On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (the “Act”) into law. The Act mandates that employers provide 100% of an eligible employee’s cost of continuing group health coverage under Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for the period of April 1, 2021 through September 30, 2021. Employers that pay such COBRA continuation coverage will receive tax credits from the federal government. On April 7, 2021, the U.S. Department of Labor (“DOL”) published guidance and model notices for the COBRA continuation coverage (available at Department of Labor Laws and Regulations COBRA).

What employers are required to offer COBRA premium assistance?

All private-sector employers or employee organizations subject to (i) COBRA rules under the Employment Retirement Income Security Act (“ERISA”) or (ii) state and local laws mandating continuation of health insurance.

According to the DOL guidance, COBRA generally applies to all private-sector group health plans that had at least 20 employees on more than 50% of its typical business days in the previous calendar year. Part-time employees count as a fraction of a full-time employee based on the number of hours worked divided by the hours an employee must work to be considered full time. DOL’s FAQ issued in December 2018 about COBRA available at Department of Labor Resource Center .

Who is eligible?

Under the Act, employees that were covered by a group health plan and have been terminated or had their hours reduced are eligible to receive the subsidy, if they elect such coverage (“Assistance Eligible Individual”). Additionally, such employee’s spouse and dependent children also qualify for coverage. Employees who voluntarily terminate employment or reduce hours are not eligible for COBRA continuation coverage. Additionally, individuals who are covered by Medicare or another group health plan, such as a plan offered by a new employer or a spouse’s employer, are not eligible. If an individual receiving COBRA continuation coverage becomes eligible for coverage under another plan, then the individual must notify the plan under which COBRA continuation coverage is being provided.

The Act allows those individuals whose COBRA election period expired before April 1, 2021, to elect for the subsidized COBRA coverage so long as they are still within the required period under the applicable COBRA provisions (typically 18 months). Therefore, if an eligible individual did not elect to receive coverage or his or her COBRA continuation coverage lapsed, then such individual is eligible to elect COBRA continuation coverage under the Act. However, the Act does not extend the COBRA continuation coverage period beyond the maximum required period.

What notices are required under the Act?

The Act requires that group health plans and issuers send the following notices:

(i) a general notice to all qualified beneficiaries who have a qualifying event (i.e. a reduction in hours or involuntary employment termination from April 1, 2021 to September 30, 2021);

(ii) a notice of the extended COBRA election period to any Assistance Eligible Individual (or any individual who would be an Assistance eligible Individual if a COBRA continuation coverage were in effect) who had a qualifying event before April 1, 2021, as long as their maximum COBRA continuation coverage period would not have ended before April 1, 2021; and

(iii) a notice of expiration of periods of premium assistance between 15 – 45 days prior to the individual’s premium assistance period expiration date.

The notice of extended COBRA election must be provided by May 31, 2021. Visit Department of Labor Laws and Regulations Extended COBRA Elections for model notices provided by the DOL.

 

 

 

 

 

New York State Labor Law §  27-C (“Emergency Preparedness Law”) required that by April 1st all public employers adopt operational plans for public health emergencies (the “Emergency Operations Plans”) to adequately protect workers in the event of another state disaster emergency involving a communicable disease. Public employers that have not yet adopted an Emergency Operations Plan could be subject to New York State Department of Labor (NYSDOL) enforcement procedures.

Who qualifies as a “Public Employer”?

Labor Law §  27-C(1) considers all state, county, and local governments, public authorities (bridge, water, airport, etc.), commissions, public corporations, agencies and school districts as “public employers.”  With respect to school districts, the requirement to establish and enact Emergency Operations Plans has been codified into state education law for inclusion in school safety plans.

What should Emergency Operations Plans address?

Emergency Operations Plans should include and address the following main points:

  • A list and description of positions considered essential;
  • Protocols for non-essential employees to follow to work remotely;
  • A description of how staggered work shifts would be implemented;
  • Policy on leave in the event employees require testing, treatment, quarantine, etc.;
  • Protocols to document specific hours and work locations including off-site visits for essential employees and contractors;
  • The process for procurement and distribution of personal protective equipment (PPE) for employees, as well as a PPE storage plan aimed at preventing degradation, and permitting immediate access in the event of emergency;
  • Process outlining what to do when an employee is exposed to the communicable disease;
  • Protocols on emergency housing for essential employees impacted by the disease subject of the public health emergency; and
  • Any other requirement determined by the New York State Department of Health, such as testing and contact tracing protocols.

For full details, see Labor Law § 27-C(3).

Should Emergency Operations Plans be Published or Circulated?

Under Labor Law § 27-C(4) public employers shall publish final Emergency Operations Plans: (i) in a clear and conspicuous location on-site; (ii) in the employee handbook, to the extent that the employer provides such handbook to its employees; and (iii) on the public employer’s website or on the internet accessible to employees.

What if we haven’t adopted an Emergency Operations Plan?

The NYSDOL has established a website with sample templates for State Agencies and Authorities and Local Jurisdictions, as well as a checklist for completion of Emergency Operations Plans.  These templates may be used by public employers to complete Emergency Operations Plans.

