Tag: new york paid family leave

December 12, 2022

New York Expressly Forbids Retaliation for Lawful Absences from Work

On November 21, 2022, Governor Hochul signed an amendment to the New York Labor Law to enhance employee protections against retaliation. The amendment adds an express prohibition of retaliation for any lawful absences from work. The amendment takes effect on February 19, 2023.

New York Labor Law Section 215

Section 215 of the New York Labor Law generally prohibits private (non-governmental) employers from discriminating against employees for engaging in a wide array of protected activities. Before this amendment, these protected activities included:

Making a complaint that the employee’s employer has engaged in conduct that the employee reasonably and in good faith believes violates any provision of the Labor Law or order of the Commissioner of Labor;
Being perceived by the employer as having made such a complaint;
Instituting a proceeding under or related to the Labor Law;
Providing information to the Department of Labor or the Attorney General;
Testifying in an investigation or proceeding under the Labor Law;
Exercising other rights protected by the Labor Law;
Being the subject of an adverse determination from the Commissioner of Labor against one’s employer.

Employees may file retaliation claims in court or with the Commissioner of Labor. Penalties can include repayment of lost wages; liquidated damages; and civil penalties of $1,000 to $10,000 for the first offense and up to $20,000 for the second offense. Violation of Section 215 also constitutes a class B misdemeanor.

Amendment Addressing Lawful Absences

The amendment expands the definition of protected activity to prohibit retaliation because an “employee has used any legally protected absence pursuant to federal local, or state law.”

Unfortunately, this new language is vague. If read broadly, as the Legislature likely intended, it will encompass numerous paid and unpaid leave laws, including:

New York Paid Sick Leave
New York Paid Family Leave
New York Paid COVID-19 Leave
New York Paid Vaccine Leave
Family and Medical Leave
Other specific New York Leaves, such as:
- Blood Donation Leave
- Bone Marrow Donation Leave
- Military Spouse Leave
- Witness and Victims of Crime Leave
- Volunteer Emergency Response Leave
- Jury Leave
- Voting Leave

Employees are also often allowed time off while receiving workers’ compensation or disability benefits or as an accommodation under the Americans with Disabilities Act and New York Human Rights Law. None of these legal authorities specifically grants employees time off from work. However, it is plausible that Labor Law Section 215 will be interpreted to include leaves under these circumstances.

No-Fault Attendance Policies

Many employers apply attendance policies that allocate points on an employee’s record for each absence. Commonly, these policies apply regardless of the purpose or reason for the absence. Such policies are known as “no-fault” attendance policies. Whether the reason for the absence matters or not, point-based policies result in pre-specified employment consequences when employees reach certain levels.

The amendment to Labor Law Section 215 adds a specific prohibition against “assessing any demerit, occurrence, any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action, which may include but not be limited to failure to receive a promotion or loss of pay.”

Practical Impact

It is arguable whether this amendment really expands worker protections. Generally speaking, various laws would likely already prohibit adverse employment action against employees for taking lawful absences from work. Section 215 itself probably already would have applied in many such situations.

But the Legislature at least intends to shed light on the subject and potentially increase available penalties. Accordingly, New York employers should review existing policies and practices regarding their handling of lawful absences by employees. Moreover, managers must understand the types of absences that may be protected under applicable laws.

For more employment law updates, sign up for the Horton Law email newsletter and follow us on LinkedIn.

March 19, 2020

New York State Creates COVID-19 Quarantine Leave for Employees

On March 18, 2020, New York enacted a new law providing job-protected leave and compensation to any employee in New York State who is under a precautionary or mandatory order of quarantine or isolation due to COVID-19. The law provides varying benefits based on several characteristics of the employer.

In addition to the statutory terms discussed below, the law requires various State agencies to issue interpretative regulations by June 1, 2020. The law, however, took effect immediately.

