Category: New York

May 14, 2020

Reopening New York – Phase 1

On May 14, 2020, New York Governor Cuomo signed an executive order extending business closures statewide through May 28, 2020, except as reopening is allowed under a previously announced 4-phased rubric. The State is taking a data-driven, highly regulated approach. The timeline for reopening will depend on health metrics within each of the 10 regions of New York. Once reopening in a region begins, it will proceed in four phases in which different industries can reopen to varying degrees. Phase 1 includes several business sectors where companies can more easily limit close person-to-person contact.

The State has issued initial guidance for businesses able to reopen during Phase 1. This information is also crucial for companies that have remained open as essential businesses. They too must satisfy New York’s latest restrictions to continue to operate.

Regional Approach

So far, Governor Cuomo has controlled most aspects of statewide closings. As of May 15, 2020, he is shifting more responsibility to 10 regional “Control Rooms” across the state. Each regional control room has a “Captain” and consists primarily of the top elected leaders of the constituent counties and cities.

These are the 10 regions, with their regional control room captains:

Capital Regional: Major General Patrick A. Murphy
Central New York: Matt Driscoll
Finger Lakes: Bob Duffy
Hudson Valley: Mike Hein
Long Island: Eric Gertler
Mohawk Valley: RoAnn Destito
New York City: Rossana Rosado
North Country: Erik Kulleseid
Southern Tier: Basil Deggos
Western New York: Lt. Governor Kathy Hochul

Within each of these regions, Phase 1 of the reopening plan can only begin after 7 metrics are met. The State has created an online dashboard to track the metrics daily.

According to Governor Cuomo, the Control Rooms can (and should) “dial back” reopening measures if the data heads back in the wrong direction. The Control Rooms will also be responsible for answering questions from companies unsure of what the reopening parameters mean for them.

Phase 1 Industries

New York has identified the following business groups for inclusion in Phase 1 of the reopening process:

Construction
Agriculture, Forestry, Fishing, and Hunting
Retail (Limited to curbside or in-store pickup or drop off)
Manufacturing
Wholesale Trade

The State’s reopening website lists sub-categories under each of these industry categories. For example, construction specifically includes “land subdivision” as well as nonresidential and residential building construction, among others. And retail includes things like clothing stores, florists, and “direct selling establishments.”

Reopening Guidelines

The State has issued industry-specific reopening guidelines for each of the Phase 1 business groups. This guidance includes both “Summary Guidelines” and a longer “Detailed Guidelines.”

Even the shorter “summary” guidance documents are extensive. They seem to build on federal CDC and OSHA guidance with additional recommendations and requirements designed to keep employees and customers safe from contracting COVID-19.

Businesses that choose to reopen (or remain open if they have already been operating as essential) must review and affirm their compliance with the detailed guidelines for their industry. The guidance documents currently available indicate they are “interim” in nature. Companies must continue to monitor the latest requirements and best practices:

“These guidelines are minimum requirements only and any employer is free to provide additional precautions or increased restrictions. These guidelines are based on the best-known public health practices at the time of Phase I of the State’s reopening, and the documentation upon which these guidelines are based can and does change frequently. The Responsible Parties – as defined below – are accountable for adhering to all local, state and federal requirements relative to [the applicable industry]. The Responsible Parties are also accountable for staying current with any updates to these requirements, as well as incorporating same into any [industry] activities and/or Site Safety Plan.”

The guidance documents also add:

“In addition to the following standards, both essential and non-essential businesses must continue to comply with the guidance and directives for maintaining clean and safe work environments issued by DOH.”
“Please note that where guidance in this document differs from other guidance documents issued by New York State, the more recent guidance shall apply.”

Guidance Categories

The industry-specific guidelines include sections addressing people, places, and processes.

“People” sub-components include requirements for:

physical distancing;
gatherings in enclosed spaces;
workplace activity; and
movement and commerce.

“Places” covers:

protective equipment;
hygiene and cleaning;
phased reopening; and
communication plans.

“Processes” relates to:

screening and testing; and
tracing and tracking.

Employer Plans

All businesses eligible to reopen must develop written safety plans. The State has created a safety plan template that companies may choose to use. Each company must post their safety plan “conspicuously” onsite.

The safety plan template follows the structure of the guidelines using the people, places, and process sections. Each section includes pre-printed requirements along with blanks to add additional company-specific precautions.

The template concludes with an “other” section where businesses can add information.

