Author: Julie Bastian

Before joining Horton Law, I spent most of my legal career working as in-house counsel for a large privately-held global workforce solutions and business service company. I assist businesses with risk mitigation by analyzing their existing human resources policies and procedures and handling employment matters that come up. Nothing on the firm blog should be considered legal advice. If you need legal advice and think we can help, let me know!

September 28, 2020

New York Paid Voting Leave Law Amended (Again)

The 2020-2021 Financial Budget signed into law by Governor Andrew Cuomo on April 3, 2020, amended last year’s expanded New York Paid Voting Leave Law. The amendments essentially return the law to its pre-2019 form and will come as a relief to many employers.

New York Paid Voting Leave Allowance

In 2019, the Legislature required all New York employers to provide employees up to three hours to vote in any election.

The 2020 amendments return to the previous allowance of only two hours. Moreover, the paid leave is once again available only if the employee does not have 4 consecutive hours to vote outside of work hours.

These changes will dramatically reduce the number of employees eligible to take leave under the law.

Requesting Time Off To Vote

An employee who does not have 4 consecutive hours before or after work in which to vote may request up to 2 hours of paid time off on an election day. However, such employees must submit the request no less than 2 and no more than 10 days before the election.

Notice of Employee Rights

New York employers are still required to post a conspicuous notice containing the provisions of the paid voting leave law at least 10 days prior to any election. The notice should be in a location where all employees can easily view it. The notice must remain up until the polls close on Election Day.

Employers can most easily ensure compliance by leaving the notice posted at all times.

Click here for a copy of the law for posting.

Covered Elections

The paid voting leave law applies to all elections in New York where voters nominate or elect people to any federal, state, county, city, town, or village office. This includes primary elections, but does not include school board elections.

Update Your Policies and Postings

Employers should review and update any applicable company policies. You must also update your employee rights notices under the New York Paid Voting Leave Law, which now must contain the amended language.

Failing to provide an eligible employee with time off to vote or to compensate an employee for taking time off to vote is punishable as a criminal misdemeanor.

August 24, 2020

New York Phase 4: Reopening Gyms & Fitness Centers

On August 17, 2020, Governor Andrew Cuomo announced that gyms and fitness centers could finally reopen as early as August 24, 2020. However, reopening gyms would not be a simple task in New York. Operators must comply with extensive guidelines, including a mandatory on-site inspection by the local health department.

NYS Guidelines for Reopening Gyms & Fitness Centers

The New York State Department of Health has issued Summary and Detailed Guidelines for reopening gyms and fitness centers. The guidelines include recommended and mandatory procedures for social distancing, protective equipment, hygiene, cleaning, and disinfection, communication, and screening. They also provide pertinent information related to on-site activities and air handling systems.

Covered Businesses

The gym and fitness center guidelines cover a wide range of activities, such as:

Fitness activities and facilities that stand alone or are located in a hotel, residence, or office
Gyms and fitness centers located in higher education institutions
Yoga/Pilates/Barre studios
Boxing/kickboxing gyms
Fitness boot camps
CrossFit or other plyometric boxes;
Other group fitness classes (e.g., spin, rowing, and dancing).

Although the guidelines take effect on August 24, 2020, county executives and the Mayor of New York City could delay the effective date until September 2, 2020. If your gym or fitness center has other facets of the business that operate out of the building that you intend to reopen, you will also be required to comply with other applicable industry-specific guidelines from the NYSDOH. Examples include fitness centers or gyms that contain restaurants, snack bars, pools, or childcare centers.

Mandatory Parameters

Gyms and fitness centers cannot exceed 33% capacity, counting both employees and patrons. Outdoor classes and activities are encouraged, to the extent practicable.

Classes or group activities are restricted to the lesser of:

- A size that permits social distancing of 6 feet between participants and the instructor;
- A maximum of 33% of a typical class size; or
- The social gathering limit set by the State, which is currently 50.

Both employees and patrons (who can medically tolerate them) must wear face coverings at all times. Everyone must also socially distance by keeping at least 6 feet apart.

Unlike most other businesses, gyms and fitness centers must be inspected by the local health department before or within 14 days after opening. Local health departments will inspect for compliance with the NYSDOH reopening guidelines.

High-risk activities that require physical contact, such as boxing and martial arts, are still prohibited. Businesses can refer to the separate “Interim Guidance for Sports and Recreation during the COVID-19 Public Health Emergency” to determine the level of risk, and corresponding restrictions, associated with various sports and recreational activities.

