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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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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