Private (Non-Government) Employers

“Small” Employers

Private employers with less than 10 employees as of January 1, 2020, and income less than $1 million in the previous tax year must provide unpaid sick leave to any employee who is placed under a precautionary or mandatory order of quarantine or isolation due to COVID-19 through the duration of the order. Employers must continue to provide such employees and any other benefit that the employee has a right to under any law.

These employees are entitled to receive compensation for the duration of the leave through the New York paid family leave and disability benefits programs.

“Medium” Employers

A middle category of benefits applies to employees of employers with:

less than 10 employees who had a net income greater than $1 million in the previous tax year; and
between 11 and 99 employees.

These employers must provide at least 5 days of paid leave to employees under COVID-19 quarantine or isolation. They must also allow unpaid leave for the remainder of the quarantine or isolation period.

After the 5 days of paid leave, such employees will be eligible for paid family leave and disability benefits.

“Large” Employers

Employers with one hundred or more employees must provide at least 14 days of paid sick leave to any employee under COVID-19 quarantine or isolation.

The statute does not state that these employees can receive additional unpaid leave or paid family leave and disability benefits. That might be based on the assumption that quarantine usually wouldn’t last beyond 14 days. Or perhaps, the omission could be inadvertent and may be corrected through an amendment upon discovery by the State.

Public Employers

Public employers (i.e., all state and local government entities) must provide any employee or officer under a mandatory or precautionary order of quarantine or isolation with 14 days of paid sick leave.

The statute clarifies that such public employees must receive compensation at their “regular rate of pay” for “regular work hours” they miss due to the quarantine or isolation order. There is no specific clarification of the compensation rate for private-sector employees.

Additional Conditions for Quarantine Leave

Qualifying Quarantine/Isolation Order

To qualify for leave the employee’s order of precautionary or mandatory quarantine or isolation for COVID-19 must be issued by the State of New York, the NYS Department of Health, a local board of health, or any government entity duly authorized to issue such an order.

However, the law clarifies that this law does not apply to an employee who meets both of the following conditions:

has been deemed asymptomatic or has not yet been diagnosed with any medical condition; and
is physically able to work while under a mandatory or precautionary order of quarantine or isolation, whether through remote access or other similar means.

Job Restoration

Employers must restore any employee who returns to work from COVID-19 quarantine leave to the position the employee held before taking the leave. The employee must receive the same pay and other terms and conditions of employment.

The law prohibits discrimination and retaliation against employees for taking this leave.

Conversely, the law does not bar employers from taking personnel actions unrelated to “any request to use, or utilization of, any leave provided by this act.” Presumably, this acknowledges that employers may discipline or even layoff or discharge employees due to performance, misconduct, or economic factors.

Impact on Other Sick Leave

Any employee who qualifies for leave under this law may take it without losing any other accrued sick leave.

Disqualifying Travel

Any employee who (other than for work or at the direction of their employer) traveled to a country subject to a Level 2 or Level 3 travel health notice from the Center for Disease Control and Prevention, despite receiving such notice, is not eligible to receive paid sick leave during the period of quarantine or isolation. Such employees still may use any other accrued paid sick leave and remain entitled to unpaid leave for the duration of the quarantine or isolation.

Employee Eligibility for Insurance Benefits

New York State Disability Benefits

The new law amends, for limited purposes, the definition of “disability” under the New York State Disability Benefits Law to mean:

any inability of an employee to perform the regular duties of his or her employment or the duties of any other employment which his or her employer may offer him or her as a result of a mandatory or precautionary order of quarantine or isolation issued by the state, the department of health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19 and when the employee has exhausted all paid sick leave provided by the employee’s employer” under the COVID-19 quarantine leave law.

For employees with such a disability, the law waives the standard 5-day waiting period before receiving disability benefits. This waiver allows qualifying employees to begin receiving disability benefits starting the first full workday that they miss due to COVID-19 quarantine or isolation.

