Category: Sick and Safe Leave

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

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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

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25

November, 2022

Sometimes We All Need a Little Help – and a Cooperative Dialogue with our Employer to Get Us There

I have been thinking a lot about managing physical and mental impairments recently. Not the permanent ones, but the ones that may come on suddenly and impede what we consider to be our “normal” functioning ability. The subject is on my mind for two reasons. First, because in the past few years we have heard of so many more instances of workers facing mental health or substance abuse issues, or newly diagnosed as adults with conditions like ADHD for which they are being prescribed medications or other treatment. Second, because I have been facing down my own physical and mental health issue – a chronic medical condition that at its most severe can produce hours-long, paralyzing vertigo attacks and hearing loss.

In my case, prior to the pandemic I thought I had my condition largely under control through a combination of diet and medication. Then I took the weight of the world on my shoulders as we heard the progressively more bleak stories of the impact of COVID-19, my vertigo attacks returned, and they became more frequent, less predictable and more debilitating. I lost 50 percent of my hearing in one ear, and the status quo clearly was not sustainable. I took the rare step of opting for surgery five weeks ago, a minor surgery with great odds of stopping the vertigo attacks (and thereby stemming the hearing loss).

I had anticipated a weekend for my recovery from surgery, and allowed a cushion of two additional days when I was scheduled to be out for religious observance. I had a roster of ongoing matters and deliverables, but no worries about working through all of them immediately following the holiday.  I didn’t even set an out-of-office message, figuring I could return any necessary calls or emails as soon as the anesthesia wore off.

The surgery went as planned. The recovery did not.  My weekend was spent sedated in the hospital, trying to make the world stop spinning. I rested at home over the holiday and then tried to resume my work in short intervals, from my recovery bed. My colleagues covered for me on some matters, and some I pushed off or worked through at less than my regular pace. I built in downtime between my meetings so I could just rest, give my eyes a break, and regain my strength for my next meeting or project. I had a running list of all my deliverables and gradually made my way through completing them.

By week four, the list had been reduced to just a few ongoing matters. But while I had seen gradual, albeit painfully slow, improvement in my first three weeks, I began to backslide. I was stretching out six hours of productive work over a 10 to 12 hour daily window, and by 8 pm, a milder version of the old vertigo was returning, leaving me helpless to do anything for 45 minute intervals and so exhausted thereafter that I had to call it quits for the night. By the weekend, the vertigo was back with a major roar, sudden, fierce and completely debilitating attacks that had me violently ill and confined to my bed. Clearly something had to change.

This past Monday, I confronted my own situation. I called out the areas in which I was not delivering at my expected level – the blog articles I had not even brought myself to start writing, the training materials I had only half-developed, the investigation I’d had to decline taking on for a new client and the one that was in danger of stalling – and I took some sage advice from a respected teacher. I put myself on medical leave (you can do that when you own the business). I emailed clients to request to push out some deadlines, I set out-of-office messages on my phone and email, I went for a walk outside, and then I went to bed. I saw my doctor the next day, who has put me on a new medication that is so far keeping the vertigo away. I am continuing to walk outside each day, I am accepting the care of my family and friends, and until now I had almost entirely retired my laptop and work emails.

And it is working. I feel slowed by the medication, but freed of the oppressive weight of the vertigo I was perpetually fighting off. I am not entirely steady on my feet, but my walks on flat terrain help to clear my head. And ideas and inspiration to write, the lifeblood of my professional existence, are flowing once again.

Perhaps this is too much disclosure of personal information. Perhaps I have spent just a few too many hours listening to Moth hour story podcasts on National Public Radio this past month when the vertigo left me unable to absorb any form of visual engagement. But I share all this because, while I hope my particular ordeal is unique, I am afraid that the themes of wanting to continue to deliver at work, not wanting to admit the scope of the problem, not wanting to accept too much help, and not giving in to “defeat” are more universal and more prevalent in our workplaces than we may recognize.

For those of you in circumstances like mine, I see you and I empathize. But I also want to educate because going it alone is not your only option. If you are suffering from a serious medical condition, it may qualify as a “disability” under federal law and even more likely so under the law in states like New York, Connecticut, New Jersey and others. What that means is that you are entitled to help to enable you to perform the essential functions of your job. In New York City they call it a “cooperative dialogue” process and I like the friendliness of that phrasing.

You will likely be asked for documentation from your health care provider, but most employers I work with genuinely want to help and support you. Certainly the work needs to get done, but particularly if yours is just a short-term debilitating condition, and particularly if you are part of a larger organization, it may be possible to temporarily shift certain projects or responsibilities to colleagues who can help cover. Sometimes deadlines are more aspirational than essential, and they can be shifted for compelling circumstances. And sometimes the best thing you can do for yourself and everyone around you is to just step away for a little bit, take a leave of absence and allow your body and mind the time and space to heal.

Marvel characters aside, none of us are superheroes. All of us, at some point, face circumstances usually not of our choosing that interfere with the career trajectory, performance standards and aspirations that we set for ourselves. If you are like me, the hardest step in that situation is recognizing our own limitations – to ourselves, and to those we work with. But health issues do not typically resolve themselves just by pretending they do not exist, and the caliber of work we can deliver under trying circumstances often does not meet our own lofty standards.  Make the call, and if you need it, ask for the help.

By Tracey I. Levy

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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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