On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) recently issued updated guidelines for employers seeking to implement office-wide policies requiring their employees to get vaccinated. Although vaccines are now widely available, many employers have been unsure about whether and to what extent they are permitted to mandate vaccinations.

The updated guidelines clarify that federal Equal Employment Opportunity laws do not prevent an employer from mandating vaccinations for employees physically entering the workplace, subject to the reasonable accommodation provisions of Title VII, the Americans with Disabilities Act (“ADA”), and other considerations, some of which are discussed below.

Undue Hardship

There has been much talk of late as to whether employers seeking to mandate vaccinations must make exceptions for employees who cannot or will not be vaccinated based on a disability or a sincerely held religious belief, practice, or observance. On this issue, the EEOC does not offer a hardline rule. Rather, it describes an “undue hardship” analysis, pursuant to which an employer must provide reasonable accommodations for such an employee unless doing so would pose an undue hardship on the operation of the employer’s business.

The definition of “undue hardship” will depend on whether the statute at issue is Title VII of the Civil Rights Act or the ADA. The EEOC offers that, under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer. The standard set forth under the ADA is, by contrast, a more stringent standard, as it defines undue hardship as “significant difficulty or expense.”

What is a Reasonable Accommodation?

As one example, the EEOC offers that an unvaccinated employee might wear a face mask, work at a social distance from others, work a modified shift, get periodic tests for COVID-19, be given an opportunity to work remotely or, “finally, accept reassignment.” The offer of reassignment should be a last resort. If an employer makes accommodations based on disability or religion, it may also be required to offer the same accommodations to those who are not vaccinated “because of pregnancy.”

Exemptions Based on Disability

An employer who knows that certain employees are disabled can nonetheless implement a mandatory vaccination policy if the policy at issue is safety-related, job-related, and consistent with business necessity. However, the policy could not be imposed upon the disabled employee unless they “would pose a ‘direct threat’ to the health or safety of the employee or others in the workplace, which means they pose a “significant risk of substantial harm” that cannot be eliminated or reduced by providing a reasonable accommodation (absent undue hardship).

To determine whether a disabled employee poses a “direct threat,” an employer should assess the employee’s present ability to safely perform the job. This requires consideration of the following factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. The determination should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19 such as, for example, the level of community spread at the time of the assessment. The assessment should also take into account the nature of work environment, such as whether the employee works alone or with others or works inside or outside.

The EEOC advises that, as a best practice, the employer should notify all employees that it will consider requests for reasonable accommodation based on disability on an individualized basis. Employers should also provide managers, supervisors, and those responsible for implementing the policy with clear information about how to handle accommodation requests related to the policy.

Exemptions Based on Religion

As with disability, an employer on notice that an employee’s “sincerely held religious belief, practice, or observance” prevents vaccination must provide a reasonable accommodation unless it would impose undue hardship. The EEOC advises that the definition of religion is broad, and that best practice would be to assume that an employee’s religious belief is sincerely held, absent an awareness of facts that provide an objective basis for questioning either its “religious nature” or its sincerity.

As with disability, an employer should consider all reasonable accommodations including telework and, as a last resort, reassignment.

These guidelines are intended to offer additional clarity to employers as they navigate the post-vaccine workplace. Employers may find additional details on workplace vaccine policies on the EEOC’s website, and should take note that all of the above guidelines are offered with the caveat that, regardless of any undue hardship analysis, an employer may open itself to liability where a vaccine requirement has a disparate impact or disproportionately excludes employees based on their race, color, religion, sex, national origin, or age.

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.

 

 

On May 11, 2021, New York City enacted the Retirement Security for All Act, Int. Nos. 888-A and 901-A (the Act), which establishes a retirement savings program for private employers with five or more employees if those employers do not otherwise offer employees a retirement plan or defined benefit pension plan.

The Act obligates New York City employers to automatically enroll eligible employees in an individual retirement account (IRA) program, deposit funds into the program for each enrolled employee, and distribute information to employees. Eligible employees include those who are at least twenty-one years old and work at least twenty hours per week.

The program will be funded with deductions from employees’ wages and employers are not required to contribute to the plan. The default deduction will be 5% of an employee’s wages up to a maximum of $6,000 for employees under age 50 and $7,000 for employees age 50 or older. Employees are permitted to opt-out of the program or adjust the amount of their deduction subject to these caps.

IRAs created under the law will be portable, meaning that an employee can keep contributing even if he or she leaves a job. Employees can also roll their accounts over if they switch jobs start and participating in another employer’s retirement plan.

