17

March, 2021

ARPA Offers Financial Relief for Employers Facing NYS’s Latest COVID-19 Vaccine/Sick Leave Mandates

By Tracey I. Levy

New York State employers face yet another payroll cost challenge as the state has now mandated, as of March 12, 2021, that employees be granted up to four hours of paid leave (separate from all existing paid time off benefits) for purposes of receiving the COVID-19 vaccine.  This is in addition to the state’s mandates for employers to provide up to three two-week intervals of COVID-19 sick leave, at least a portion of which must be paid by all but the smallest employers, as we have discussed in prior blog articles.

Fortunately, among the financial benefits included in the new American Rescue Plan Act (“ARPA”) are several provisions that are particularly helpful to New York State employers struggling to comply with the state’s unfunded COVID-19-related paid leave mandates.  While not mandatory, ARPA authorizes employers to claim a dollar-for-dollar tax credit for qualifying wages paid to employees for leave taken under the Families First Coronavirus Response Act (“FFCRA”).  ARPA expands the list of FFCRA-qualifying leaves, and it extends the FFCRA leave eligibility period.

Expansion of FFCRA Leave

The FFCRA was originally designed to provide employees with up to 10 days of paid sick leave for six qualifying reasons: (i) inability to work due to a government-issued quarantine or isolation order related to COVID-19; (ii) inability to work due to quarantine or isolation on advice of a health care provider related to COVID-19; (iii) if the employee was experiencing COVID-19 symptoms and seeking a medical diagnosis; (iv) if an employee was caring for someone subject to quarantine for COVID-19; (v) to care for a child whose school or childcare center was closed for COVID-related reasons; and (vi) if an employee was experiencing substantially similar conditions as specified by the Secretary of Health and Human Services.

ARPA expands that list to permit FFCRA paid sick leave for three additional reasons:

  • to take time off to get a vaccine;
  • to recover from illness or injury related to the vaccine; or
  • while awaiting the results of a COVID-19 test or diagnosis because the employer requested that the employee be tested or because the employee was exposed to someone who had tested positive for COVID-19.

The FFCRA originally offered an additional benefit of 12 weeks of Emergency FMLA leave (under the Emergency Family Medical Leave Expansion Act), which comprised two weeks of unpaid, and 10 weeks of paid, leave at two-thirds of the employee’s salary, up to $200 per day.  EFMLA leave was available, however, solely for reason “v” as listed above – to care for a child whose school or childcare center was closed for COVID-related reasons.  ARPA now expands eligibility for EFMLA leave to all nine of the qualifying reasons specified above.   ARPA also increases the paid component so that an employee can receive partial salary for all 12 weeks of the leave period.

Extension of FFCRA Leave

In addition to expanding the qualifying reasons for FFCRA leave, ARPA extends the period in which an employee can qualify for the leave through September 30, 2021.  ARPA also resets the clock on the 10-day cap on eligible COVID-related sick leave as of April 1, 2021, so that employees who have already taken FFCRA qualifying paid sick leave since the start of the pandemic can take up to 10 additional days of leave for a qualifying reason subsequent to April 1, 2021.

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11

December, 2020

Structuring a Paid Sick Leave Policy for New York, New Jersey and Connecticut

By Tracey I. Levy and Alexandra Lapes

By this January 2021, paid sick leave laws will impact all employers throughout the tri-state area of Connecticut, New Jersey, and New York.  The laws have some commonalities, but there are notable differences across jurisdictions that make it challenging for employers to draft a uniform policy.

Consensus at the Macro Level:

The sick leave laws all permit eligible employees of covered employers to accrue up to 40 hours of sick leave per calendar year. This leave can, at a minimum, be used for the employee’s or family member’s illness, injury, or preventive medical care or treatment, and if an employee or family member is a victim of domestic violence/sexual violence (including the need to obtain related safety measures).  Employees minimally must provide notice as soon as practicable prior to taking a sick day. For absences of more than three consecutive days, employers may request documentation to substantiate the need for leave but must keep confidential the information they receive.  In addition, all prohibit retaliation against employees who exercise their sick/safe leave rights.