In addition, Labor Law § 27-C(5) permits the NYSDOL to establish procedures to allow for public employees and contractors to contact and inform them of any alleged violations.  A website has been established for public employees to file complaints against public employers for alleged violations of the Emergency Preparedness Law (e.g. failure to adopt one). Such reports may be made anonymously.

A public employer that is found to have violated the Emergency Preparedness Law may be subject to the enforcement procedures set forth in Labor Law § 27-a(6), including civil penalties.

Should you have questions or inquiries regarding Emergency Operations Plans, please contact Simone M. Freeman in our Municipal Law Group at 516-746-8000 or sfreeman@jaspanllp.com.

Governor Cuomo recently announced the launch of the Excelsior Pass, a free, voluntary way to share your COVID-19 vaccination or negative test results. The hope is that such a Pass, colloquially referred to as a “vaccine passport”, will reduce the spread of COVID-19 as businesses across the State continue to reopen. Although businesses cannot require the Excelsior Pass per se, they are permitted to require some proof of a vaccine or negative testing before entry. Whether the Pass will become a widespread and effective tool for doing so remains to be seen.

What is the Excelsior Pass?

The Excelsior Pass is essentially your own personal QR code, which is generated via an App downloaded to your smartphone. Consumers download the Excelsior App itself, while businesses download the corresponding “Scanner” App, both of which are available at the Apple store and through Google Play. After downloading the Scanner App, the business is required to register by providing its name, industry and the zip code where it will be validating Passes. Likewise, a consumer will be asked to provide their name, your date of birth, zip code, vaccination or test location, vaccination type or test type, and vaccination or test date. The QR code appears on the screen of the smartphone and can be stored in a virtual “Wallet, “much like electronic airline boarding passes. But it may also be printed to paper.

Those who want an Excelsior Pass will qualify if they:

  • have not tested positive for COVID-19 in the last 10 days;
  • have been fully vaccinated in the State of New York and it has been 14 days or longer since their final shot;
  • had a negative result from a PCR test in New York in the last 3 days; or
  • had an antigen test administered in the State of New York in the last six hours and the result was negative.

Accordingly, there are three types of Passes:

  • COVID-19 Vaccination Pass (valid for 180 days after the Pass is retrieved, at which time a new Pass may be retrieved);
  • COVID-19 PCR Test Pass (valid until midnight on the third day after a test); and
  • COVID-19 Antigen Test Pass (valid for 6 hours from the time of a test)

How Do You Know the Person Matches the Phone?

If the Pass scans as valid, the individual is required to verify identification by matching the name and birth date on the Pass to a photo ID. In accordance with State reopening guidelines, if no photo ID is available or the Pass does not match a photo ID, entry should be denied.

Does the Excelsior Pass Do Away with CDC Requirements?

The answer is a resounding “No.” The government website asks business to remind consumers to follow State and CDC guidance regarding social distancing, face coverings, and hygiene even after admittance via the Pass.

What If an Excelsior Pass is Invalid or if a Consumer Lacks ID?

If the Pass you scan is invalid, the government advises the business representative to “share with the Pass holder the reason for which the Pass is invalid, as it appears within the [App].” In such instances, an alternative form of proof of vaccination or testing would also be acceptable. However, if identity verification is not possible, entry should be denied. I

Is the Data Really Secure?

The Excelsior Pass is touted as a secure way to maintain COVID-related and other personal information. The State says that secure technologies like blockchain and encryption, are woven throughout. Other than that, however, it’s not readily apparent how the data is tracked or kept safe.

The State says that an individual’s data will be kept secure and confidential. While the App may be hosted by third parties working with the State, those parties are limited to use of the data for the purposes of follow-up communications and contact tracing. That being said, before you supply information via the App, you will be asked to agree to an authorization to disclose.

While there is no question that New York businesses can use every tool possible to aid in reopening, the implications of a vaccine passport, let alone one that required ID verification, remain to be seen. If you have questions about the Excelsior Pass and how it may affect your business, feel free to contact Jessica Baquet at 516-746-8000 or jbaquet@jaspanllp.com.

 

Medical Marijuana

Many companies have a drug free workplace policy which is intended to ensure a safe, healthful and productive working environment.  In order to assure that employees do not violate the drug free workplace policy some companies conduct pre-employment testing, as well as periodic and random testing.  What if an employee tests positive for marijuana?

Marijuana is still considered a controlled substance under the Controlled Substances Act, Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970. However, in July 2014, New York passed the Compassionate Care Act which provides for the authorized use of marijuana for medicinal purposes by a patient who suffers from certain medical conditions[1] and who has been certified by a registered practitioner. N.Y Pub. Health Law §3360 et. seq.

A person who is a certified patient is deemed have a “disability” under New York’s Human Rights Law. N.Y Pub. Health Law §3369.  As such, it is illegal to discriminate against an employee who is a certified patient on the basis that he or she uses medical marijuana.  That does not mean that an employer may not take appropriate action when the employee’s marijuana use creates a dangerous or unhealthy work environment.  Indeed, the Act specifically provides that the non-discrimination provision in the law “shall not bar the enforcement of a policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance.” N.Y. Pub. Health Law §3369.2.  It does mean, however, that the employer must treat the employee in the same manner as it is required to treat other employees who have a disability.  This includes engaging in an interactive process with the employee and making reasonable accommodations so that the employee can perform the essential functions of his position.

