Category: Safety & Health

September 30, 2024

New York Retail Worker Safety Act Enacted

On September 5, 2024, Governor Kathy Hochul signed the New York Retail Worker Safety Act into law. The law introduces comprehensive measures aimed at reducing workplace violence in retail settings. Depending on the size of their workforce, employers in the retail industry will need to implement specific measures to comply with the new law.

Covered Employers

The New York Retail Worker Safety Act applies to any non-governmental employer with at least 10 retail employees.

A retail employee is someone who works in a store that sells consumer commodities at retail. Stores that are primarily engaged in the sale of food for consumption on the premises do not qualify.

Key Requirements of the New York Retail Worker Safety Act

The new law includes policy and training requirements for all covered retail employers in New York. Large employers must also implement silent response buttons.

Workplace Violence Prevention Policy

All covered employers must establish a comprehensive workplace violence prevention policy that identifies potential risks and outlines strategies to mitigate them. Employees must receive a copy of the policy at the time of hire and at every required workplace violence prevention training. The New York State Department of Labor (NYS DOL) will create a model workplace violence prevention policy to guide employers. Employers should use the templates as models for compliance.

Written Notice Requirement

Employers must provide their employees with written notice of the workplace violence prevention policy both when they are hired and during each training session.

Training Requirements

The law introduces mandatory training for all retail employees, with specific training timelines depending on the size of the employer.

- Employers with 50 or More Retail Employees must provide workplace violence prevention training to all employees upon hire and then annually.
- Employers with 10-49 Retail Employees must also provide workplace violence prevention training. But it only needs to be conducted upon hire and once every two years, instead of annually.

This training must be interactive and address a variety of safety topics critical to retail environments. It must include the following elements:

Information on the requirements of the New York Retail Worker Safety Act.
Examples of how employees can protect themselves in the event of workplace violence from customers or coworkers.
De-escalation techniques to manage and reduce potentially violent situations.
Active shooter drills to prepare for extreme scenarios.
Emergency procedures that are specific to the retail environment.
Instruction on the use of security alarms, silent response buttons, and other emergency devices.
Training on supervisors’ additional responsibilities, including overseeing workplace-specific emergency procedures.
Education on areas where there have been previous security incidents.

The NYS DOL is tasked with developing a model training program that employers can reference or adopt. This should help streamline compliance for employers by providing them with a ready-made framework for training their workforce. However, employers may create their own training program as long as it meets DOL standards.

The policy, training, and notice requirements take effect June 2, 2025.

Silent Response Button Requirement

Beginning January 1, 2027, employers with 500 or more retail employees statewide must provide a silent response button (or panic button) to all retail employees. These buttons allow employees to discreetly alert local authorities in the event of an emergency, such as violent incidents involving customers or coworkers.

Key Changes from the Original New York Worker Safety Bill

Upon her signing, Governor Hochul and the Legislature reached an agreement to modify the following aspects of the Act. These changes are expected to be included in a forthcoming amendment that should be in place before the law otherwise takes effect.

In-Store Emergency Notification Mechanism (Silent Response Button)
The original bill required employers with 500 or more employees nationwide to provide panic buttons. The final version of the law now applies this requirement only to employers with 500 or more employees in New York State.
Training Frequency for Smaller Employers
In the original bill, all employers had to provide annual training. This timing will change, allowing employers with 10-49 retail employees to provide training every two years, instead of annually. This modification somewhat reduces the administrative burden for smaller businesses.

Looking Ahead

With the New York Retail Worker Safety Act now law, retail employers should begin reviewing their existing safety protocols and prepare for the upcoming deadlines. Employers with 10 or more retail employees should be ready to adopt workplace violence prevention policies and training programs by June 2, 2025. Those with 500 or more employees should also begin planning for the installation of silent response buttons before the January 1, 2027 deadline.

