paid sick leave Archives - Levy Employment Law

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

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

8

March, 2020

Managing Workplace Epidemics: Coronavirus Concerns in Westchester County and New York City

By Tracey I. Levy, Esq. and Alexandra Lapes, Esq.

As the global Coronavirus situation is expanding rapidly and hitting close to home, Westchester County and New York City employers should review their communicable disease plans and implement preventative measures to limit the potential effect of illness in the workplace.

Key strategies for employers in preparing and responding to a Coronavirus outbreak are:

Implement a communicable disease policy

If your organization has not done so already, HR professionals should devise a communicable disease policy and prevention plan in case the outbreak directly impacts their workplace. An effective policy should identify and communicate the organization’s objectives and address workplace safety precautions, such as employee travel restrictions, mandatory reporting of exposure, reporting to public health authorities, employees quarantined or in isolation, and facility shutdowns.

Employers should also establish policies to encourage employees who feel sick to stay home, post reminders on proper handwashing and coughing/sneezing practices and make hand sanitizers and tissues available throughout the workplace. Remind employees of relevant policies that may provide them with paid time off in these circumstances, including time off under Westchester County’s Earned Sick Leave Law and New York City’s Earned Sick and Safe Time Act, as discussed below.

Make sure not to discriminate

Because of the heightened risk that COVID19 presents for individuals with underlying medical conditions, in the course of implementing a communicable disease policy or administering a response to the current Coronavirus threat employers may learn, inadvertently or otherwise, of latent disabling conditions impacting some of their employees. Employers should treat all such information as confidential, and take care not to engage in any actions that could be perceived as discriminating based on a disability.

Employers also should avoid, and take measures to prevent, any harassment or discriminatory actions that target individuals who may be associated with an ethnic or religious group, or who have relatives from a particular country, that has been more substantially impacted by the spread of the virus. Employment policies should be consistent with public health recommendations, as well as local, state, and federal workplace laws.

Consider alternative work arrangements

Encourage sick employees to stay home and focus on their health, and recovering employees or those who have been asked to self-quarantine to do so. Consider flexible work schedules to limit the number of workers in the same work area or worksite, reduce exposure during commutes on mass transit at peak times, and reduce face-face contact. Use virtual work environments to replace in-person meetings with video or telephone conferences. Leverage remote access solutions where logistically possible to enable healthy employees to stay productive in the event the workplace or specific individuals are subject to a quarantine.

Advise employees before traveling

Employers should continuously check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which an employee may need to travel. Advise employees to check themselves for symptoms before travelling and notify their supervisor if they need to stay home. If an employee becomes sick while travelling or on temporary assignment, ensure the employee understands to notify a supervisor and promptly call a local health care provider. New Yorkers can call the State hotline at 1-888-364-3065, and for Westchester County COVID-19 information call 211.

Manage employee benefits and compensation

Non-exempt employees must be paid overtime compensation if they work in excess of 40 hours in a workweek while covering for other employees absent due to the Coronavirus. Time spent working from home or through other remote work arrangements also is compensable.

Most employees in Westchester County and New York City will be eligible for up to five days of paid sick leave, under local paid sick leave laws, if they personally contract the Coronavirus, their workplace is closed due to a public health emergency, they are caring for a family member who has contracted the virus, or they are caring for a child whose school or childcare provider is closed due to a public health emergency.

Employers should consider whether, independent of any available paid leave time, they want to continue to pay employees for all or some portion of the time that they are unable to or are precluded from working because of the Coronavirus. While some organizations have suggested leave donation plans as a means of encouraging sick employees to stay home if they have exhausted their paid time-off benefits, such programs need to be carefully considered. If not appropriately structured, the donated time can have tax consequences for the donor and the recipient. Further, the benefits of such a program for small and mid-size employers may prove to be few or fleeting in the context of a pandemic, as donated time may benefit the first to fall ill, but then leave little in the bank for the donors and others who later contract the disease.

New York State Paid Family Leave is available for employees who may need to care for a close family member with a serious health condition. However, the state defines a “serious health condition” as an “illness, injury, impairment, physical or mental condition requiring inpatient care in a hospital, hospice, or inpatient/outpatient residential health facility;” or “continuing treatment or supervision by a health care provider.” Under this definition, care of a family member who is hospitalized due to Coronavirus or who has complications from the virus due to an underlying medical condition, such as asthma or respiratory disease, likely would be covered. Care of a family member who experiences milder Coronavirus symptoms, more akin to the flu, likely would not be covered.

Stay informed on changes to state and local law

Local paid sick leave laws in Westchester County and New York City present some additional challenges for employers. The laws permit employers to require employees to provide documentation from a health care provider after three consecutive sick days, but employers may not require the health care provider to specify the medical reason for sick leave. Employers need to balance this provision against the need to be informed, for public safety reasons, if an employee has been diagnosed with the Coronavirus or is being quarantined so as to take appropriate precautions to prevent the further spread of the virus throughout the workplace. Also, the National Centers for Disease Control and Prevention advises employers not to require medical certification at this time to validate employees who are sick with acute respiratory illness, as they anticipate healthcare providers and medical facilities may be extremely busy and not able to provide such documentation.

Notably, while it has been widely reported that New York State Governor Cuomo plans to amend New York State’s paid sick leave bill to deal with the Coronavirus, there currently is no state-wide paid sick leave law in New York. Paid sick leave at the state level is simply proposed legislation that needs to make its way through the legislative process and, even if enacted, as proposed the law would not take effect until April 2021.

Employee morale and business continuity

Lastly, employers should endeavor to communicate information to employees about their organization’s communicable disease plan, efforts to reduce the risks of contagion in their workplace, and policies and benefits for those who are directly impacted by the Coronavirus.

22

December, 2014

3 Hyper-Local Laws Employers Can’t Afford to Ignore

Hyper-local laws are the latest overarching trend in employment law, as municipal governments increasingly adopt laws applicable to private employers within their localities. The reach of these laws includes new protected classifications, new notice obligations, and even paid leave mandates – often exceeding employer obligations under federal and state laws. Woe to the unwary employer who is inattentive to these local legal requirements!

Currently the three hottest areas in local employment legislation are:

Paid sick leave,
“Ban-the-box” laws and
Pregnancy accommodation.

Are your workplace management policies in compliance?
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