A recent First Department case addressed the issue. Gordon v Consolidated Edison Inc., 190 A.D.3d 639 (1st Dep’t 2021).  In that case, the plaintiff suffered from irritable bowel disease (IBD), a condition covered by the Compassionate Care Act.  In early December she consulted a physician regarding her condition and whether medical marijuana would help with her IBD symptoms. She was told it could help. Without first being certified, she tried marijuana on her own and found that it did indeed help relieve her symptoms. The next day she contacted a physician registered with the State’s Medical Marijuana Program (“MMP”) and made an appointment for December 27th. In the meantime, on December 21st, the plaintiff was randomly selected for a drug test by her employer.

The plaintiff kept her appointment with the doctor and two days later was approved as a certified medical marijuana patient. That same day she learned that her drug test had come back positive for marijuana.  Despite now being a certified patient, her employer terminated her employment because the drug test occurred before she had been certified and because she was a probationary employee.

The Court denied the employer’s motion for summary judgment because there were issues of fact as to whether the employer had adequately engaged in the interactive process with plaintiff to determine whether it could reasonably accommodate her status as a medical marijuana patient and whether it cut the dialogue process short because she was a probationary employee.  The Court also noted that there were no allegations that the employee’s use of marijuana, either before or after certification, ever affected the quality of her work or her ability to do her job, or that she ever used marijuana in the workplace.  It also found that there were questions as to whether the employer’s reasons for termination were pretextual.

In sum, an employer must treat an employee who is a certified patient for medical marijuana use in the same manner as it would treat other disabled employees who require a reasonable accommodation to perform their jobs and may not simply terminate the employee for testing positive for marijuana.  Instead, the focus should be on whether the use of marijuana by an employee who is a certified patient creates a safety concern or negatively impacts on productivity and whether a reasonable accommodation can address the employer’s concerns.

Recreational Marijuana

On March 31, 2021, Governor Cuomo signed into law the Marijuana Regulation and Taxation Act legalizing the use of recreational marijuana.  This makes New York the 15th state to do so. Among other things, the law allows adults 21 years and older to possess up to three ounces of cannabis for recreational purposes or 24 grams of concentrated forms of the drug, such as oils. Although smoking cannabis in public will be permitted wherever smoking tobacco is allowed, smoking marijuana will still not be allowed in workplaces.

This new law will create issues with respect to drug free workplace policies. While the law does not contain a provision similar to that in the Compassionate Care Act in which a certified patient is deemed have a “disability” thereby making it illegal to discriminate against an employee who is a certified patient on the basis that he or she uses medical marijuana, the legal use of marijuana creates its own issues for an employer since an employee can test positive for marijuana days after having last used the drug.  While it is too early to know how the law will develop in this area, it is suggested that, with regard to disciplinary action against an employee who tests positive for marijuana use, that the employer’s focus should be on whether the employee is able to properly perform his job, and whether the use of marijuana negatively impacts on the quality of his work or productivity, creates a dangerous or unhealthy work environment, or raises safety concerns.  Indeed, New York Labor Law 201-d(1)(b) specifically provides in relevant part that unless otherwise provided by law, “it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of . . .  (b) an individual’s legal use of consumable products, including cannabis in accordance with state law, prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property.”

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[1]           See Pub. Health Law §3360.7(a) for a list of the serious conditions covered by the Act.

One year ago, Congress enacted the Families First Coronavirus Response Act (FFCRA). Among other things, the FFCRA created paid leave programs under the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA).  In brief, EPSLA and EFMLEA required employers with fewer than 500 employees to provide varying amounts of paid leave to employees impacted by the COVID-19 pandemic. Employers who provided paid leave in accordance with these laws were entitled to refundable tax credits to offset the cost.

Although the mandate that employers provide leave in accordance with EPSLA and EFMLEA expired at the end of 2020, Congress passed a law in December of that year providing that employers who voluntarily continued to grant their employees paid leave in accordance with EPSLA and EFMLEA could continue to claim refundable tax credits through March 31, 2021. Now, the American Rescue Plan Act of 2021 (ARPA), which was passed on March 11, 2021, has extended through September 30, 2021 an employer’s ability to claim refundable payroll tax credits for voluntarily providing leave under EPSLA and EFMLEA. The ARPA is also more robust in that it provides additional reasons for which leave can be granted and extends the duration of leave in certain instances.

Leave Under EPSLA and EFMLEA: A Refresher

Under EFMLEA, covered employers were required to grant up to twelve weeks of job-protected leave to an employee: (1) who had been on payroll for at least thirty calendar days; (2) was unable to work (or work remotely); (3) due to the need to care for a child under age 18 if school was closed or a childcare provider was unavailable; (4) as a result of an emergency declared by a federal, state or local government that is related to COVID-19.

