2020 Year-End Employment Update (REVISED)
As 2020 draws to a close, we have put together the highlights of amended and newly enacted laws that employers should keep in mind as we move into the new year. These highlights provide a survey of the new laws. For details or questions relating to applicability or implementation, please contact Aliza Herzberg or Lori Barnea:
FEDERAL LAWS AND GUIDANCE
Families First Coronavirus Response Act (FFCRA)
In March of 2020, the federal government passed a COVID-19 paid leave law, the FFCRA, which required certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The FFCRA has expired as of December 31, 2020, however employers who wish to voluntarily offer the benefits of the FFCRA may continue to do so and will receive a tax credit for any paid time off given under the FFCRA through March 31, 2021.
EEOC Guidance on COVID-19 Vaccinations
On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding the rules associated with employer mandated workforce vaccinations. The guidance addresses the intersection of various laws including the Americans with Disabilities Act (ADA), the Genetic Information Non-Discrimination Act (GINA) and religious accommodations under Title VII of the Civil Rights Act of 1964. While the guidance indicates that employers may mandate vaccinations in the workplace, it also addresses the various pitfalls in such mandates including illegal disclosures of disability related inquiries, the handling of sensitive medical information and the requirement that all vaccinations should be handled through a third party health care provider.
DOL’s Guidance on Return-To-Work, Remote Work, And Wage and Hour Issues
The U.S. Department of Labor issued new guidance materials to employers in July of 2020 regarding return-to-work, remote work, and wage and hour issues. The agency recognized that the intersection between the FFCRA, the Family and Medical Leave Act (FMLA), and the Fair Labor Standards Act (FLSA) presented challenges for compliance purposes, and issued guidance to assist employers in the process. For the full text of the guidance, click here and here.
DOL Final Overtime Exemption Rule
The final overtime exemption rule issued by the U.S. Department of Labor (DOL) became effective January 1, 2020 and raised the annual salary threshold for the white-collar overtime exemptions under the Fair Labor Standards Act (FLSA) to $35,568 per year or $684 per week, up from the prior threshold of $23,660 per year or $455 per week. (Note that the exemption threshold is higher in certain states, including New York.). Additionally, the U.S. DOL raised the highly compensated employee exemption from $100,000 to $107,432. Going into 2021, employers should continue to be mindful of these thresholds when setting employees’ salaries and determining whether employees are exempt or non-exempt.
NEW YORK STATE LAWS AND GUIDELINES
New York Forward Reopening Guidelines
In May of 2020, New York State began to issue re-opening guidelines detailing when and how essential and non-essential businesses could properly reopen. The state also issued guidance for commercial and recreational activities. These rules and regulations continue to be issued and updated as regions within the state move from yellow to orange to red.
Some of the regulations for non-essential businesses to remain open include: mandatory social distancing, increased hygiene practices in the workplace, employee health screening questionnaires and mandated mask-wearing. Click here for the full New York Forward website.
New York State COVID-19 Leave Law
In March of 2020, New York State enacted a coronavirus-focused paid sick leave law which provides 5-10 days of paid, job-protected leave (based on the employer’s size), for employees who are subject to an order of quarantine and guarantees workers access to New York Paid Family Leave and short-term disability benefits for the period of quarantine. This law does not have an expiration date and is set to remain in effect for the duration of the pandemic. The state created a one page guide which should be posted in the workplace. Click here to see the guide.
New York State Paid Sick Leave Law
New York State also rolled out a long considered permanent non-COVID-19 related sick leave law effective September 30, 2020. Under the new law, employees were eligible to begin accruing sick leave on September 30, 2020, and may start using their sick leave as of January 1, 2021. Employers with fewer than four (4) employees and net income less than $1 million will be required to provide their employees with up to forty (40) hours of unpaid sick leave per year. Employers with fewer than four (4) employees and net income of $1 million or more, and employers with 5-99 employees will be required to provide their employees with up to forty (40) hours of paid sick leave per year. Employers with 100 or more employees will be required to provide their employees with up to fifty-six (56) hours of paid sick leave per year.
