliant with current requirements, and employers should look to the dedicated COVID-19 government websites and get legal advice to ensure they are meeting their obligations.

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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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