During Governor Cuomo’s press conference on May 14, 2020, Secretary to the Governor Melissa DeRosa confirmed that companies would not submit these plans for State approval. However, she cautioned that companies will be held to complying with their established plans. In essence, the plans will be used to hold businesses accountable if they do not maintain adequate safety precautions after reopening.

Affirmation

Despite not having to submit their individual safety plans, companies must confirm their review of New York’s reopening guidelines. The detailed industry-specific guidance documents link to an online form that businesses must submit to the State. The form asks the company to indicate which Phase 1 industry they belong to. The person completing the form must enter their name and contact information along with the business name and address.

In submitting the form, the user agrees that:

“I am the owner or agent of the business listed. I have reviewed the New York State interim guidance for business re-opening activities and operations during the COVID-19 public health emergency and I affirm that I have read and understand my obligation to operate with such guidance.”

General Requirements

Though each set of industry guidelines varies in some ways, most/all contain similar basic concepts. Here are some of them:

Employers must implement some form of mandatory health screening assessments before employees begin work each day.
Employees must maintain 6 feet between each other, unless safety or a core work function requires closer proximity.
Employers must provide employees with an acceptable face covering at no cost to employees.
In-person gatherings must be limited as much as possible.
Signs throughout the worksite must emphasize proper hygiene, social distancing rules, appropriate use of PPE, and cleaning and disinfecting protocols.
Companies must maintain logs of all workers and visitors who might have close contact with other individuals at the site.
Employers must notify State and local health departments if a worker tests positive for COVID-19 and assist with contact tracing efforts.

All of these items, along with others, appear on the State’s safety plan template.

Top Priorities for Phase 1 Businesses

If your business falls into a Phase 1 industry, you must review the relevant guidance documents. They are available at https://forward.ny.gov/industries-reopening-phase.

Your company must submit the compliance affirmation and prepare and post a written safety plan. Of course, this requires you to evaluate the realities of your operations and modify them accordingly. As the State documents emphasize, these are only the legally-mandated minimum requirements. Governments officials may shut you down or take other action if you are not complying. However, satisfying the State’s guidelines does not guarantee that the coronavirus cannot be spread in your facilities. Moreover, it likely will not provide an absolute defense to possible claims by employees or other individuals that your business is unsafe or that the company is responsible for them contracting COVID-19.

Unfortunately, much is still unknown about this virus and related diseases. Thus, all “best practices” are still uncertain and subject to change. Therefore, your business must continue to monitor the latest developments and adapt accordingly.

Horton Law continues to monitor the evolving requirements for all New York businesses. Sign up for our email newsletter to receive our latest blog posts and announcements of upcoming free webinars on this topic. You can also follow us on LinkedIn for even more frequent updates.

May 11, 2020

New York Staffing Agencies and COVID-19

On March 20, 2020, Governor Andrew Cuomo signed an executive order that outlined New York’s 10-point Policy enacted to Assure Uniform Safety for Everyone (PAUSE). Among other things, the PAUSE order closed non-essential businesses and encouraged the residents of New York to stay at home. Some “essential businesses” could continue operating under social distancing rules, often meaning only essential personnel worked onsite. New York staffing agencies faced these restrictions as well, but often without control over the employees’ workplaces.

Under certain conditions, non-essential businesses and non-essential personnel who work for essential businesses were permitted to continue operations. Companies of all shapes and sizes and in all industries immediately scrambled to develop alternative ways to operate under the new restrictions. The most common change across all sectors in New York was a shift to a remote workforce.

Are New York Staffing Agencies “Essential Businesses”?

The COVID-19 pandemic has significantly affected business operations for New York staffing agencies. Many staffing agencies determined that their company was an “essential business,” because they provide other essential businesses with temporary contractors and assistance with direct-placement needs. These include clients throughout the health care, food service, manufacturing, and technology industries, as well as some start-up companies.

Despite being able to continue servicing these clients, some staffing agencies experienced a steady decline in revenue and the number of placements. Even “essential businesses” reduced their total headcount, including temporary workers that were previously placed on assignment. Outstanding job orders and negotiations with prospective clients were also canceled due to the economic downturn.

New York staffing agencies had to modify their business operations quickly to remain operational and survive this pandemic. These changes typically included one or more of the following:

An increase in the number of remote workers;
Permanent or temporary layoffs of direct staff and contractors;
Reduced compensation for either direct staff employees or contractors;
An immediate need to purchase equipment and technology for remote workers;
Adopting or revising company policies and procedures, employment agreements, and client contracts to address changes arising from the public health emergency.