Although the Act is scheduled to become effective on August 9, 2021, the logistics of the program have yet to be ironed out. The Act creates a Retirement Savings Board (Board) and tasks it with entering into contracts with financial institutions and creating processes for enrollment, among other things. The Board has two years to complete this process and announce a start date for the program.

New York City employers should immediately familiarize themselves with the Act and stay abreast of information disseminated by the Board. If you have any questions, please contact Jessica Baquet at (516) 393-8292 or jbaquet@jaspanllp.com

On May 5, 2021, Governor Cuomo signed legislation requiring New York employers to have a plan to prevent exposure to airborne infectious disease in the workplace and providing for the creation of joint labor-management committees to address workplace safety. Sections 218-B and 27-D of the New York Labor Law were enacted pursuant to the new legislation.

New York Labor Law Section 218-B, effective June 4, 2021, mandates that private employers establish an airborne infectious disease exposure prevention plan (a “plan”) relevant to their industry. The Department of Labor (DOL), with input from the Department of Health, must publish model standards for all work sites, differentiated by industry, to protect the public and employees (Note: as of May 12, 2021, the DOL has not yet published the model standard). Employers may choose to adopt the model standard published by the DOL or create an alternative plan which meets or exceeds the minimum standards set forth in the DOL’s model standard. Section 218-B defines “employee” very broadly including, but not limited to, independent contractors, domestic workers, and seasonal workers. Additionally, the new law defines “work site” as “any physical space, including a vehicle, that has been designated as the location where work is performed.” The model standards or alternative plan must address various procedures and methods, including but not limited to, (i) employee health screenings, (ii) face coverings, (iii) required personal protective equipment applicable to the industry, (iv) regular cleaning and disinfecting of shared equipment and frequently touched surfaces, (v) effective social distancing for employees and consumers or customers, (vi) one or more designated supervisory employees to enforce compliance, and (vii) anti-retaliation provisions.

Once an employer adopts a plan it must (x) post the plan in a visible and prominent location within the worksite; (y) include the plan in its handbook, if it has one, and (z) provide the plan in writing to its employees in English and in the language identified as the primary language of such employee. Additionally, the plan must be provided to (i) a new employee upon her or his hiring, (ii) all employees following reopening after a period of closure due to airborne infectious disease, and (iii) any employee, independent contractor, collective bargaining representative, or the commissioner of the DOL or of Public Health, upon such person’s request.

The DOL commissioner may assess a civil penalty for (i) failure to adopt an airborne infectious disease exposure prevention plan (minimum $50 per day); or (ii) failure to abide by an adopted plan ($1,000-$10,000). The law also permits an employee to bring a civil action seeking injunctive relief against an employer alleged to have violated its plan in a manner that creates a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations or processes which have been adopted or are in use, by the employer at the work site, unless the employer did not and could not, with the exercise of reasonable diligence, know of the presence of the violation. While a court may award costs and reasonable attorneys’ fees to the employee, and order payment of liquidated damages of no greater than $20,000 (unless the employer proves a good faith basis to believe that the established health and safety measures were in compliance with the applicable airborne infectious disease standard). The law also states that where an action brought by an employee, or a defense, counterclaim, or crossclaim brought by an employer in response thereto, is found upon judgment to be completely without merit in law and undertaken primarily to harass or maliciously injure another, the court may in its discretion impose sanctions against the attorney or party who brought such action, defense, counterclaim or crossclaim.

The law prohibits retaliation against employees for (i) exercising their rights under the law section or under a plan; (ii) reporting violations of the law or a plan to any government entity, public officer or elected official; (iii) reporting an airborne infectious disease exposure concern to, or seeking assistance or intervention with respect to airborne infectious disease exposure concerns, to their employer, a government entity, public officer or elected official; or (iv) refusing to work where such employee reasonably believes, in good faith, that such work exposes the employee, other workers or the public, to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with laws, rules, policies, orders of any governmental entity, including the minimum standards provided by the model airborne infectious disease exposure prevention standard, provided that the employee, another employee, or employee representative notified the employer of the inconsistent working conditions and the employer failed to cure the conditions or the employer had or should have had reason to know about the inconsistent working conditions and maintained the inconsistent working conditions.

New York Labor Law Section 27-D, effective November 1, 2021, mandates employers with at least 10 employees to permit employees to establish a joint labor-management workplace safety committee to raise health and safety concerns, and review policies implemented for workplace health and safety. The workplace safety committee must meet during work hours at least once a quarter. Furthermore, multiple committees may be created so that each geographically distinct worksite is represented. Each committee must be composed of employee and employer designees, provided at least two-thirds are non-supervisory employees.

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.

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