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.