The federal, state, and local governments are working on a plan to reopen the economy without significantly increasing the number of COVID-19 cases, hospitalizations, or deaths. President Trump announced that individual states would have the discretion to determine when and how to reopen their economies subject to some recommended prerequisites.

Recommended Federal Criteria for States to Reopen the Economy

Symptoms:

A downward trajectory of influenza-like illnesses reported within a 14-day period; AND
A downward trajectory of COVID-like syndromic cases reported within a 14-day period.

Cases:

A downward trajectory of documented cases within a 14-day period; OR
A downward Trajectory of positive tests as a percent of total tests within a 14-day period (flat or increasing volume of tests)

Hospitals:

Treat all patients without crisis care; AND
A robust testing program in place for at-risk healthcare workers, including emerging antibody testing.

New York’s Approach to Reopening

In New York, Governor Andrew Cuomo took the reins in determining how and when the State would reopen. On May 4, 2020, he announced during his daily press conference, a 4-phase plan for reopening the economy. Then on May 11, 2020, Governor Cuomo announced the creation of 10 regional Control Rooms across the state. These Control Rooms, consisting primarily of county executives, will apparently lead the reopening within their part of the State.

If the number of positive cases, hospitalizations, and deaths continues to decline, New York will begin to reopen businesses. During this transition, the State and the regional Control Rooms will carefully monitor the relevant data, including the transmission rate for COVID-19. If the transmission rate exceeds 1.1 (additional infections per infected individual), all reopening efforts may come to a screeching halt.

Prerequisites to Reopening a New York Region

So far, Governor Cuomo has indicated that before a region within New York can begin to reopen the economy, the following must occur:

There must be a 14-day drop in hospitalization and deaths;
The rate of new hospitalizations must fall below 2 per 100,000 residents across a 3-day rolling average;
At least 30% of hospital and ICU beds must be unoccupied;
At least 30 tests must be given for every 1,000 residents per month; and
Each county must retain at least 30 contact tracers per 100,000 residents.

4-Phase Approach

Before reopening, regions must meet the above prerequisites. Governor Cuomo previously mentioned a 14-day waiting period between phases to collect and review all relevant data. However, on May 11^th, he indicated the data, not a fixed timeline, would guide the transition between the phases. Relevant factors will include whether the action taken under each phase has led to an increase in the number of positive cases, hospitalizations, and deaths. Officials will also be monitoring the transmission rate and will be prepared to shut everything down if the rate meets or exceeds 1.1.

Phase 1 – Allows construction, manufacturing, wholesale suppliers, and some retailers to reopen as soon as May 15^th in regions reporting a steady decline in COVID-19 hospitalizations and deaths.

Phase 2 – Finance, real estate, insurance, and other types of retail businesses could begin to reopen.

Phase 3 – Begin to open restaurants and more retail.

Phase 4 – Reopen arts, entertainment, and education.

How Should Staffing Agencies Prepare for Reopening?

Employee Screening and Testing

Staffing agencies must determine if it makes sense to perform screenings or testing on direct staff employees before they enter the workplace. These measures could include temperature screening, symptom screening, questions related to recent travel or contact with individuals who tested positive for COVID-19, and active or antibody testing for COVID-19. Agencies should develop a plan for the implementation of whatever screening and testing they decide to conduct.

The decision to screen or test contract employees is much more complicated for staffing agencies. Contract employees typically work onsite at a client location. Therefore, staffing agencies must decide if it is feasible to screen or test contract workers or whether a more practical solution would be for clients to include contract employees in their screening and testing procedures. For the latter, staffing agencies would need to contact each client to determine what policies and procedures have been implemented. They would then need to determine whether their clients could treat contract employees similarly. Agencies should review the client procedures to determine if they comply with local, state, and federal law and whether the clients will conduct them in a non-discriminatory manner.

Return-to-Work Protocol

Each staffing agency should be developing a detailed plan to handle employees that test positive for COVID-19, are symptomatic, or must quarantine or isolate because of potential exposure to the coronavirus. The plan should include procedures for both direct staff and temporary contract employees. For example, will the employee need to provide medical documentation before returning to work?

Sanitizing and Disinfecting

Before reopening, staffing agencies should develop policies and procedures for disinfecting workstations, office equipment, and common areas such as lunchrooms, break rooms, and restrooms. They should provide employees access to sanitizer and tools to clean their workstations regularly and personal protective equipment, such as face masks and gloves, where possible.

