Back to School and Application of FFCRA Leaves with the Various Return to School Models

As schools across our area reopen (physically and remotely) for children this fall the U.S. Department of Labor (DOL) added new guidance on August 27, in its frequently asked questions (FAQs), to address the leaves that may be available to employees under the new learning models in the schools.

The Families First Coronavirus Response Act (FFCRA) provides up to 12 weeks of leave for eligible employees of employers with fewer than 500 employees in the event an employee needs to care for child(ren) because of school or childcare closures due to COVID-19 related reasons. The employee may be eligible to take two weeks (up to 80 hours) of emergency paid sick leave (EPSL)  and up to an additional 10 weeks of paid expanded family and medical leave (EFMLEA) (provided the employee has been employed for at least 30 days) if the employee is unable to work (or telework) because they are caring for a child whose school or place of care is closed (or child care provider is unavailable). Currently, leaves available under EPSL and EFMLEA are due to end on December 31, 2020.

Provided an employee has leave available under EPSL or EFMLEA, an employee may be entitled to these FFCRA leaves when the school is operating either partially or entirely remotely.  To address some of these issues, the DOL issued the following guidance:

  • Completely remote model: if a child’s school has moved to entirely remote instructions, the school is considered “closed” for purposes of EPSL and EFMLEA. An employee can take the paid leave if the employee “needs the leave to actually care for his or her child during that time and only if no other suitable person is available to do so.”.
  • Hybrid model: if a child’s school is operating on an alternate day or hybrid attendance model (some days remote and some days in person), the employee can take paid leave, on the days when the child is not permitted to attend school in person and must participate in remote learning.
  • Optional approach model: if the school gives the parent a choice between having the child attend remotely or in person, and the parent elects the remote model, the DOL has indicated that the school is not “closed” due to COVID-19 reasons and the paid leaves are not available to an employee.

When an employee qualifies for leave under EPSL, the time out is for a maximum of two weeks (80 hours), and is paid at a rate of 2/3 of the employee’s regular rate of  pay, capped at $200 per day and $2,000 in the aggregate.  Leave taken under EFMLEA is also paid at a rate of 2/3 of the employee’s regular rate of pay, capped at $200 per day and $10,000 in the aggregate.  Employees who had previously taken FMLA during the previous 12 months, and depending on how long the employee was out on FMLA, the employee may not have the full 12 weeks available to them for leave under EFMLEA as the employee is only permitted to take 12 weeks between FMLA and EFMLEA combined.

Considering that schools were closed earlier this year, many employees may have already exhausted their FFCRA leave benefits.  There has been no indication at this time that the U.S. Congress is considering any expansion of these paid leave benefits.  Employees who have no time remaining under the FFCRA leaves may need to use their own PTO to cover their time out for these scenarios.

PMP will continue to monitor the situation and provide updates when necessary.



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Navigating New York’s Paid Sick Leave Law

On April 3, 2020, New York State Governor Cuomo signed a bill that requires all New York employers to provide paid or unpaid sick leave to their employees. The bill takes effect 180 days after the budget passed, on September 30, 2020, and employers should be sure that they have policies and procedures in place to comply with the law.

 

 

The law requires the following:

Employer Size

Employee Leave Entitlement

4 or fewer employees in any calendar year and a net income of less than $1 million in the previous tax year

At least 40 hours of unpaid sick leave in each calendar year

4 or fewer employees in any calendar year and a net income of greater than $1 million in the previous tax year

At least 40 hours of paid sick leave in each calendar year

Between 5 and 99 employees in any calendar year

At least 40 hours of paid sick leave in each calendar year

100 or more employees in any calendar year

At least 56 hours of paid sick leave in each calendar year

 

To determine an employer’s size under the law, a calendar year is defined as the 12-month period from January 1 to December 31.

Accrual and Carryover and Use

Employees may begin accruing sick leave on September 30, 2020, or when employment begins, whichever is later. After January 1, 2021, the law permits employees to use sick leave immediately upon accrual. Employees shall accrue sick leave at a rate of one hour for every 30 hours worked. For the purpose of using, accruing paid or unpaid leave, and carrying over of leave under the law, a calendar year means the 12-month period from January 1 through December 31, or a regular and consecutive 12-month period, as determined by an employer.

