Author: Scott Horton

Scott has been practicing Labor & Employment law in New York for almost 20 years. He has represented over 400 employers and authored 100s of articles and presentations and wrote the book New York Management Law: The Practical Guide to Employment Law for Business Owners and Managers. Nothing on this blog can be considered legal advice. If you want legal advice, you need to retain an attorney.

September 9, 2020

2021 Paid Family Leave in New York

We are now in the third year of New York’s Paid Family Leave Program. It continues to get more costly for employees. But the benefits also get better. Here a primer on New York’s 2021 Paid Family Leave Program.

Employee Contributions

The New York Department of Financial Services (DFS) has announced the maximum employee-contribution rate for 2021. It will increase from 0.270% to 0.511% of the employee’s gross wages, up to an annual maximum. This maximum annual contribution will be $385.34 in 2021 compared to $196.72 in 2020.

The contribution rate increased from 0.153% to 0.270% in 2020. That changed the maximum annual contribution from $107.97 to $196.72. Thus, the maximum annual contribution has nearly doubled since last year and increased overall by 350% in just 3 years.

This means an additional annual cost of up to nearly $300 for many employees from 2018 to 2021. And additional increases remain likely each year.

2021 Paid Family Leave Benefits

But it’s not all bad news for workers. DFS also confirmed that the weekly paid family leave benefit will increase again in 2021. The weekly benefit rate increases from 60% of the employee’s average weekly wage to 67%. This percentage only applies up to the first $1,450.17 of weekly earnings. An employee who earns more than that can only receive $971.61 per week in paid family leave benefits.

The maximum leave allowance also increases from 10 weeks in 2019-2020 to 12 weeks in 2021. That is the last scheduled increase in the length of the paid leave allowance, which began at 8 weeks in 2018.

Preparing for 2021

Companies should confirm their 2021 paid family leave premiums with their insurance carriers. Then make sure that next year’s payroll will include the correct contribution rates.

If your paid family leave policy reflected specific rates for paid family leave in 2020 (or earlier), then you might want to update that component.

This is also an excellent opportunity for employers to review which employees are eligible to opt out of the paid family leave program. Employers must offer qualifying employees the chance to waive coverage (and corresponding paycheck deductions). However, the waiver automatically expires if the employee later becomes eligible for paid family leave.

Finally, employers might find that these changes coupled with unique COVID-19 issues increase the utilization of paid family leave in 2021. First, the benefits are higher and last longer, making it more financially viable for employees to take time off from work. Plus, since employees have to pay more for the program, they might feel even more entitled to use it. These factors might require employers to replace more worker hours next year or otherwise allow for lost productivity.

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August 29, 2020

EEOC Issues New Guidance on Opioid Addiction

On August 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued technical guidance on opioid addiction and employment. Workforce substance abuse is on the rise and can cause many expensive problems for businesses and industries. These problems can range from a loss of productivity, injuries, disruption of operations, and increased health insurance claims. While employers may prohibit the illegal use of drugs and alcohol at the workplace, they may not discriminate against a person based on drug addiction or alcoholism.

Americans with Disabilities Act

The Americans with Disabilities Act of 1990 (ADA) prohibits disability discrimination in areas including employment, transportation, and public services. Title 1 of the ADA focuses on the workplace and requires employers to make reasonable accommodations for employees with disabilities. The EEOC has enforcement responsibility for Title 1 of the ADA.

The ADA does not protect an employee or job applicant who is “currently engaging” in the illegal use of drugs. However, it does extend protections to employees who:

who have been successfully rehabilitated and who are no longer engaged in the illegal use of drugs;
are currently participating in a rehabilitation program and are no longer engaging in the illegal use of drugs; and
are regarded, erroneously, as illegally using drugs.

EEOC Technical Documents on Opioid Addiction

Two new technical documents from the EEOC intend to provide clarity to existing requirements under the ADA.

The EEOC notes that this guidance “is not a new policy,” but instead explains existing principles.

“Use of Codeine, Oxycodone, and Other Opioids: Information for Employees”

This guidance document explains that those using prescription opioids, addicted to opioids, or who were addicted to opioids in the past may have the right to reasonable accommodations. The EEOC states that employers can’t fire a worker who lawfully uses opioids unless the employer first considers whether there is a way for them to perform their duties safely. The guidance defines “opioids” to include prescription drugs such as codeine, morphine, oxycodone, hydrocodone, and meperidine and illegal drugs like heroin.

Click here to access “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees.”

Disqualification from a Job

The legal use of an opioid seldom automatically disqualifies an employee for a job. Conversely, employers can fire (or not hire) employees for illegally using opioids, even if there aren’t any safety or performance concerns.

