On September 6, 2021, New York State Governor Kathy Hochul announced that the New York State Department of Health (DOH) designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to public health under the New York State Health and Essential Rights Act (HERO Act). Under the HERO Act, New York State employers must now take the following steps to ensure compliance with the HERO Act: review their airborne infectious disease prevention plans (the Plan); implement the protective measures set forth in the Plan, and provide employees with verbal and written notice of the Plan.
Pursuant to the HERO Act, now that a highly contagious communicable disease has been designated by the DOH, each New York state employer must do the following:
- Review and update their Plan, if necessary, to ensure that it incorporates current information, guidance, and mandatory state requirements.
- Assign a supervisory employee with enforcement responsibilities to monitor the measures set forth in the Plan.
- Provide employees with a verbal review of the Plan, other workplace safety policies, and their under the HERO Act, including the right to report violations of the Plan without retaliation or refuse to work if the employee would face an unreasonable risk of exposure.
- Provide employees with a written copy of the Plan in the workers’ language.
Throughout the designation of an airborne infectious disease outbreak, employers must also take steps to mitigate the threat of transmission of the airborne disease, including implementing the following:
- Health Screenings and Exclusion of Symptomatic Employees: Employers must perform daily health screenings at the beginning of the workday and exclude symptomatic individuals from the workplace.
- Face Coverings: Employers must provide employees with masks at no cost and require that employees wear masks when physical distancing cannot be maintained and in accordance with applicable guidance from the DOH and CDC. Under CDC guidance, all individuals must wear masks when working in public indoor settings that are in areas with substantial or high rates of COVID-19 transmission.
- Physical Distancing: Employees should be 6 feet apart when possible.
- Hand Hygiene Facilities: Appropriate handwashing facilities must be available to employees.
- Cleaning and Disinfection: Enhanced cleaning and disinfecting protocols must be followed, including daily disinfecting of bathrooms and breakrooms.
Employers that did not previously adopt and distribute a safety plan should do so now. A sample plan can be found here: https://dol.ny.gov/system/files/documents/2021/07/model-airborne-infectious-disease-exposure-prevention-plan-p765.pdf
Please reach out to us with any questions or concerns.
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.Read More
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 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.
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.Read More
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.
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
|Up to 10 workweeks||Up to 10
|Up to 12
|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.
- 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.
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.Read More
Beginning October 31, 2017, New York City will join a growing number of cities and states across the nation that ban its employers from making inquiries into prospective employees’ salary history. This new law was designed to address gender-based wage gaps, and is part of a trend in recent wage equity legislation that has been passed in California, Delaware, Maryland, Massachusetts, Oregon and Philadelphia. Similar laws are pending throughout the country, including the federal “Pay Equity for All Act of 2017.”
The NYC law prohibits employers from the following:
- Directly asking applicants for their past salaries.
- Asking former employers, headhunters, recruiters or references for the prospective employee’s salary history.
The NYC law does NOT apply to the following:
- Internal candidates who are applying for a transfer or a promotion with their current employer.
- Public employees whose salaries are determined by collective bargaining agreements.
- Voluntary disclosures by the job applicant to the prospective employers of the applicant’s salary history.
- Objective measures of the applicant’s productivity such as revenue, sales or other production reports, so long as the employer does not ask how that productivity translated into compensation. (Employers may ask about profits generated but not about commission percentage the applicant received.)
- Unvested equity or deferred compensation that an applicant would forfeit or have cancelled by the applicant’s resignation from his or her current or former employer.
The NYC law applies to the following employees and employers:
- Employers of all sizes, if they are hiring applicants in NYC are required to follow the law.
- Most applicants for new employment in New York City, regardless of whether the position is full time, part-time or an internship, including independent contractors who do not have their own employees.
How to prepare for the new law:
- Review existing policies and practices to ensure compliance with the new legislation.
- Review job applications and background check forms to ensure there are no requests for salary history.
- Train human resource staff and hiring managers about permissible compensation questions to ask during an interview.
- Coordinate with outside vendors such as recruiters and background check providers to ensure they will comply with the new law.
- Implement a process to document voluntary disclosure of salary history by an applicant.
Employers who violate the new law may be required to pay damages, a fine and/or be subject to additional affirmative relief such as mandated training and posting requirements. For questions about this new law, please contact Aliza Herzberg or Lori Barnea.Read More
On May 18, President Obama announced the Department of Labor’s final rule updating federal overtime regulations and significantly increasing the number of employees eligible for overtime pay.
Read more at Luxury Daily.Read More