New York City Earned Sick and Safe Time Act
New York City amended its existing sick leave law to conform to the provisions of the New York State Paid Sick Leave Law. As of January 1, 2021, employers with fewer than four (4) employees and net income of $1 million will be required to provide their employees with up to forty (40) hours of paid sick leave per year. Employers with 100 or more employees will be required to provide their employees with up to fifty-six (56) hours of paid sick leave per year. All other employers will continue to be required to provide their employees with up to forty (40) hours of paid sick leave per year. Click here for more information on the amended law.
As part of this amendment, employers in New York City must include the following information on a pay statement or “other form of written documentation” for each pay period: (i) the amount of sick and safe leave accrued and used during the pay period; and (ii) the employee’s total balance of accrued safe and sick leave. If you have not made this change, please do so immediately.
New York Paid Family Leave
Starting on January 1, 2021, the amount of paid family leave available to eligible employees under New York State law will increase from ten (10) weeks to twelve (12) weeks of leave. Wage replacement benefits under the law will increase from 60% of the employee’s average weekly wage (capped at $840.70) to 67% of the average weekly wage (capped at $971.61).
New York Minimum Wage Law
All New York City employers are currently required to pay their employees a minimum wage of $15.00 per hour. As of December 31, 2020, the hourly minimum wage will increase to $14.00 in Nassau, Suffolk and Westchester Counties, and to $12.50 throughout the remainder of New York State.
New York City Drug Testing Law
Effective May 10, 2020, the City of New York Administrative Code was amended to prohibit employers from requiring applicants to submit to drug testing for marijuana or THC as a condition of employment, subject to certain exceptions. Applicants for certain safety and security sensitive jobs and jobs that requires the supervision or care of patients may still be tested, as can applicants for positions where testing is required by the U.S. Department of Transportation, federal contracts or grants, federal or state statutes, or collective bargaining agreements.
New York State Anti-Harassment and Anti-Discrimination laws
Beginning on August 12, 2020 the statute of limitations for filing a sexual harassment complaint in New York was lengthened from one year to three years.
New York City Expands Fair Chance Act
On December 17, 2020, the New York City Council passed a bill that, once signed into law by Mayor DeBlasio, will expand the Fair Chance Act law and will impose further restrictions on an employer’s ability to take an adverse action against a job applicant or current employee based on pending criminal charges, arrests or convictions. Before a conditional offer of employment may be withdrawn or a current employee adversely affected on the basis of a pending criminal charge, arrest or accusation, an employer must individually assess the relevance of the alleged criminal conduct using seven factors similar to, but not the same as, the eight factors required to be applied under New York State Corrections Law. In addition, the FCA review process currently only applies to applicants for employment but the expanded law requires employers to follow the same FCA notice and review process to current employees with a criminal conviction during employment.
NEW JERSEY LAWS
New Jersey Earned Sick Leave Law
New Jersey’s Sick Leave law was expanded to allow employees to use their existing sick leave for COVID-19 related reasons.
New Jersey Minimum Wage Law
In New Jersey, as of January 1, 2021, most employers must pay their employees a minimum wage of $12.00 per hour. Seasonal and small employers (fewer than six (6) employees) must pay their employees a minimum wage of $11.10 per hour while New Jersey agricultural employers must pay their employees a minimum wage of $10.44 per hour.
New Jersey Paid Family Leave Act
This law was amended to include pandemics and other similar emergencies as reasons to take leave under the Act.
New Jersey Paid Family Leave Insurance
Beginning July 1, 2020, under the New Jersey Paid Family Leave Insurance program, employees became eligible to receive payments for up to 12 weeks of leave, an increase that has effectively doubled the length of employees’ paid leave. In addition, the weekly benefit rate increased to 85% of the employee’s average weekly wage, up to a cap of $859.
CONNECTICUT LAW
Connecticut Paid Family Leave Law
In 2019, Connecticut enacted the Paid Family and Medical Leave Act (PFMLA), which outlines a system that will provide eligible Connecticut employees to between 12 and 14 weeks of paid family leave. While payment of benefits under the law do not begin until January 2022, employers must begin taking deductions from the pay of Connecticut employees to fund the program as of January 1, 2021.
Connecticut Anti- Harassment Training
Connecticut’s harassment training law, SB-3, requires employers with three or more employees to provide sexual harassment training to all employees, including supervisors and non-supervisors. Employers with fewer than three employees must provide the training to supervisors only. All training must be provided by January 1, 2021 or within six months of an employee beginning employment. The original deadline of October 1, 2020 was extended due to the COVID-19 pandemic.