The law however, permits employers to frontload the total amount sick leave at the beginning of the calendar year, but employers may not later reduce the available amount of sick leave based on the number of hours actually worked by the employee.

Under the law, unused but accrued sick leave must also be carried over from year to year, however employers are not required to allow employees to use more sick leave than the accrual limits (40 hours for employers with fewer than 100 employees or 56 hours for employers with 100 or more employees).

Employers may also set a reasonable minimum increment for the use of sick leave, but that incremental use cannot exceed four hours. Employees utilizing sick leave must be returned to the same position they held immediately prior to the use of sick leave with the same pay and other terms and conditions of employment.

Pay Rate Requirements

Employees must be paid at their regular rate of pay and employers are not required to payout unused sick leave upon termination.

Recordkeeping

Employers are required to notify employees about their sick leave policies in writing and employers must also provide a summary of the amounts of sick leave accrued and used in any calendar year within three (3) business days of an employee’s request. Employers must retain records of leave accrual and usage for each employee for at least six (6) years.

Alternate Leave Policies

Employers need not provide additional sick leave if the employer’s existing paid sick leave policy or PTO policy meets or exceeds the law’s requirements for the amount of leave, use of leave, accrual, and carryover.

Collective bargaining agreements entered into on or after September 30, 2020 may provide comparable paid days off, in the form of leave, compensation, other employee benefits or in a combination of all three, in place of leave required by the sick leave law however the agreement must expressly acknowledge the requirements of the sick leave law.

Permitted uses of paid sick leave

· An employee’s or employee’s family member’s mental or physical illness, injury, or health condition, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that the employee requests the sick leave;

· The employee’s or employee’s family member’s diagnosis, care, or treatment of a mental or physical illness, injury or health condition, or for preventive care; or

· An absence from work due to any of the following reasons when the employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking:

o to obtain services from a domestic violence shelter, rape crisis center, or other services program;

o to participate in safety planning, to relocate temporarily or permanently, or to take other actions to increase the safety of the employee or employee’s family members;

o to meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in, any criminal or civil proceeding;

o to file a complaint or domestic incident report with law enforcement;

o to meet with a district attorney’s office;

o to enroll children in a new school; or

o to take any other actions necessary to ensure the health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.

The law defines family member as an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, and the child or parent of an employee’s spouse or domestic partner. Parent is defined as a biological, foster, step- or adoptive parent, or a legal guardian of an employee, or a person who stood in loco parentis when the employee was a minor child. Child is defined as biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.

What should employers do now?

All New York employers should review their existing sick leave or PTO programs to determine whether the existing policy complies with the new law.

The New York State Department of Labor is expected to issue additional regulations and guidance prior to the effective date of the law. If you have any questions regarding this new law, please reach out to PMP.



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Strategies to Help Manage Employee Anxiety When Returning to Work

As a vast majority of states have transitioned toward some level of economic reopening, employers are creating ways for employees to return back to work safely. While some employees are eager to return to the office, many employees fear that the economy is claiming priority above employees’ well being and health in order to return to normal operations.

As businesses resume operations, employers understand that workforce reentry certainly includes both operational and logistical planning to ensure employee safety in the workplace. However, it is equally important that employers plan not only to maintain the safety of employees’ physical health in the workplace, but that employers are prepared to respond to employees’ psychological and emotional health as well. It should come as no surprise that employees returning back to work will likely face anxiety regarding their return to the workplace. It is likely your employees’ anxiety stems from a lack of information and feeling of unpreparedness prior to returning to work. If employers fail to address these sources of anxiety and do not plan to assist their employees in managing their mental health, it is unlikely that a business will return to its pre-Covid engagement and productivity levels.

Addressing and reducing reasonable anxieties when returning to work in the wake of Covid is now an absolute essential task for businesses. Below we discuss strategies to help manage and reduce employee anxieties.

Share Your Covid-19 Response Strategy Ahead of Time. If management fails to advise its employees of its procedures to protect against Covid prior to the return of employees to the workplace, the lack of information can cause employees to panic. As a result, the level of your employees’ morale and enthusiasm is bound to decline. This means that communication is the first cornerstone to an employer’s successful transition back to business.