The first ten days of leave were to be unpaid, although an employee could choose to use accrued paid time off or sick leave under EPSLA during that time. An employee entitled to EFMLEA leave would be paid two-thirds of his or her regular rate of pay for the number of hours the employee would usually be scheduled to work, up to $200 per day and $10,000 for the entire period of EFMLEA leave.

Under EPSLA, covered employers were required to provide paid sick leave to any employee who was unable to work (or work remotely) when the employee: (1) was subject to a federal, state or local quarantine or isolation order related to COVID-19; (2) had been advised by a health care provider to self-quarantine due to concerns relating to COVID-19; (3) had symptoms of COVID-19 and was seeking a diagnosis; (4) was caring for a person who was subject to a federal, state or local quarantine or isolation order related to COVID-19, or had been advised by a health care provider to self-quarantine due to concerns relating to COVID-19; (5) was caring for a son or daughter if the child’s school or place of care had been closed, or his or her child care provider was unavailable, due to COVID-19 precautions; or (6) was experiencing any other substantially similar health condition as specified by the Secretary of Health and Human Services.

EPSLA leave was available to all employees regardless of the duration of their employment. Full-time employees were entitled to up to 80 hours of paid sick leave and part-time employees were entitled to an amount of paid sick leave equal to the average number of hours that the employee works in a two-week period.

The amount to be paid under EPSLA depended on the reason for the employee’s leave. In the case of reasons (1), (2) and (3) above, the employee was to be paid at the regular rate of pay, except that paid sick time could not exceed $511 per day, and $5,110 in total. In the case of reasons (4), (5) and (6) above, the employee was paid at two-thirds of the regular rate of pay, except that paid sick time could not exceed $200 per day, and $2,000 in total.

Leave Under ARPA

Under ARPA, from April 1, 2021 through September 30, 2021, employers will be entitled to refundable tax credits for voluntarily providing leave for any of the reasons set out in EPSLA and EFMLEA, as expanded by the ARPA.

Specifically, ARPA expands the reasons for which an employee may take EPSLA leave. An employee can now take sick leave if: (1) he or she is getting tested or seeking a diagnosis for COVID-19, provided that he or she was exposed to COVID-19 or the employer requested that he or she be tested/seek a diagnosis; (2) he or she is getting vaccinated against COVID-19; or (3) he or she is recovering from an illness or condition associated with getting immunized.

ARPA also requires employers that voluntarily provide sick leave to provide eligible employees with a new bank of EPSLA leave hours. For full-time employees, this means up to eighty additional hours of paid sick leave.

Further, ARPA expands the reasons that an employee may take EFMLEA leave to include more than just the need to care for a child whose school is closed or childcare provider is unavailable. An employee may now take EFMLEA leave for any of the expanded reasons for which EPSLA leave is available.

The ARPA also eliminates the requirement that the first ten days of EFMLEA leave be unpaid. Nonetheless, regardless of the reason for which leave is taken, leave continues to be paid at a rate of two-third’s of the employee’s regular pay rate, capped at $200 per day.

Disqualification from Receiving Payroll Tax Credits

The ARPA makes it clear that employers can forfeit their right to receive tax credits if they violate the provisions of the FFCRA that bar employers from retaliating against employees who request or take leave. Tax credits may also be forfeited if an employer administers its paid leave program in a way that discriminates in favor of highly compensated employees, more senior employees or full-time employees.

Intersection with New York Law

Although leave under ARPA is not mandatory, New York employers must bear in mind that they continue to have obligations under the State’s Quarantine Leave Law (QLL). That law requires employers to provide leave to employees who are subject to a government order of quarantine or isolation. In certain circumstances, which we previously blogged about, an employee may be entitled to QLL leave for up to three periods of quarantine or isolation.

Even where an employer chooses to provide leave under ARPA, it must provide employees with the benefits of the QLL where they are more generous than ARPA leave. In those cases, employers cannot claim a payroll tax credit for benefits that are required by the QLL but not required by ARPA. For example, in certain circumstances the QLL requires an employer to pay an employee at his regular rate of pay for the duration of leave. Leave under ARPA may also be available but is capped at $511 per day under EPSLA and $200 per day under EFMLEA. In that situation, the employer may not claim a tax credit for any amount paid in excess the ARPA amounts.

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We expect that the United States Department of Labor will eventually issue regulations or guidance documents concerning leave under the ARPA, and will blog about any updates when they happen. Meantime, if you have any questions about leave, please contact Jessica Baquet at (516) 393-8292 or jbaquet@jaspanllp.com.

Beginning on July 4, 2021, fast food employees in New York City will be entitled to significant job security under local laws signed by Mayor DeBlasio in January of this year. Among other things, Law 2021/002 requires fast food employers to use progressive discipline before firing someone and prohibits them from terminating or substantially reducing the hours of fast food employees without just cause. Additionally, Law 2021/001 requires fast food employers conducting layoffs to have a “bona fide economic reason” and to lay off employees in reverse order of seniority (i.e., those hired most recently must be terminated first). Employees who believe they have been terminated in violation of either of these laws may now pursue arbitration and an employer who violates the laws may be directed to pay the employee’s attorneys’ fees.