If you have any questions or require assistance with any of the above, please contact Aliza Herzberg at aliza@herzberglawgroup.com or Lori Barnea at lori@herzberglawgroup.com.
This publication is issued by Herzberg Law Group for informational purposes only and does not constitute legal advice or establish an attorney-client relationship. In some jurisdictions, this publication may be considered attorney advertising.
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Aliza Herzberg was named to the New York Metro Top Women Super Lawyers list and Lori Barnea was named to the New York Metro Top Women Super Lawyers Rising Stars list published in the New York Times supplement on March 26, 2018. Only 5% of New York State Attorneys are selected as Super Lawyers and only 2.5% of New York Attorneys under the age of 40 are selected as Rising Stars.
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As we begin 2018, Herzberg Law Group reflects back on 2017 and is proud that our lawyers have once again gotten high marks from our peers, and have been selected for inclusion in Super Lawyers and Best Lawyers in America.
Lori Barnea has been named for inclusion to the New York Super Lawyers Rising Stars every year since 2015.
Aliza Herzberg has been named for inclusion in Super Lawyers every year since 2010 and is also one of the Top Women Attorneys, New York Metro Area, Super Lawyers. Aliza has also been named for inclusion in Best Lawyers in America© 2018. Aliza has been selected for Best Lawyers in America since 2016. Best Lawyers® is based on an exhaustive peer-review survey on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor.
Read MoreJanuary 2018 Legal Update
New York State Minimum Wage Increases
Effective December 31, 2017, New York State’s minimum wage has increased as follows:
- Employers outside of New York City, Nassau, Suffolk, and Westchester counties: $10.40 per hour
- Employers in Nassau, Suffolk, and Westchester counties: $11.00 per hour
- Employers in New York City with 10 or fewer employees: $12.00 per hour
- Employers in New York City with 11 or more employees: $13.00 per hour
Effective December 31, 2017, New York fast food employees’ minimum wages have increased as follows:
- Fast food employees outside of New York City: $11.75 per hour
- Fast food employees in New York City: $13.50 per hour
New York State Increases Salary Threshold to Qualify for Exempt Employee Status
Effective December 31, 2017, the salary threshold to qualify for the administrative and executive exemptions from overtime pay have increased as follows:
- Employers outside of New York City, Nassau, Suffolk, and Westchester counties: $780.00 per week
- Employers in Nassau, Suffolk, and Westchester counties: $825.00 per week
- Employers in New York City with 10 or fewer employees: $900.00 per week
- Employers in New York City with 11 or more employees: $975.00 per week
New York does not set a salary threshold to qualify for the professional exemption, so employees must meet the current federal salary threshold of $455.00 per week to qualify for the professional exemption. For each of the executive, administrative and professional exemptions, employees must also meet the applicable duties requirements in order to be considered exempt from overtime pay requirements.
Employers whose exempt executive and administrative employees are currently paid less than the new salary threshold must increase those salaries. Alternatively, employers can reclassify employees earning less than the new salary threshold to non-exempt.
New York City Expands and Renames Paid Sick Leave Law
Effective May 5, 2018, the New York City Earned Sick Time Act will expand the reasons for which paid sick leave can be used to include “when the employee or a family member has been the victim of a family offense matter, sexual offense, stalking, or human trafficking.” The law’s name will change to the New York City Earned Safe and Sick Time Act.
The amended law will allow victims of domestic violence, stalking, human trafficking or sexual assault to take sick leave for a variety of reasons in order to get protection, seek help and redress, and to get medical or mental aid. Employees can take time to get protection, seek safety planning or relocate, seek help from legal and civil authorities, and to enroll their chidren in a new school.
Additional changes to the law include documentation, confidentiality and notice to employees. The law also expands the list of covered family members for whom paid sick and safe leave can be used.
New York City Fair Workweek Law-Fast Food and Retail Employers
In November 2017, the New York City Fair Workweek Law went into effect requiring that New York City fast food employers provide employees with two weeks of notice of schedule and pay premiums to employees for changes made to their schedules, offer open shifts to existing fast food employees, ban “clopenings” for fast food employees, ban on-call scheduling for retail employees, and require that retail employees receive 72 hours advance notice of schedules.