First, employers must develop and communicate their strategy to protect against Covid before employees are expected to return back to the office or workplace. The more information and transparency you can provide to your employees, the better you can win your team’s trust and buy-in. What do employees seek information about before returning to work? First, employees want clarification as to how their employers are going to modify or adapt the workplace to accommodate for social distancing. What will their day-to-day work look like? Will workspaces be spread apart to keep employees an appropriate distance from each other? How will employees’ interactions with colleagues or customers be modified? What kinds of personal protective equipment will employees need on a daily basis and what will be provided to employees? What new cleaning or disinfection responsibilities will employees have for their individual workspaces and communal areas? How will employers track employees’ interactions with other employees should the employer need to trace employee interactions in the event an employee contracts Covid. What protocol is in place to report issues or concerns regarding the company’s new health and safety policies?

Second, communicate how your company will use screening protocol and temperature checks to maintain a safe and healthy work environment. Third, explain why the employees are returning back to the office and why it’s the right choice for the company as a whole as well as the employees’ teams in general. Third, implement screening procedures before reopening. While it is true that Covid can be spread from asymptomatic individuals, employers can still take major steps to protect their employees collectively by preventing as many symptom-positive individuals and recent exposures from entering the workplace. Before reopening, employers should send a questionnaire to their employees to determine the following:

· Who is currently ill with Covid, or experiencing symptoms associated with Covid?

· Who has been exposed to or has cared for another ill with Covid, or experiencing symptoms associated with Covid in the last 14 days?

· Who has been advised by a medical professional to remain at home indefinitely due to a health condition?

· Who is currently the only source of childcare for a minor?

These questions will help employers determine the scale of their re-opening and will help to identify which employees will require additional help transitioning back to the workplace.

Understand That Everyone Reacts Differently To The Situation. It is important for employers to understand that throughout quarantine while many of your employees have been trying their best to work remotely at home, they have also had to care for their families. In addition, they may have lost finances, or they may have even lost loved ones due to Covid. It is normal that your employees are reacting differently to this new normal. Employers may certainly have employees who were more than happy to work remotely from home. It is also likely that many of your employees are very sociable people who now realize their lives have drastically changed and working from home has drastically impacted their lives. Employers must understand that once everyone is back in the workplace, you may have a team composed of both of those extremes. Obviously, they are going to react to the stress of returning back to the workplace differently. As long as employers are mindful that their employees can react to this new normal differently, the stress and anxiety of returning back to work can be overcome by adjusting how employers can provide support to their employees.

Provide a Clear Vision That Takes Into Account Dealing With The Public. While it is of the utmost importance for employers to maintain a safe work environment amongst its employees, employers must also provide clear instructions for your employees to interact with customers, visitors and the public. Employees may feel comfortable interacting with other employees in the workplace, it may be potential outsiders that make them nervous.

If you run a business where there’s frequent interaction with customers or the public, i.e., a retail, healthcare, or hospitality business, or have frequent outsiders inside the workplace, it is just as important for employers to develop and communicate procedures to prevent your employees from contracting Covid from an outsider. As part of these procedures, employers should provide clear instructions to employees regarding how to handle interactions with visitors, customers or the public. This may include installing sneeze guards or partitions, implementing temperature checks to all outsiders coming into the workplace, or another solution that would work best for your

business. It is important for employees be informed of these policies and procedures prior to returning to the workplace to reduce an employee’s potential anxiety regarding returning to their role which may include interactions with customers, visitors or the public.

Takeaways. Resuming operations and returning to the workplace in the aftermath of this unexpected pandemic is probably one of the greatest challenges employers will face. Trying to act as if nothing has changed is a detrimental mistake an employer can make and will surely lead to a decline in productivity and employee morale. Employers that hope to reopen their workplaces in a manner that will create a positive and safe workplace moving forward must remember the following:

· Your employees require advance notice of all policies and procedures that are to be implemented in the workplace in order to reduce their anxiety regarding their return back to work;

· You must have support systems in place to respond to your employee’s mental health as they return back to the workplace; and

· Your approach to reopening should address every role and aspect of your business, whether it is directly or indirectly affected by Covid.