Law 2021/002

This law permits employers to impose a probationary period of up to thirty days during which a fast food employee may be discharged without cause. However, after the expiration of the probationary period, a fast food employee may not, except for just cause, be discharged, indefinitely suspended or subject to a reduction in hours of 15% or more of the employee’s regular schedule or of any weekly work schedule. The law defines “just cause” as “the fast food employee’s failure to satisfactorily perform job duties or misconduct that is demonstrably and materially harmful to the fast food employer’s legitimate business interests.”

Whether there is just cause for termination depends on whether:

  1. The fast food employee committed misconduct or violated a rule or policy of the employer and knew or should have known about that rule or policy.
  2. The rule or policy of the fast food employer was reasonable, and the employer applied it consistently.
  3. The fast food employer provided sufficient training to the fast food employee.
  4. The fast food employer conducted a fair and objective investigation into the fast food employee’s job performance and/or misconduct.

These are not the only requirements for termination, suspension or a reduction in hours based on just cause. Except in cases of an “egregious failure by the employee to perform their duties, or for egregious misconduct,” a fast food employer cannot undertake an employment action for just cause unless: (1) it first implemented “progressive discipline”; and (2) the employer had a written policy of progressive discipline in place and gave a copy of it to the employee.

The progressive discipline policy must provide for “a graduated range of reasonable responses” to an employee’s failure to fulfill his or her duties. Further, the employer cannot rely on progressive discipline imposed more than one year ago in terminating an employee for just cause. As a result, if an employee was subject to progressive discipline more than a year ago and then commits the same offense, the employer cannot terminate the employee for just cause and must instead begin implementing progressive discipline anew.

Within five days after a fast food employee is discharged, suspended or subject to reduced hours for just cause, the employer must provide a written notice explaining the employment action taken and the exact reasons for it. This step is critical because, in the event the employee challenges the employer’s decision in court or arbitration, the employer is not allowed to rely on any reasons for termination other than those contained in the notice.

In the event that a fast food employee challenges his termination and the employer fails to prove that it terminated the employee for just cause, the employer must reinstate the employee (unless the employee waives this requirement) and pay the employee’s reasonable attorneys’ fees and costs. The employee may also be entitled to back pay for loss of wages and benefits, $500 for each violation by the employer, rescission of the discipline issued, and “any other equitable relief as may be appropriate.”

Law 2021/001

This law limits a fast food employer’s rights in the event of a layoff. Specifically, the law allows for the termination, indefinite suspension or a reduction in hours of a fast food employee if the employer has a “bona fide economic reason.” To prove that it has a bona fide economic reason, the fast food employer must have business records demonstrating “the full or partial closing of operations or technological or organizational changes to the business in response to the reduction in volume of production, sales, or profit.”

Even assuming that a fast food employer has a bona fide economic reason for conducting a layoff, it is still not free to select any employees to layoff. The law requires the employer to layoff employees in reverse order of seniority at the establishment where the discharge will happen. This means that the employer must retain the most senior employees the longest. This structure is often referred to as “last in, first out.”

A fast food employer must also make “reasonable efforts” to reinstate any fast food employee who was laid off within the previous twelve months before offering to distribute shifts to other employees or hiring new employees. And, the employer must reinstate employees in order of seniority, offering restoration to the most senior employees first.

Arbitration

Fast food employees who believe they were wrongfully discharged, suspended or had their hours reduced may elect to challenge their employer in an arbitration. They must bring the arbitration within two years of the date the law was allegedly violated. If the employee chooses arbitration, it may not later sue the employer in court or file a complaint with an administrative agency.

In any arbitration, the parties will jointly select the arbitrator(s) from a panel. The members of the panel will be selected by a committee consisting of four fast food employees or advocates and four fast food employers or advocates. The government will choose the arbitrator if the parties cannot agree on one.

Conclusion

These new laws create substantial administrative burdens for fast food employers, who must now ensure that their policies and procedures are detailed, up-to-date and in writing. They must also create written systems of progressive discipline. They must also train human resources and management personnel to implement these progressive discipline systems and to conduct and document thorough investigations of policy violations and misconduct. Documenting downturns in business and revenue is also an essential prerequisite to undertaking a layoff. An employer’s failure to do what is required may result in substantial monetary exposure, including paying not only for its own attorneys but also the employee’s.

For these reasons, it is important for fast food employers to be diligent and proactive well in advance of July 4th. If you have any questions about the new law, contact Jessica Baquet at (516) 393-8292 or jbaquet@jaspanllp.com.

 

On March 12, 2021, Governor Cuomo signed a new law requiring public and private employers to provide paid leave for any employee receiving a COVID-19 vaccination. Under the new law, employers must provide their employees up to four hours (or, if greater, such time as an employee is entitled to receive pursuant  to  a collectively bargained agreement or as otherwise authorized by the employer) of paid time off per vaccine injection at their regular pay rate. The paid leave cannot be deducted against any other leave such employee is otherwise entitled, such as sick leave. Additionally, the new law prohibits employers from discriminating or retaliating against employees for requesting or taking leave to be vaccinated for COVID-19.