The law seems to increase substantially the dollar amount of disability benefits potentially available for employees missing work for this purpose. Usually capped at $170 per week, disability benefits for qualifying employees on COVID-19 quarantine leave will be equal to the difference between the maximum family leave benefit and the employee’s average weekly wage, up to a maximum of $2,043.92.

New York State Paid Family Leave

The COVID-19 quarantine leave law also amends, for limited purposes, the definition of “family leave” under the New York State Paid Family Leave Benefits Law to mean:

(a) any leave taken by an employee from work when an employee is subject to a mandatory or precautionary order of quarantine or isolation issued by the state, the department of health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19; or

(b) to provide care for a minor dependent child of the employee who is subject to a mandatory or precautionary order of quarantine or isolation issued by the state, the department of health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19.

Notably, part (a) of this revised definition provides for “family leave” in the case of the employee’s own quarantine or isolation due to COVID-19. This addition is a significant departure from the existing NYS paid family leave provisions, which only apply to particular circumstances unrelated to the employee’s own medical condition.

Simultaneous Benefits

The above all now means that an employee under quarantine or isolation for COVID-19 can receive both disability benefits and paid family leave benefits at the same time.

However, the law caps these benefits for employees under quarantine or isolation at no more than $840.70 in paid family leave benefits and $2,043.92 in disability benefits. An employee’s average weekly wage would have to be at least $2,884.62, or $150,000 annually, to reach the cap.

Ironically, it seems that perhaps employees making less than about $1,400 per week would end up with less than full wage replacement. That is because the law determines the amount of disability benefits based on the “maximum weekly family leave benefit,” which arguably is the maximum for any employee (currently $840.70), rather than the lower amount that the employee in question would receive in paid family leave benefits. It’s uncertain whether the State intended this discrepancy. It is possible that they might seek to “clarify” the calculation by an amendment or further regulatory action.

Interaction with Other Laws

This New York State measure addresses possible overlap with federal law. Indeed, within hours of Governor Cuomo signing this act, President Trump signed a bill from Congress that also provides for up to two weeks of paid sick leave related to COVID-19. The federal law would apply to some of the same employees and employers as the State law, does but there are differences in coverage.

The New York law indicates that its benefits (whether through paid sick leave, paid family leave, or disability benefits) are not available to the extent the employee otherwise receives compensation under the federal law. However, where the State law provides more generous benefits than the federal law, the employee is eligible to receive the difference in benefits to supplement what the federal law requires.

Our full summary of paid sick leave and paid FMLA requirements under the Families First Coronavirus Response Act is available here.

Penalties

The New York law does not contain any express penalties for non-compliance. However, existing penalty provisions under the New York Disability Benefits Law and New York Paid Family Leave Benefits Law would likely apply to relevant portions. Moreover, failure to pay the new sick leave benefits might constitute a failure to pay wages subject to stiff penalties under the New York Labor Law.

What Employers Must Do

Asking employers to comply with this new law, especially when coupled with new federal requirements and during an unprecedented national health crisis, is no small request by the State. The provisions are quite complex, including peculiar implications under existing insurance policies. But the law is now in effect and should be taken seriously. Ideally, this would include updating applicable policies, such as your paid family leave policy, which all New York employers must have in writing. We strongly encourage you to consult with experienced employment attorneys in attempting to apply this new array of leave benefits to your workplace.

To receive our continuing updates on the coronavirus and other topics of interest to employers, follow us on LinkedIn.

January 3, 2018

New York Employment Law by the Numbers

In an earlier post I listed some of the most important numbers pertaining to federal (U.S.) labor and employment laws. This time we’ll look at the numbers that stand out specifically for New York employment law compliance.

[Go ahead and sign up for my monthly newsletter to make sure you receive additional updates, best practices, and other critical information regarding New York employment law.]

1 – Employee threshold for many employment laws

As with federal laws, many aspects of New York employment law apply to employers with as few as one employee. This includes State minimum wage/overtime, wage payment, worker’s compensation, disability benefits, paid family leave, and sexual harassment laws.