U.S Department of Labor Changes Intern Test
The United States Department of Labor (DOL) has adopted the “primary beneficiary” test for determining whether an intern is truly an intern or is actually an employee under the Fair Labor Standards Act (FLSA). This replaces the six-factor test the DOL has used for many years. The “primary beneficiary” test is already used by most United States Courts of Appeals and is designed to be more flexible and analyze internships on a case by case basis.
The DOL has issued a new fact sheet on internship programs that includes the seven factors looked at under the “primary beneficiary” test as follows:
- The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
- The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
- The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
- The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
- The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
- The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
- The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
If analysis of these circumstances reveals that an intern or student is actually an employee, then he or she is entitled to both minimum wage and overtime pay under the FLSA. On the other hand, if the analysis confirms that the intern or student is not an employee, then he or she is not entitled to either minimum wage or overtime pay under the FLSA.
WATCHLIST: New York City Employers May be Required to Grant Employees Temporary Schedule Changes for Medical and Family Care Purposes
The New York City Council voted in favor of a new law requiring certain employers to grant a temporary schedule change to employees. The new law will go into effect if it is signed by Mayor De Blasio. Under the proposed law, employers would be required to grant requests for a schedule change at a minimum of two times per calendar year for up to one business day per request, or once per calendar year for two business days for a single request.
A temporary schedule change is defined “as a limited alteration in the hours or times that or locations where an employee is expected to work, including, but not limited to, using paid time off, working remotely, swapping or shifting work hours and using short-term unpaid leave.”
An employee can make a request for a schedule change for the following reasons:
- To provide care to a minor child or to a family or household member with a disability who requires medical care or assistance with the needs of daily living;
- To attend proceedings to secure subsistence benefits for the employee or a family member, or
- For other reasons covered under the New York City Earned Sick and Safe Time Act.
For more information about any of the changes mentioned above, please feel free to contact Aliza Herzberg or Lori Barnea. Check back for more updates at www.herzberglawgroup.com.
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Read MoreAll Employers Take Note: New York State Implements Paid Family Leave
The New York Paid Family Leave Law (“NYPFL”) takes effect on January 1, 2018 and every employer statewide must take action. To comply with the new law, employers should review leave policies and update employee handbooks, policies and practices.
The NYPFL will provide partial pay to New York employees during a statutory period spent providing care for a family member with a serious health condition, bonding with a child during the first 12 months after the child’s birth or adoption, or attending to specific obligations arising because the spouse, child, or parent of the employee is on or preparing for active duty in the United States armed forces. All employers, large and small, are subject to the new law. Full-time employees are eligible once they have worked 26 or more consecutive weeks. Part-time employees become eligible after working for 175 days.
The State Insurance Fund provides payments to employees who are eligible under the NYPFL. The law amends the New York State Workers’ Compensation Law and is wholly financed by deductions directly from employees’ wages. Any employer covered by the New York Workers’ Compensation Law must fund the NYPFL by deducting contributions from employees’ pay, and allow eligible employees to take paid family leave. While an employee is collecting workers’ compensation payments (s)he is not eligible to receive payments under NYPFL.
Benefits under NYPFL will be phased in over four years, beginning January 1, 2018, as follows:
| January 1, 2018 | January 1, 2019 | January 1, 2020 | January 1, 2021 |
| Up to 8
workweeks |
Up to 10 workweeks | Up to 10
workweeks |
Up to 12
workweeks |
| 50% of the employee’s average weekly wage, capped at 50% of the state’s average weekly wage | 55% of the employee’s average weekly wage, capped at 55% of the state’s average weekly wage | 60% of the employee’s average weekly wage, capped at 60% of the state’s average weekly wage | 67% of the employee’s average weekly wage, capped at 67% of the state’s average weekly wage |
Funding and Eligibility for NYPFL
- Beginning on or after July 1, 2017, NYPFL coverage will be included under the disability policy all New York employers must carry. The insurance premium will be fully funded by employees through payroll deductions.
- The maximum amount of deduction per employee per pay period is capped at $1.65/$85.56 for 2018. All employees must participate in NYPFL.
- The only exception is for employees who are at a job that will never reach 26 continuous weeks or 175 days of work needed to qualify for NYPFL. Employers must provide ineligible employees the option to file a waiver to exempt them from making contributions for NYPFL coverage. Employers may make deductions from the pay of employees who do not file such a waiver. If an employee later becomes eligible due to a change in work hours, the waiver can be revoked.