This legislation takes effect immediately and will expire on December 31, 2022. The law does not require employees to provide proof of a vaccination appointment; however, employers are not prohibited from requesting such proof. Employers should be careful to maintain compliance with other health and privacy laws. The new law  may  be  waived  by  a  collective bargaining  agreement,  provided  that  for  such waiver to be valid, it must explicitly reference the law.

This new legislation, although temporary, joins a myriad of other recently enacted New York sick leave and emergency paid sick leave laws. In September 2020, New York enacted a sick leave law requiring employers to track employee accrual of sick leave depending on certain factors (discussed here). Additionally, the New York State Department of Labor issued guidance in January regarding paid COVID-19 Leave (discussed here).

For further information or guidance on how this law may affect your business, or for assistance in revising your policies and procedures in accordance with this law, please contact David Paseltiner at dpaseltiner@jaspanllp.com or Jessica Baquet at jbaquet@jaspanllp.com

Before the new year, New York’s COVID-19 leave law received less attention than its federal counterparts, the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). However, because paid leave under EPSLA and EFMLEA expired on December 31, 2020, New York’s law is now the subject of renewed attention.

We blogged about the New York law when it was first enacted in March 2020. By way of background, the law requires employers to provide leave to employees who become subject to a government order of quarantine or isolation due to COVID-19. The duration of leave to be provided, whether that leave will be paid or unpaid, and whether disability and/or paid family leave benefits are available to the employee all depend on an employer’s size and/or income. The largest employers–those with one hundred employees or more–must provide fourteen calendar days of paid leave at an employee’s regular rate of pay.

As the pandemic unfolded, it became apparent that employees might meet the criteria for an order of quarantine or isolation more than once. For example, an employee may need to quarantine due to mere exposure to the virus at one point, and later the same employee might actually contract the virus and need to isolate. It is also conceivable that the same person could contract the virus more than once and would be subject to an isolation order in each instance. The law does not explicitly provide for multiple instances of paid leave in these situations.

Late last week, however, the New York State Department of Labor (“NYSDOL”) issued a guidance document (“Guidance”) that addresses this topic. The Guidance indicates that employees may exercise their rights to paid leave under the New York law up to three times, provided that the second and third occasions are necessitated by the employee testing positive for COVID-19.

First, the Guidance considers situations in which an employee takes leave because he or she is subject to an order of quarantine or isolation, returns to work but later tests positive for COVID-19. The Guidance states that such an employee must not report to work after testing positive and is instead entitled to another period of leave. The employee need not provide his or her employer with a copy of another government order of isolation or quarantine. The employee must only provide proof of a positive test, unless his or her employer is the one who administered the test (in which case the employer should already have the result).

Second, the Guidance considers situations in which an employee takes leave but, at the conclusion of leave and before returning to work, tests positive for COVID-19. Again, the employee must not report to work and is entitled to another period of leave. An employee in this situation is also deemed to be subject to a government order of isolation and need only provide his or her employer with proof of a positive test.

The Guidance also addresses situations in which an employer prohibits an employee from reporting to work due to a possible exposure to the virus, notwithstanding that the employee is not subject to a quarantine or isolation order. The employer must pay the employee in this situation but may not treat the employee as having exhausted all or part of his or her paid leave allotment.

There is a significant chance that the Guidance will be challenged by employers. The law that the Guidance is based on does not explicitly set out any requirement that employers provide their employees with multiple rounds of paid leave. As a result, it is important for employers to stay abreast of further developments.

For questions about COVID-19 leave, please contact Jessica Baquet at jbaquet@jaspanllp.com

Today’s Jaspan Schlesinger LLP Business Law Blog publication by partner Robert Londin is about protecting your privacy and information from “phishing” attacks. This subject is of general interest and important to all businesses and people which is why we are sharing with labor and employment blog readers as well.

In these times of pandemic, many good people (like essential workers, first responders, and doers of random acts of kindness and charity) continue to help others.   Unfortunately, there are those that continue to prey upon others by casting snares to compromise confidential and sensitive information like social security numbers, credit card numbers, and passwords.

This is generally known as “phishing” and the ordinary citizen would be surprised at the sophistication of these attacks, the simplicity of these attacks, and the effectiveness of attacks on personal data (and $aving$).

Phishing is decades old and, as technology advances, phishing attacks grow exponentially due to the increased accessibility to people and businesses. This article briefly addresses some of the more common phishing attacks and countermeasures.

The Primordial Sea

The early days of phishing featured scams where subjects were approached via email by purportedly jailed African princes looking to reward others for helping “royalty” free their vast fortunes. It took a while for the most greedy prey to realize that they were being scammed. Although similarly themed scams still abound, these days phishing attacks can be much more sophisticated in their approach, look, and feel.