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CDC Update: COVID-19 Communication Plan

On August 4, 2020, the U.S. Centers for Disease Control and Prevention (CDC) released a communication plan to assist employers with communicating with their employees about COVID-19. To view the CDC’s Communication plan click here.  The goal is to ensure that the employees have available accurate, actionable, and timely disease prevention and control information. This is in response to the rising number of COVID-19 cases among select non-healthcare critical infrastructure employees across the country.

While the communication plan does not target every industry, the message and tools it provides is applicable to all employers. A list of nonhealthcare critical infrastructure employees is found here.

The communication plan outlines the following:

Section 1: Methods To Communicate Your Message

This section suggests that employers use multiple methods in which to get the message out to employees to increase worker’s understanding of the information regarding COVID-19. Suggested methods include: text messages, letters to employees, socially distant small group meetings and/or providing information in multiple languages, which the CDC provides on its website.  Additionally, as part of an effective communication plan, the CDC suggests it is important for employers to provide opportunities for employee feedback and questions.

Section 2: Key Messages

Since workplaces are often comprised of a diverse population, employers may need to think out of the box so as to communicate effectively in culturally appropriate ways. Translation and interpretation of materials and messages into employees’ preferred language(s) using plain language is one way to help ensure successful prevention and control efforts.

Section 3:  Communication Resources

The links below provide communication materials (CDC posters, handouts, videos, and social media messaging), translated into multiple languages, from the CDC as well as state-based sites.

Regardless of what industry your company is in, employers must be diligent in regularly communicating to their employees, what is happening in the workplace regarding COVID-19. Best practices include being proactive in informing employees that the company is concerned about the employee’s health and everything that can be done is being done to protect their employees in the workplace.

While companies may believe that employees are informed about the protocols for staying home when sick, what the symptoms of COVID-19 are and how easily it is spread; and the requirements for social distancing and face masks; reminders of these protocols is necessary.  For example, within this CDC plan, there is an update to the CDC’s recommended return to work protocols.

  1. The CDC recommends that employees who had symptoms of COVID-19 you can return to work if at least 10 days have passed since your symptoms first started.
  2. The recommendation now goes one step further indicating that if the employee had a severe case of COVID-19 or is immunocompromised, the employee may need to wait up to 20 days before returning to work after discussing their individual situation with their healthcare provider.

Remember to maintain documentation of all of your communication, it will go a long way in defending your company’s action if they are ever called into question in the future. Continued communications with your employees is key to having an informed workforce and goes a long way in letting your employees know that they are valued.

Portnoy, Messinger, Pearl & Associates, Inc. is always here to help, please call us at 516 921 3400.



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COVID-19 Mitigation Strategies for Small Business

Guest Author:  Ron Loveland, President, Summit Safety & Efficiency Solutions (www.summitsafetypro.com)

The #1 problem I’m hearing from manufacturers is getting workers to show up! Why? Are they making too much staying home with the $600/week supplemental unemployment? Childcare/family issues? Concerned about contracting COVID19 at work? As an employer, what you can control is the safety culture and safe work environment you provide to your workforce. Let’s take a look at the COVID19 mitigation strategies that OSHA, CDC and NYS Department of Health require to ensure their employees ’safety and some innovations.

 

 

According to Governor Cuomo’s directive in NYForward, businesses have to:

1. Screen

2. Provide physical distancing

3. PPE (Personal Protective Equipment)

4. Enforce hygiene

5. Clean/Disinfect the workspace

6. Communicate

Let’s dig into these areas a bit deeper.

First off, each business is required to have a site safety plan which outlines its COVID19 protective measures and make an affirmation to the State that you understand NYS Department of Health COVID19 requirements.