However, employers will likely need to wait until the NYS DOL issues the model templates for both workplace violence prevention policies and the training programs. Those templates will likely further establish the required (or at least recommended) elements of compliance with the law.

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June 21, 2024

First Look: New York Retail Worker Safety Act

The New York Retail Worker Safety Act has recently been passed by the state Senate and Assembly. If signed by the Governor, the legislation will impose new requirements on the retail industry. It’s crucial for potentially subject employers to understand the implications of this legislation and prepare for the upcoming changes.

Overview of the Act

The Retail Worker Safety Act mandates several measures aimed at preventing workplace violence in retail settings. Here are the key components:

Workplace Violence Prevention Policy: Retail employers must develop and implement comprehensive workplace violence prevention policies. The policies must identify potential risk factors and outline methods to mitigate these risks. The New York State Department of Labor is tasked with creating a model policy to guide employers.
Employee Training: Employers are required to provide annual safety training for their employees. This training must be interactive and cover de-escalation tactics, active shooter drills, and emergency procedures, among other topics.
Panic Buttons: One of the most debated requirements is the installation of panic buttons. Employers with 500 or more employees nationwide must provide access to panic buttons that, when activated, immediately notify local law enforcement. This measure aims to provide rapid response during violent incidents.

Covered Employers

The New York Retail Worker Safety Act applies to any employer with at least 10 retail store employees. A “retail store” is defined as “a store that sells consumer commodities at retail and which is not primarily engaged in the sale of food for consumption on the premises.”

Thus, a wide range of retail businesses, from small shops to large chain stores, must adhere to the new safety regulations. However, public (i.e., governmental) employers are not covered.

Employer Concerns and Compliance

Many employers have expressed concerns about the additional costs and administrative burden associated with complying with the new requirements. Installing panic buttons, providing extensive training, and documenting incidents comprehensively are potentially costly measures, especially for smaller businesses.

However, proponents of the bill argue that the benefits of increased safety and the potential reduction in violent incidents outweigh these costs. They highlight the rising number of workplace violence incidents and the need for stronger protective measures for retail workers.

Looking Ahead

The Retail Worker Safety Act is currently awaiting Governor Kathy Hochul’s signature. If signed, the Act will take effect 180 days later. So, employers will have a limited timeframe to comply with the new requirements. (If enacted, panic buttons will not become mandatory until January 1, 2027.)

Retail employers should start reviewing their current workplace safety policies and planning for the implementation of these new requirements. Engaging with legal and safety experts can help create a compliant and effective workplace violence prevention program.

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January 9, 2022

Final NYS Sick Leave Rules Remain Unchanged, Yet Offer New Guidance

On December 22, 2021, the New York State Department of Labor adopted final regulations regarding the New York State Paid Sick Leave Law. The DOL adopted the rules as originally proposed on December 9, 2020, with no changes. However, in giving notice of the final adoption of the NYS sick leave rules, the DOL responded to many comments it had received on the proposed rules.

While still leaving many concerns unresolved, the DOL has provided some additional guidance to employers. Here’s a look at several key issues the DOL reviewed.

Carry Over

The New York Paid Sick Leave Law provides that employees can carry over unused sick leave from one year to the next. But it also permits employers to limit their employees’ use of sick leave to the statutory level (40 or 56 hours based on employer size) each year. Consequently, many employees will accrue sick leave that they’d never be eligible to use.

Especially where employers frontload sick leave meeting or exceeding the annual statutory requirement, the carryover requirement is at least a pointless administrative hassle. But it creates more tangible trouble in some cases, including situations where employers include sick leave with other forms of paid leave. This leave aggregation is permissible under the sick leave law. However, the law then seemingly requires that all such paid leave time must be carried over from year to year if unused, even where, as is often the case, the annual paid time off allowance exceeds the statutory sick leave mandate.