In the case of legal opioid use by prescription, the employer must first consider whether the employee can do the job safely and effectively.

Reasonable Accommodations

Employers must provide reasonable accommodations to a job applicant or an employee who needs them because of a medical condition that qualifies as a disability under the ADA unless it would impose an undue hardship on the employer. Reasonable accommodations can include a change in the way things are generally done at work, including different breaks or work schedule, a change in shift assignments, and temporary transfers.

Employers may need to accommodate employees’ opioid use when the employee:

takes prescription opioids to treat pain;
is recovering from opioid addiction; or
has a medical condition related to an opioid condition.

Employees may request a reasonable accommodation from their employer at any time. In evaluating the accommodation request, an employer must engage in an “interactive process” with the employee. In some cases, the employer may ask the employee to submit medical documentation to support their request. An employer does not have to provide the accommodation requested if an alternative accommodation would also enable the employee to perform the essential functions of the job.

For more on reasonable accommodations, click here.

Sick Leave for Treatment or Recovery

When an employee requests to take a leave for treatment or recovery, an employer may be required to allow the individual to use accrued paid leave or permit the employee to take time off without pay if no qualifying paid leave is available.

Drug Testing

This EEOC guidance document emphasizes that if a business has a drug-testing program, employers should give any applicant or employee a chance to provide information about lawful drug usage.

“How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed”

This guidance document lays out the legal road map for healthcare providers. The guidance begins by describing workers’ ADA rights and the process of reasonable accommodations for disabilities. Then the guidance offers medical professionals tips on how to write and provide employers with medical documentation about a person’s condition.

When a patient asks for a reasonable accommodation, the employer may ask for medical documentation of the employee’s disability. This EEOC guidance on opioid addiction suggests that medical providers might include the

Medical professional’s qualifications and the nature and length of the relationship with the patient;
Nature of the patient’s medical condition;
Patient’s functional limitations in the absence of treatment;
Need for a reasonable accommodation; and
Suggested accommodations.

Click here to access “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed.”

Review Your Company Policies and Procedures

Not everyone understands the implications of disability discrimination laws related to opioid addiction. Employers should take this opportunity to review their policies and procedures related to employee drug use. Additional training for managers can also help avoid inadvertent violations of the ADA.

August 21, 2020

NLRB Proposes Reduced Disclosure of Employee Contact Information in Union Elections

On July 28, 2020, the National Labor Relations Board (NLRB) proposed additional amendments to its current rules and regulations governing election procedures. One of the proposals would modify what employee contact information employers must provide to unions before the election. Specifically, employers would no longer be required to disclose employees’ personal email addresses and home and cellular telephone numbers.

History of Employee Voter Lists

In a 1966 case involving Excelsior Underwear, Inc., the NLRB established a requirement that employers provide unions petitioning to represent employers with a list of eligible voters before the election. Employers originally had to include only the employees’ home addresses:

“[The access of all employees to such communications can be insured only if all parties have the names and addresses of all the voters. In other words, by providing all parties with employees’ names and addresses, we maximize the likelihood that all the voters will be exposed to the arguments for, as well as against, union representation.”

In 2014, an Obama-era NLRB majority revised its election rules and regulations. These amendments included new employee contact information requirements for the voter lists. Employers had to disclose all “available” personal email addresses and home and personal cellular telephone numbers of all eligible voters. According to the NLRB in 2014, this addition addressed the dramatic change in electronic communications. Reasons provided in support of this greater disclosure included:

The prevalence of telephones as compared to 1966;
The ability to leave voicemails if someone doesn’t answer the original phone call;
The emergence of cellular and smartphones as a universal point of contact combining telephone, email, and text messaging;
The need to reach persons who rely on their phone, rather than email for communication; and
The fact that some employers may not bother to update physical addresses and may contact their employees exclusively via phone.

Proposed Change Regarding Employee Contact Information

The 2014 rule imposed new administrative burdens on employers and raised privacy concerns from employees.

Now the NLRB seeks to undo much of the 2014 expansion of the voter lists. The proposed rule would eliminate the additional employee contact information, specifically the personal email addresses and home and cellular telephone numbers.

A press release announced, “The Board believes, subject to comments, that elimination of this requirement will advance important employee privacy interests that the current rules do not sufficiently protect.”

Public Comment Period

The public has until September 28, 2020, to submit initial comments. There is then another opportunity to submit replying comments (to comments submitted by others) by October 12, 2020.

Assuming the proposed rule takes effect, it will only affect employers involved in an NLRB election. These most often consist of situations where a union is seeking to represent a group of employees in a company.

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