Phisherman’s Tools of the Trade

Yes, the phisherman’s bait box includes worms like malware, link manipulation, “spearphishing” , “spoofed” emails,  and “vishing” and other sophisticated techniques designed to ensnare your private and confidential information. I could author a separate article for each and every one of the numerous traps that can be laid for the unsuspecting person or business. However, this article will serve only as a brief and general description of more prevalent phishing hooks/bait and some common sense wake-up calls and protections to combat the unwanted trawler.

Common attacks include emails that can contain malware and other nasty “launchables”. Attacks can allow the cybercriminal to track your keystrokes, gain access to your data, and authorize your device to run other functions and programs. The criminal casters can “spoof” legitimate vendors. Did you get an email about tracking a surprise FedEx delivery, resetting a password, an “automatic response” from a vendor/email you did not contact, a failed log-in attempt, confirming a purchase, or renewing your virus protection software?  BE CAREFUL!  Also, some phishing emails can blindly extort you by notifying you that your private information or photos have been accessed, and then demand a ransom. For businesses, hackers gain access to key information systems via compromised passwords or other weak IT security protocols, and then cripple the business by shutting down information technology systems until a ransom is paid.  Similar to the old “send me money to help free my fortune” scams, beware general inquiries to your business “info@” email address.   Venture capitalists with millions to invest in your business don’t send general solicitations to “contact us”  email boxes. Although credit card companies and financial institutions greatly enhanced their fraud prevention programs, these programs result in email traffic confirming purchases which means you must increase your diligence to sort out the bona fide notifications.   Set your credit card and banking notifications to low dollar amounts.  Typically, your compromised data will be tested with a small purchase before the “Pretty Woman” shopping spree begins.

We all get unsolicited phone calls at home or on our cell phones.  These calls range from the completely bogus phish to the legitimate business call. Even the calls that are arguably legitimate typically try to sell you on a product or service that you don’t desire (or need) … not to mention automated Chinese language calls (which are typically an attempt to threaten Chinese foreign nationals with deportation unless they pay a fee by phone). The Internal Revenue Service or a criminal/enforcement division of a government agency rarely (if ever) calls first.

The Catch

So, what’s a phisherman desired catch?  Tasty hooked information includes: access to laptops and personal computers, passwords, Social Security numbers, access to bank accounts and credit card numbers, and the equity in your home (with your Social Security number, phisherman can remotely apply for a home equity loan on your house).  Many times, the phisherman sells your information on the dark web.  That’s how they make their money.  The buyer of that info, in turn, makes new credit cards and then sells those cards to the shoppers.  For an entertaining factual accounting of this kind of cybercrime, read Kingpin which chronicles the exploits of a computer hacker who stole access to nearly two million credit card accounts.

Shark Repellants

So, what are some very basic protections that we “phish“ can use to avoid the hook? Here’s a brief list of some anti-phishing tactics:

* Never provide your Social Security number or any private or confidential information if you have any doubts.

* Regularly change your passwords. Make your passwords somewhat complex by using numbers and symbols and a mix of both upper case letters and lower case letters. Never use the same password for different vendors, websites or financial institutions (otherwise one password breach will ripple through your pond of privacy and financial protection). Use a secure password keeper on your cell phone to track and keep all your relatively complex passwords. Try to have a backup for that password keeper just in case your phone fails. Don’t let anyone know what your passwords are or where you keep your passwords. All this is worth the risk of the outrage of your teenage children when they can’t instantaneously access Netflix.

* Don’t click on suspicious email embedded links.  This is not Storage Wars and the link won’t likely bring you to a storage locker full of goodies.

* Don’t store credit card numbers on websites.  Otherwise, you are trusting that vendor’s security protocols.

* If you think there is a remote chance that the request for information is for a legitimate reason, don’t reply to an email, don’t click on any embedded link, and (in the case of a phone call) hang up the phone first. Then, find out the legitimate contact information of the subject vendor, confirm that contact information, and then call them directly (or visit their website via your own direct search).

* In the case of apparent spoofed emails, run your cursor over the sender’s email address. If the email shows to be a gmail account or a strange looking email address with lots of numbers and/or a suffix not related to the vendor, delete the email. In fact, it’s probably good practice to permanently delete anything you suspect as being fraudulent. If you feel like a credit card alert could be legit, where possible, download the financing institution’s bona fide app to your phone and monitor your purchases via secure application.

* On your cell phone, each time you get one of these unsolicited phishing calls, block the number. For me, this reduced the number of anonymous Chinese calls and requests to extend car warranties by over half. You can block numbers both on your cell phone and, if your home phone number is supported by VOIP, you can also block numbers via your service provider’s website (I know that Optimum allows you to do this). Using the national Do Not Call Registry is a good idea (www.donotcall.gov).

* Add a credit monitoring app to your phone. Credit Karma is pretty good. If your information has already been compromised (for example if a large financial institution’s database was breached and your Social Security number is out there), upgrade to a monthly subscription service that’s more aggressive in its monitoring. In addition, by contacting any of the four major credit agencies (EquiFax, TransUnion, Innovis and Experian), you can put a personal “credit freeze” in place. With a credit freeze in place at any one of the major agencies (the agencies share freezes with each other), no third-party can pull credit on you without having the freeze lifted which can only be done by your action. The https://www.OptOutPrescreen.com service protects from unauthorized credit checks. Thus, you won’t get a surprise home equity loan on your house or a Best Buy credit card in your name for the purchase of an entirely new suite of kitchen appliances shipped elsewhere. Yes, it adds an extra level of diligence when you want to use new credit financing for your own situation (for example, a new car lease), but the protection is sound.  By the way, as a general rule, you are not responsible for fraudulent credit card purchases.