Divergence in Key Details:

Connecticut’s sick leave law is limited to non-exempt service works (as defined by the US Bureau of Labor Statistics), excluding manufacturing and not-for-profits.  The New Jersey, New York City, and New York State laws apply to all private employers, although in New York State and New York City, the leave need only be paid if the employer has 5 or more employees, unless an employer made more than $1 million in the previous tax year, and employers with 100 or more employees must provide a total of 7 days (56 hours) of paid sick/safe leave per calendar year.

The following chart summarizes key jurisdictional differences that relate to employment policies.  Employers should additionally be mindful that Connecticut, New York City and New Jersey all require providing employees with notice of their sick leave rights, and New York City and State impose additional recordkeeping requirements on employers with regard to paid sick leave accruals.

Paid Sick Leave Provisions

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30

November, 2020

Three Key Employment Items to Address Before the New Year

By Tracey I. Levy and Alexandra Lapes

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

1. Training

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

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

2. Policies

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

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

3. Notice Requirements

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

  • Payroll and Tracking
  • New York State employers must:
    • Maintain paid sick leave records for no less than six years; and
    • Be prepared to timely provide employees with a summary of the amount of sick leave accrued and used upon request.
  • New York City employers must additionally provide:
    • Accrual, usage, and paid sick leave balance information to employees each pay period;
    • Written notice by January 1, 2021 (see notice link here) of employees’ paid sick leave rights at hire and to current employees of organizations with 100 or more employees, and conspicuously post that notice; and
    • Retain compliance records for at least three years.
  • Westchester County employers must additionally provide:
    • A Notice of Employee Rights and a copy of the County’s Safe Leave Law to all new hires; and
    • Display the required Safe Time poster both in English and Spanish, in a conspicuous location.
  • New Jersey employers with 10 or more employees must ensure they have:
    • Updated their payroll statements to ensure that they each specify: the employee’s gross and net wages; the employee’s rate of pay; and, for hourly employees, the number of hours worked during the pay period.
  • Job Protection
  • New Jersey employers must have conspicuously posted (as of April 1, 2020), two notices regarding employee misclassification.
  • Connecticut employers must provide information on the illegality of sexual harassment and remedies available to new hires within three months of their start date and send this information to each employee.
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21

May, 2020

Working Our Way to Normalcy: A Tri-State Guide to Reopening Your Business

By Tracey Levy and Alexandra Lapes

With the goal of getting employees back to work safely while ensuring business continuity, and in compliance with local, state, and federal laws, employers should consider the following key measures to take as New York, New Jersey, and Connecticut permit more businesses to reopen during the COVID-19 pandemic.

1 – Closely follow your local reopening status and what level your business falls into within the phases of reopening

In New York State, Governor Cuomo issued the New York Forward plan, a guide to reopening businesses in New York, which outlines that businesses can reopen in phases based on each region meeting specific health metrics.  As of May 20, 2020, seven regions (Capital Region, Central New York, Finger Lakes, Mohawk Valley, North Country, Southern Tier, and Western New York) are allowed to reopen and begin phase one of reopening.  See here for a breakdown of progress on the metrics by region.

Geographic region is only the first threshold in New York, as the state also is phasing reopening by industry.  The state provides a reopen “lookup tool,” where businesses in specific industries can determine whether they are eligible to reopen.   In order to operate, employers must comply with all safety guidelines for their particular industry.  All New York employers (including essential businesses) must also, as a condition of being open:

    1. affirm that they have read and understand their obligations to operate in compliance with New York State guidance – and submit that affirmation of compliance online; and
    2. develop a business safety plan, for which the state has issued a business safety plan template. While the business safety plan does not need to be submitted to the state, it must be posted in a conspicuous location in the workplace and made available to the state Department of Health or local health or safety authorities in the event of an inspection.

The reopening lookup tool contains specific guidance for certain industries, and covered employers must also affirm compliance with those industry-specific standards.

Employers should consult the NY Forward website at www.forward.ny.gov  and applicable Executive Orders at www.governor.ny.gov/executiveorders  periodically or whenever notified of the availability of new guidance.  Employers can also visit Empire State Development’s website for frequently asked questions on how the New York Forward reopening plan impacts their business.