Air Filtration

The guidelines establish new standards related to air filtration systems. Gyms and fitness centers that have central air handling systems must use an HVAC filtration system that meets the highest-rated filtration compatible with the currently installed filter rack and air handling system. The minimum is a MERV-13, or industry equivalent or greater (e.g., HEPA), as applicable. A certified professional must document compliance in a written statement.

Facilities that have a central air handling system that cannot handle a MERV-13 or greater filtration system must obtain a statement from a certified professional confirming that the current system would not perform adequately with a higher filtration system. These facilities, along with those who do not control their central air handling systems, must adopt additional ventilation and air filtration mitigation protocols as set forth by the U.S. Centers for Disease Control (CDC) and the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE).

Other Standard Reopening Conditions

As with all other industry-specific guidelines set forth by the NYSDOH, gyms and fitness centers must create and implement a safety plan. The plan must include protocols for conducting health screenings and procedures for obtaining contact information for all employees, patrons, and visitors.

Thus must also develop a communication plan that allows the company to disseminate COVID-19 related information effectively.

What Should New York Gyms and Fitness Centers Do Next?

Gym and fitness center operators must review the guidelines and affirm that they have read, understood, and intend to implement them before reopening. You must prepare a written safety plan and post it on-site along with all other required signage. You must also schedule an on-site inspection with your local health department.

For our latest information on reopening your workplace and other issues of importance to New York employers, subscribe to our newsletter and follow Horton Law on LinkedIn.

July 29, 2020

New FMLA Forms for 2020

On July 16, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) released revised Family and Medical Leave Act (FMLA) optional-use forms. Unlike the last revisions, there are tangible changes this time. Employers may begin using the new FMLA forms now.

Streamlined Forms

The DOL emphasized that the new forms are more streamlined and user-friendly:

“WHD’s new forms are simpler and easier for employees, employers, leave administrators and healthcare providers to understand and use. Revised with substantial public input, the forms include more questions that users can answer by checking a response box and electronic signature features to reduce contact. WHD believes the changes will reduce the time users spend providing information, improve communications between leave applicants and administrators and reduce the likelihood of violations.”

The following new FMLA forms are available through the DOL’s website:

WH-381: Eligibility Notice – This notice is used to inform an employee of their eligibility for FMLA leave or advise the employee of at least one reason why they are not eligible.
WH- 381: Notice of Eligibility & Rights and Responsibilities – This form advises an employee of their eligibility for FMLA leave or why they are not eligible. It also informs the employee of specific expectations and obligations associated with the leave request and the consequences of not meeting those obligations.
WH-382: Designation Notice – The form notifies the employee of the status of their FMLA leave request. It allows the employer to request additional information to process the application.
Certification of Healthcare Provider for a Serious Health Condition
- WH-380-E: Healthcare Provider Certification for Employee’s serious health condition.
- WH-380-F: Health Provider Certification for Employee’s Family member with a serious health condition.
Certification of Military Family Leave
- WH-384: Qualifying Exigency – Use this form when a leave request is related to the deployment of the employee’s spouse, son, daughter, or parent.
- WH-385: Military Caregiver Leave of a Current Servicemember – Use this form when an employee is requesting leave to care for a family member who is a current service member with a serious injury or illness.
- WH-385-V: Military Caregiver Leave of a Veteran – Use this form when an employee is requesting leave to care for a family member who is a covered veteran with a serious injury or illness.

Rationale Behind New FMLA Forms

The DOL provides these forms for optional use by employers. Though alternative forms may be used, employers must meet minimum legal notice requirements. The DOL forms are presumptively valid if employers use them properly. The new electronically fillable PDF forms are designed to accomplish these objectives:

Further streamline the FMLA leave request, approval, and implementation process by making the forms more user-friendly.
Reduce the amount of time required to complete the forms.
Reduce the number of errors and violations associated with the request process.
Improve communications between the employee and employer.
Address some of the questions and concerns raised during the 60-day public comment period following the DOL’s release of draft forms in October 2019.

The DOL also added a Q&A section related to the new forms. Here, the DOL reiterates that employers are not required to use the new forms. But the documents they use must contain the same basic notification information and require the employee or healthcare provider to disclose only the information necessary to process the request. Thus, the DOL generally recommends that employers (and employees) use the new forms.

Look for More DOL Developments on FMLA

On July 17, 2020, the DOL published a Request for Information (RFI) seeking public comments on the effectiveness of the current FMLA regulations. This action indicates that the DOL is contemplating additional regulatory changes to the FMLA leave request process. The RFI includes examples of possible FMLA topics public comment. But it also permits comment on any other FMLA topic. Interested parties can submit comments by mail or electronically through September 15, 2020.

Employers should use this update as an impetus to review their current FMLA policies and procedures for compliance.