Modifications to the Office

New York staffing agencies should consider making necessary changes to the physical workspace to optimize social distancing. Possible approaches include maintaining or increasing the number of employees that have permission to work remotely and staggering in-office workdays, shifts, or hours to reduce the number of employees present in the office. Agencies should implement policies to reduce the number of employees allowed in the breakroom, lunchroom, or restrooms at one time.

Staffing agencies should inform employees about the steps taken to educate, train, prepare, and protect its workforce and clients during this pandemic and reduce the risk of exposure or transfer of the COVID-19 virus to others. Agencies should also take the time to notify their clients of the steps taken to maintain or increase the level of customer service, to address client needs during this public health crisis, and to educate and equip staff and contractors with the tools necessary to perform their job duties safely and successfully.

It is also critical for staffing agencies to request that all clients provide information about all changes to their worksites, workstations, job duties, and policies and procedures that would affect their contract employees. This information is necessary for staffing companies to determine if the proper health and safety protocols are in place to protect their contract employees while on assignment. Since a staffing agency generally does not control the office space, worksite, schedules, safety protocols, and job duties for contract employees, an agency needs that information to assess the overall health and safety risks to its contractors and reduce its future liability. This information will allow staffing agencies to determine the risk level associated with the temporary placement and whether it makes sense to remove the contractor from the position given potential exposure.

Additional Considerations for New York Staffing Agencies

For New York staffing agencies to remain in business and be successful, they must review their current business operations and determine what changes to make and how to improve operations and customer service moving forward. Communication is key. As with any business, staffing agencies must communicate effectively with both employees and clients about how they’re managing these circumstances.

Due to the economic downturn caused by the pandemic, businesses will be looking to reduce costs wherever possible. It is prudent for staffing agencies to find ways to remain relevant during this time. These measures may include providing contractors with equipment or technology that would enable them to work from home and give clients peace of mind about security and privacy, as well as productivity. Staffing agencies should also review existing contract terms. They need to ensure that all terms can still be met under the circumstances. They should also consider future modifications that would help reduce or eliminate any obstacles encountered during or following this pandemic.

We expect rapid development on these issues over the following months. For more updates, subscribe to our email newsletter and follow Horton Law on LinkedIn.

April 27, 2020

New York Paid Sick Leave Law Applies to All Private Employers

On April 3, 2020, Governor Andrew Cuomo signed 2021 budget legislation that included sick leave for employees throughout New York. In addition to illnesses and injuries, the leave is available for circumstances related to domestic violence. Employees begin accruing sick leave on September 30, 2020, and may use it starting January 1, 2021. New York paid sick leave benefits vary based on the size of the employer.

The law only applies to private (non-governmental) employers. New York public entities, such as municipalities and school districts, are not covered.

Leave Requirements Depend on Business Size

“Small” Employers

Employers with up to 4 employees must provide employees with at least 40 hours of unpaid sick leave each year.

However, employers of this size who had net income over $1 million in the previous tax year must pay employees for this leave.

“Medium” Employers

Employers with between 5 and 99 employees must provide employees with at least 40 hours of paid sick leave each year.

“Large” Employers

Employers with 100+ employees must provide employees with at least 56 hours of paid leave each year.

Sick Leave Accrual

Employees are eligible to accrue sick leave at a rate of not less than 1 hour per 30 hours worked. Employees begin accruing Sick Leave on September 30, 2020, or upon hire after that.

Employers can provide all of the leave at the beginning of the year if they prefer.

When Can Employees Take New York Paid Sick Leave?

Eligible employees may take accrued sick leave for any of these reasons:

Mental or physical illness, injury, or health condition of either an employee or an employee’s family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time employee requests leave.
Diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of, or need for medical diagnosis of, or preventative care for either the employee or an employee’s family member.
Absences related to domestic violence, as described below.

Absences Related to Domestic Violence

If an employee or an employee’s family member is a victim of either domestic violence, a family offense, sexual offense, stalking, or human trafficking, the employee may use available New York sick leave for time off to:

Obtain services from a domestic violence shelter, rape crisis center, or other services program;
Participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or their family members;
Meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding;
File a complaint or domestic incident report with law enforcement;
Meet with the district attorney’s office;
Enroll children in a new school; or
Take any other actions necessary to ensure the health or safety of the employee or a family member or to protect those who associate or work with the employee.

Covered Family Members

Employers must use the following definitions to determine an employee’s eligibility for New York paid sick leave.