The DOL responded directly to three related carry-over questions. Unfortunately, their responses don’t offer much relief to employers struggling with the administrative or substantive mischief the carry-over conundrum can create. The DOL went further to emphasize the significance of the statutory carryover provision: “While the Department understands there may be occasional conflicts between an employer’s existing leave policies and the statute, the statute permits such alternative compliance so long as the standards set in the accrual, use, and carryover provisions are met”. Ironically, the DOL otherwise notes the potential benefits of frontloading sick leave “to avoid added complexity” in calculating leave accrual.

The DOL has found room to allow employers the option to let employees cash out some of their unused sick leave at the end of the year rather than carry it over to the next year.

Employee Rights

The DOL responded to two suggestions under this heading. One seemingly sought to restrict employee rights to use sick time. Another sought to expand on employee protections.

One commenter wanted to prevent new employees from using sick leave immediately upon accrual, fearing the risk of sick leave abuse. The DOL indicated that the law would not permit such a limitation.

Another commenter wanted the rules to include information on employees’ ability to file complaints and be free from retaliation for exercising their rights to use sick leave. The DOL noted that such provisions are already otherwise established by law.

In response to another comment (listed under “Other Leave Usage”), the DOL offered the general assertion that “The Department declines to opine on any potential conflict with existing state or federal statutes, apart from asserting that none are believed to exist.”

Collective Bargaining Agreements

The DOL made one response to comments on the NYS sick leave rules specifically addressing unionized workplaces. The DOL dismissed all comments seeking specific direction related to collective bargaining agreements because “These comments are outside the scope of this rulemaking, which does not directly address CBAs.” Not particularly helpful.

Employee Count

On the other hand, while finding the issue not to be “addressed in this rulemaking,” the DOL nonetheless offered its interpretation that employer coverage under the NYS Paid Sick Leave Law is based on their total U.S. employee count. In other words, not only employees working in New York.

The DOL offered no revision in response to comments on the rule requiring employers to count the highest number of concurrently employed employees. However, it indicated that it “may provide additional guidance for clarity as necessary.”

The DOL declined to address joint employer situations. Instead, it deferred to “existing and settled law.”

Documentation and Attestations

In response to commenters’ suggestions, the DOL indicated it will produce a template for employee attestations.

The agency also warns employers to be cautious when questioning sick leave usage: “An employer may not deny an employee leave while attempting to confirm the basis for the leave. If, however, the employer discovers the request to be false or fraudulent, disciplinary action may be taken against the employee”. The DOL goes on to warn of potential retaliation claims for improperly denying leave or disciplining employees who take it. There is also clarification that even when an employer fears abuse, it may not require documentation for leave less than three days.

The DOL also “declines to create a separate notice requirement for foreseeable leave.”

Notice to Employees

Commenters suggested that the DOL’s NYS sick leave rules include a requirement that employers provide notice of the law’s requirements to employees. The DOL declined to impose such an obligation on employers.

Payment Issues

In response to a comment for clarification of when employers must pay for used sick leave, the DOL confirmed that failing to pay sick leave is “equivalent to a failure to pay employee wages.”

The DOL likewise declined to amend the NYS sick leave rules to define the regular rate of pay. Instead, it offered that “Methods for determining the employee’s regular rate of pay already exists within the Labor Law, the regulations of the Department of Labor, relevant case law, and guidance.”

Overall Message to Employers

Not so subtly, the DOL’s commentary on the adoption of the NYS sick leave rules conveys a refusal to revisit the subject meaningfully. Among other assertions, the DOL dismissively asserts, “The current guidance and FAQs are sufficient in the areas referenced [by commenters] and as such topics are outside of the scope of the rule, no further response is appropriate.” It is disappointing that the DOL chooses to knowingly leave its guidance out of formal rulemaking in favor of addressing it in casual documents with significantly less legal weight. As such, employers are left with various compliance dilemmas in addition to the underlying cost of providing paid leave. It’s even more frustrating that the law complicates leave policies for employers who were already offering more paid time off than the law requires.

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