4 – New York Human Rights Law prohibits discrimination

New York employees of employers with at least 4 employees are protected by New York’s employment discrimination laws. This is a much lower coverage threshold than similar federal laws. They typically don’t apply until an employer has at least 15 or more employees. The New York Human Rights Law prohibits discrimination on the basis of age, sex, sexual orientation, religion, race, national origin, disability, and predisposing genetic characteristics. It also protects employees from discrimination based on familial status, marital status, military status, and domestic violence victim status.

Note: The New York Human Rights Law prohibits all employers, with a few as one employee, from engaging in sexual harassment.

6 – Statute of limitations for wage claims, in years

New York employees can file claims for unpaid or underpaid wages going back as far as six years. This is much longer than the 2- (sometimes 3-) year statute of limitations under the federal Fair Labor Standards Act.

8* – Annual New York Paid Family Leave allowance, in weeks

In 2018, eligible employees may take up to 8 weeks of leave under the New York Paid Family Leave Program. In 2019 the maximum leave period increases to 10 weeks. It increases again in 2021, to 12 weeks.

$10.40 – Minimum wage for Upstate employees

New York’s minimum wage requirements depend on geographic location and employer size. On December 31, 2017, the base minimum wage for all employees outside of New York City and Nassau, Suffolk, and Westchester Counties increased to $10.40 per hour.

Click here for more details, with charts, about current and future minimum wages throughout New York State.

18 – Age at which New York Human Rights Law begins to prohibit age discrimination

Unlike the federal Age Discrimination in Employment Act (ADEA), New York’s employment discrimination law prohibits age discrimination against employees in both directions. The ADEA only protects employees 40 years old or older from suffering adverse employment actions because they are too old. However, the New York Human Rights Law allows employees 18 or older to claim discrimination either because they are too old or too young.

20 – Weekly hours parameter for New York Paid Family Leave

An employee’s eligibility for New York Paid Family Leave depends on how many hours they are regularly schedule to work in a week. Employees regularly scheduled to work at least 20 hours per week become eligible once they have worked for their employer for 26 consecutive weeks. Employees regularly scheduled to work less than 20 hours per week become eligible once they have worked on 175 days for the employer.

25 – New York WARN notice triggering events

The New York State Workforce Adjustment Retraining Notification Act (WARN) requires employers to give written notice before mass layoffs, plant closings, and relocations that will cause employment loss for at least 25 employees, sometimes more.

30 – Minimum length of meal period for most employees, in minutes

New York labor law requires that all employees who work at least 6 hours in a shift (sometimes less) be off duty for a meal period of at least 30 minutes. Additional time may be required in some cases.

For more details, see Got Lunch? A Primer on the New York Meal Period Requirements.

50 – New York WARN covered employer

Non-governmental employers with 50 or more employees within New York State are potentially subject to New York WARN notice obligations.

90 – Days in advance New York WARN notices must be issued

This is longer than the federal WARN Act’s 60-day notice period. The employer must notify affected employees (and their unions, if applicable) and certain government officials. There are exceptions to the notice obligation. If circumstances require the employer to act suddenly, the employer usually must give as much notice as possible.

$780 – Required weekly salary for some New York overtime exemptions (Upstate)

New York’s administrative and professional exemptions from the State’s minimum wage and overtime rules require that employees receive a minimum weekly salary. As with the minimum wage, the salary requirement depends on location within the State and size of the employer. As of December 31, 2017, the minimum salary for these exemption (outside of NYC, Nassau, Suffolk, and Westchester) is $780 per week.

Click here for more details, with charts, about current and future salary requirements throughout New York State.

New York Employment Law Is Complex

These numbers only help demonstrate some of the compliance obstacles New York employers face. And, unfortunately, New York employment law changes frequently. Plus, many New York employers must also satisfy a maze of federal employment laws at the same time.

One great way to keep on best practices and developments regarding New York employment law is through my monthly newsletter. It’s easy to sign up for it here!