Administering NYPFL
- Prior to receiving benefits under NYPFL, employees must present certification from a health care provider treating the employee’s family member or, if the leave follows birth of a child, the health care provider treating the mother of the child. For adoption and foster care, different types of documentation must be presented. For a qualifying military event the employee will need to present copies of duty papers or other supporting documentation.
- During NYPFL, employers must maintain employees’ existing health benefits for the duration of the leave as if employees had continued to work. This means that employees must pay their portion of the insurance premium for the duration of the leave.
- The NYPFL also requires employers to reinstate employees returning from NYPFL to their prior position of employment or to a comparable position with comparable pay, benefits, and other terms and conditions of employment.
- NYPFL does not require employers to allow employees on NYPFL to continue to accrue benefits, such as sick or personal days, or seniority rights while out on leave.
- Employers must allow employees to take NYPFL as intermittent leave in increments of no less.
Documenting NYPFL
The New York State Workers Compensation Board (the “Board”) has issued the following forms that may be used by employees to request NYPFL benefits:
- Bond with a Newborn, a Newly Adopted or Fostered Child; https://www.ny.gov/sites/ny.gov/files/atoms/files/bonding.pdf
- Care for a Family Member with a Serious Health Condition https://www.ny.gov/sites/ny.gov/files/atoms/files/careforfamilymember.pdf
- Assist Families in Connection with a Military Deployment https://www.ny.gov/sites/ny.gov/files/atoms/files/military.pdf
The Board also issued a form for temporary or part-time employees who work less than 26 consecutive weeks or less than 175 days that may opt-out of NYPFL:
- The Employee Paid Family Leave Opt-Out and Waiver of Benefits https://www.ny.gov/sites/ny.gov/files/atoms/files/PFLWaiver.pdf
Finally, the Board issued 2 forms to be used by employers who are exempt from coverage but provide NYPFL voluntarily:
- Employer’s Application for Voluntary Coverage (No Employee Contribution) https://www.ny.gov/sites/ny.gov/files/atoms/files/PFL-135_1017.pdf
- Employer’s Application for Voluntary Coverage (Employee Contribution Required) https://www.ny.gov/sites/ny.gov/files/atoms/files/PFL-136_1017.pdf
Interplay Between NYPFL and Existing Leave Policies
- If an employer’s other leave policies are less restrictive than the rules under the NYPFL, an employer can require an employee to follow its existing policies.
- If an employer has a paid family leave program that fulfills or exceeds the NYPFL, an employee will receive only the employer’s benefits and the employer can recoup the NYPFL benefits directly. However, the NYPFL does not permit employers torequire employees to use their available sick or vacation time towards the NYPFL time. This is in contrast to the FMLA which allows employers to require employees to exhaust paid sick and/or vacation time concurrent with any leave taken under the FMLA.
- In addition, like New York state disability payments, employers that pay full salary during a period of paid family leave may request reimbursement by their insurance carrier for advance payment of benefits.
Key Distinctions Between NYPFL, FMLA and State Disability Benefits
- NYPFL is not available for an employee’sown serious health condition, although FMLA and New York State disability leave may cover such conditions.
- NYPFL only begins after the birth of a child, therefore it does not cover leave taken for pregnancy related conditions. FMLA and New York State disability leave may cover such conditions.
- Almost all employees are covered by the NYPFL, while only employees who work for employers that have 50 or more employees are covered under the FMLA.
- Employees must use FMLA and NYPFL concurrently. Employees may not stack leave time to take more than 12 weeks, or the maximum duration of leave permitted at the time by the phase-in schedule.
- Employees must use NYPFL and New York State disability benefits concurrently. Employees who also are eligible for disability benefits may receive only a combined total amount of 26 weeks of disability benefits and NYPFL benefits in a 52-consecutive calendar week period.
Employers have between now and January 1, 2018 to prepare for these major changes to the law concerning family leave in New York. We recommend speaking with your insurance carriers regarding adding NYPFL coverage to your policies and asking your payroll provider to add another deduction for NYPFL. If you use a PEO, you should take this time to check with your PEO to ensure they are prepared to comply with the new regulations once they go into effect.
For more information regarding the NYPFL or any other employment matter, please contact Aliza Herzberg or Lori Barnea.
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