* Ignore general solicitations for investment in your business through people you don’t know. Share information only after vetting a third party, then seek out an attorney to draw an appropriate confidentiality agreement for your business which includes a no-solicit provision.  If a legitimate someone is truly interested in investing in your business, they will find you through more direct business introductions.

* Yes, we all want to increase our social networking profile. BUT, accepting a new friend or a new LinkedIn contact may come at a cost. Take the time to figure out truly whether you know this person or whether networking with them will be beneficial (after briefly vetting the background through publicly available tools).

* Don’t engage anonymous extortionists or blackmailers (unless they separately convince you that they do truly have the goods on you and, in which event, consider hiring a private detective, lawyer and reaching out to the police).

* I know this next one’s going to be a downer… BUT … resist the temptation of pranking back the anonymous caller or emailer. As much fun as it could be to spend a half hour on the phone messing with a  telemarketer or replying to unsolicited email with a “Get lost!” (or less nice words), why make yourself a target for a sophisticated hacker type?

* For businesses, train your employees and make them savvy about the items we discussed. They too should not click on any potential spoofing emails on business devices. Teach them to report any potential incursions to your IT department. Discourage (or prohibit) Internet browsing from company devices. Make sure that employees regularly change passwords.  Challenge your employees to safely store passwords (rather than on Post-its attached to computer monitors).

* Yes, all of our time is precious, but putting two factor authorization on websites and applications is great protection.

* SHRED, SHRED, and SHRED some more.  While reviewing your (snail) mail, sort it.  When done, SHRED all mail that contains personal information.  Credit card company flyers enticing you to apply for a new card typically no longer allow third parties to use that flyer/application to open credit in your name….but…SHRED THEM ANYWAY.  Using  https://www.OptOutPrescreen.com can also reduce your junk mail.

* There are websites (like www.scambusters.org)  that can help you debunk myths and check for phishes and scams. If you are presented with an email or phone call that’s suspicious, take the time and describe the suspicious request and add the word “scam“ or “phish“ to a Google search.  You can also Google the sender’s email or phone number (again, with the word “scam”).

* Listen to your “Little Voice”.  One of my favorite TV shows in the 80s was Magnum, P.I.  Solving mysteries, Thomas Magnum always listened to his “little voice”… which was his intuition barking at him.  If somethings seems suspicious or too good to be true, listen to your intuition and back it up with logical analysis.

*DON’T PANIC.  “Little Voice” or no “Little Voice”, slow down and think clearly.

Those are just some basic tactics that you can take to stay off the hook and protect your privacy and wallet. Remember, as we get smarter, phishermen get more creative.  Stay vigilant!

For more information, contact Robert Londin.

 

 

 

 

With Election Day rapidly approaching, New Yorkers are already making voting plans with an eye towards the long lines that await them at their local polling place.   To best ensure that they will be able to cast an in-person ballot on November 3rd — in what is being touted as the most important election of our lifetime (Newsflash: this same declaration is made every four years) –many voters will have to juggle work schedules, family commitments and a host of other conflicting obligations in order to get to the polls.  While workers solidify their individual voting plans, employers must be cognizant of the legal obligations they have with respect to Election Day.  These legal obligations are spelled out in New York’s Election Law and are summarized below.

On April 3, 2020 Governor Cuomo signed certain budget legislation that also included an amendment to the Election Law which resulted in the re-enactment of the pre-2019 law that governed employee time off to vote.  Section 3-110 of New York’s Election Law now provides, yet again, that employers must provide their employees with “sufficient time” outside of the employee’s working hours to accommodate said employee’s plan to vote.  Sufficient time is defined as having four consecutive hours between the start or end of the employee’s shift and the opening and closing of the polls.  Therefore, if the employee has a four hour block to cast his or her ballot, that is considered sufficient time and the employer need not provide the employee with paid time off to vote during the workday.  If, however, the employee does not have sufficient time, they may take as much time off to vote as needed.  Two (2) of those hours must be paid by the employer.  Employers are entitled to designate whether the time the employee takes off occurs during the end or beginning of the workday.  The time off may not be charged against the employee’s other paid time off privileges, i.e. vacation, sick and personal days.

To facilitate the process, employees must notify their employees no more than ten (10) days and no less than two days before Election Day that they need time off to vote.  Finally, the law requires employers to conspicuously post a notice in the work place setting forth these provisions of the Election Law at least ten (10) days before the election. This notice can be found on the New York Board of Elections website (NY Board Of Elections).  Therefore, starting Monday October 26th, employers should anticipate receiving notices from their employees that they need time off to vote on Election Day.  By that date, these employers must have posted the above-referenced notice.

Get out and vote!