For New Jersey employers, on May 18, 2020, Governor Murphy announced a six-principle plan to restart New Jersey’s economy.  While New Jersey’s stay-at-home order is still in effect until further notice, the Governor announced New Jersey is in phase one of the six-principle plan but stated that a coronavirus vaccine must be widely available before New Jersey fully reopens to the “new normal.” New Jersey created a reference tool for local establishments that are open and cooperating with state guidelines, see here.

Connecticut is also taking a gradual approach, which began May 20, 2020, for those businesses that see a sustained 14-day decline in hospitalizations, have the adequate testing capacity, have a contact tracing system in place, and have procured sufficient personal protective equipment (“PPE”). Businesses eligible to reopen as of May 20 are:

  • Restaurants (outdoor only, no bar areas);
  • Offices (continue WFH where possible);
  • Museums, zoos (outdoor only);
  • Remaining retail;
  • Outdoor recreation;
  • Personal services (hair); and
  • University research.

They join already open businesses such as manufacturing, construction, real estate, utilities, essential retail, childcare, and hospitals.  Industry-specific guidelines for reopening are available here.  All businesses must self-certify online prior to opening that they are complying with safety measures.  Connecticut’s “Stay Safe, Stay Home” and all other related safety measures otherwise remain in effect, with all nonessential workers directed to work from home, and social and recreational gatherings of more than five people prohibited. To stay up-to-date on Connecticut’s guidance to reopen see here, and for answers to frequently asked questions, see here.

Additional resources are available for safety information, and guidelines at:

2 – Prepare your workplace and take necessary protective measures

All businesses should take proactive measures to ease employees’ fears of returning to work and communicate new policies, procedures, and practices specific to their workplace.  While every workplace will differ, consider the following proactive measures:

  • Prepare a workplace safety plan in compliance with federal, state, and local law. A workplace safety plan should address how the business plans to:
    • physically distance employees to ensure six feet between personnel, including limiting in-person gatherings, posting social distance markers using tape in common areas, limiting in-person meetings as much as possible and holding essential meetings in well-ventilated and well-spaced locations, limiting contact with customers, and considering shift changes or alternating lunch breaks if appropriate to the industry or business; and
    • implement protective measures for employees, including health screening before employees can return to work and subsequent daily health assessments, an exposure-response plan, maintaining adequate supply of face coverings for employees, complying with CDC hygiene and sanitation requirements with a log of who will be cleaning what and the date/time/scope of cleaning, providing hand sanitizers, soap, and paper towels to employees and those entering the workplace, and having a plan for cleaning, disinfecting, and contact tracing in the event an employee tests positive for COVID-19.
  • Communicate the safety plan to all employees. Through signage, advance communications, and ongoing training, ensure all employees and visitors in the workplace are aware of the organization’s social distance and safety protocols.

3 – Determine whether employees are eligible for modified work arrangements or accommodations, FFCRA leave, or other benefits and apply and redefine your policies fairly

Employers should review their workplace policies and update them as appropriate to address COVID-19 related personnel issues such as leave entitlements, teleworking or flexible work arrangements, the continuation of benefits, and accommodations for vulnerable employees.  In addition to the Families First Coronavirus Response Act leave, which remains in effect for covered employers until December 31, 2020, employees in New York, New Jersey, and Connecticut may also be entitled to paid sick leave for COVID-19 related reasons.  See our recent issue of Takeaways and prior HR Strategy blog postings for more information on state-specific COVID-19 leave entitlements.

When restoring employees to work, employers should develop a methodology that applies consistent and nondiscriminatory criteria to determine the rehire order.  Be sure to notify state unemployment agencies of recalled workers, whether rehired or not, as employees forfeit their eligibility for continued unemployment benefits if they decline an offer of reinstatement because they are making more from unemployment.

Some employees who fall into a high-risk category for COVID-19 may request to remain on leave or continue working remotely as a reasonable accommodation.  Employers need to give such requests due consideration, as with any other accommodation request.

4 – Check for additional guidance and shifting requirements

These remain primarily unprecedented times, and the legal landscape for employers is shifting continuously.  Checking the available government links periodically is prudent, and employers should consider getting legal advice before taking employment actions.

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