“Family Member” includes the employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent. It also includes a child or parent of an employee’s spouse or domestic partner.

“Parent” means a biological, foster, step- or adoptive parent, or a legal guardian of an employee, or a person who stood in a legal parental role when the employee was a minor.

“Child” means the biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.

Calculating the Number of Employees to Determine Leave Allowance

The law instructs employers to use the number of employees who are employed by the company in the calendar year between January 1 and December 31 to determine how much leave they must provide to employees. This calculation is likely to confuse employers because total headcount typically varies throughout any one calendar year due to business needs, employer terminations, and voluntary resignations. Therefore, we anticipate that Department of Labor regulations will later clarify how an employer should calculate its size.

Employers may provide employees with additional sick leave beyond what the law requires.

Confidentiality Requirements

Employers must keep information about employees’ health and incidents of domestic violence, sexual offense, stalking, or human trafficking confidential. The New York paid sick leave law prohibits employers from requiring employees to disclose such confidential information in order to take accrued sick leave.

Sick Leave Increments and Carryover

Employers can require employees to take sick leave in reasonable increments. The minimum increment may not exceed 4 hours. Sick leave must be paid at either the employee’s regular rate of pay. (Or at minimum wage, if their regular pay rate is somehow lower.)

Accrued and unused sick leave may be carried over to the following year. An employer with less than 100 employees can restrict the use of accrued sick leave to a maximum of 40 hours per calendar year. Employers with 100 or more employees may have a policy that restricts the use of accrued sick leave to a maximum of 56 hours per calendar year.

Employers are not required to pay out accrued and unused sick leave upon termination of employment. However, they must notify employees if they do not plan to pay out unused leave.

Returning to Work

Employees have a right to return to the same position with equal compensation after sick leave. Employers may not retaliate against an employee for requesting or using accrued sick leave. Retaliation includes discharging, threatening, penalizing, or discriminating against an employee for exercising their rights under the law.

Recordkeeping

The law requires New York employers to keep payroll records documenting the amount of sick leave provided to each employee for a minimum of 6 years.

Upon request from an employee, an employer must give a summary of all used and accrued sick leave for the current and any previous years. Employers have 3 days to comply with such requests.

Employer Alternatives to Mandatory Sick Leave

Employers can satisfy the New York paid sick leave requirements through an alternative leave policy. However, the policy must offer at least as many hours and as beneficial of an accrual rate and carryover rules as the law requires. And employees must be able to use the leave for all of the reasons allowable under the law.

Employers with unions can negotiate alternatives to the New York paid sick leave requirements. The agreement must have been entered on or after September 30, 2020, and provide “a comparable benefit.” It also must specifically “acknowledge” the New York paid sick leave law.

Existing Sick Leave Requirements

The state law specifically allows that New York City may continue to enforce its existing sick leave law or amend it. But the NYC law must meet or exceed the New York paid sick leave law’s requirements.

The same provision says that “any paid sick leave benefits provided by a sick leave program enforced by a municipal corporation in effect as of the effective date of this section shall not be diminished or limited as a result of the enactment” of the New York paid sick leave law. This language seems to refer to local laws outside of New York City, such as the Westchester County paid sick leave law. But the language is somewhat ambiguous. It will be important to see how the Department of Labor clarifies the provision through its anticipated regulations.

Anticipated Regulatory Guidance

The Commissioner of Labor can adopt regulations for the enforcement of this new sick leave law. It is almost certain that regulations will be issued before the law’s September 30, 2020 effective date. Employers will need to rely on such guidance in reviewing their existing policies for compliance or to create new sick leave programs.

Get Ready To Comply

For now, employers should begin reviewing their current leave policies. One option will be to plan to transition to a paid-time-off policy that combines sick leave, vacation, and any other paid leave. This approach will be the easiest way for many employers to comply with the law while limiting the cost of additional paid leave.

However, employers should not expect to finalize their policies until the Department of Labor issues its regulations. These will likely answer many pertinent questions that will help determine the right approach for your organization.

These new sick leave requirements may prove particularly problematic for employers with existing collective bargaining agreements. They may need to either provide additional sick leave per the law on top of existing benefits or seek renegotiation of existing policies as soon as possible for a new agreement to take effect no earlier than September 30, 2020.

For more updates on the New York Paid Sick Leave law and other legal developments of interest to New York employers, subscribe to receive our email newsletter and follow Horton Law on LinkedIn.