Screening

NY State requires that you provide a daily health screening asking workers or visitors if they have:

(a) knowingly been in close or proximate contact in the past 14 days with anyone who has tested positive for COVID-19 or who has or had symptoms of COVID-19;

(b) tested positive for COVID-19 in the past 14 days; and/or

(c) has experienced any symptoms of COVID-19 in the past 14 days:

• Fever or chills

• Cough

• Shortness of breath or difficulty breathing

• Fatigue

• Muscle or body aches

• Headache

• New loss of taste or smell

• Sore throat

• Congestion or runny nose

• Nausea or vomiting

• Diarrhea

(d) have they been out of State to areas designated by NY State as “hot spots” with high infection rates. If so, they have to quarantine for 14 days

Maintain a log of every person, including workers and visitors, who may have close or proximate contact with other individuals at the work site or area

Employees who are sick should stay home or return home if they become ill at work.

Provide physical distancing

For any work occurring indoors, the workforce presence is limited to 50% of the maximum occupancy for a particular area as set by the certificate of occupancy, excluding supervisors

Companies must ensure that a distance of at least six feet is maintained among workers at all times, unless safety of the core activity requires a shorter distance (e.g. assembly lines). Any time employees must come within six feet of another person, acceptable face coverings must be worn. Employees must be prepared to don a face covering if another person unexpectedly comes within six feet.

When distancing is not feasible between workstations, businesses must provide and require the use of face coverings or enact physical barriers, such as plastic shielding walls, in lieu of face coverings in areas where they would not affect air flow, heating, cooling, or ventilation.

PPE (Personal Protective Equipment)

Providing safety measures (face masks and hand sanitizers) is the most important strategy for the employee safety. As a minimum protection from COVID19, this should be strictly enforced. They should not have their masks on the chin and they should not be allowed to expose their nose.

Businesses must procure, fashion, or otherwise obtain acceptable face coverings and provide such coverings to their employees while at work at no cost to the employee. Companies should have an adequate supply of face coverings, masks and other required PPE on hand should an employee need a

replacement or should a visitor be in need. Acceptable face coverings include, but are not limited to, cloth (e.g. homemade sewn, quick cut, bandana), surgical masks, N95 respirators, and face shields.

Hygiene

Companies must provide and maintain hand hygiene stations on site, as follows:

o For handwashing: soap, running warm water, and disposable paper towels.

o For sanitizer: an alcohol-based hand sanitizer containing at least 60% alcohol for areas where handwashing facilities may not be available or practical.

• Businesses should place signage near hand sanitizer stations indicating that visibly soiled hands should be washed with soap and water; hand sanitizer is not effective on visibly soiled hands.

Clean/Disinfect the workplace

Companies must conduct regular cleaning and disinfection of the site and more frequent cleaning and disinfection for high risk areas used by many individuals and for frequently touched surfaces. Cleaning and disinfection must be rigorous and ongoing and should occur at least after each shift, daily, or more frequently as needed.

o Businesses must ensure regular cleaning and disinfection of restrooms. Restrooms should be cleaned more often depending on frequency of use.

o Equipment and tools must be regularly disinfected using registered disinfectants, including at least as often as workers change workstations or move to a new set of tools.

o If cleaning or disinfection products or the act of cleaning and disinfection causes safety hazards or degrades the material or machinery, companies must put in place hand hygiene stations between use and/or supply disposable gloves and/or limitations on the number of employees using such machinery.

o Companies must provide for the cleaning and disinfection of exposed areas in the event of a positive case of COVID-19 of a worker, with such cleaning and disinfection to include, at a minimum, all heavy transit areas and high-touch surfaces (e.g. shared tools, machines, work stations, control panels, and keypads, telephones).

Communicate

As a leader of your organization, it’s imperative that you communicate these requirements that create a safe working environment for your employees.

Companies should develop a communications plan for employees, visitors, and customers that includes applicable instructions, training, signage, and a consistent means to provide employees with information. You may consider developing webpages, text and email groups, and social media.

Additionally, just like we frequently see reminders to wear our seat belts, placards, distance markings on floors, safety training and frequent verbal cues reminding workers to wear their mask, wash their hands, keep their distance, clean their workspace and report any exposure to illness are essential.

Stay healthy, stay safe!

 

Ron Loveland

President Summit Safety & Efficiency Solutions (www.SummitSafetySolutions.com)

Veteran Owned Small Business 631-642-7239 (o) 631-834-6216 (m)



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Form I-9 Document Inspection Flexibility Due to COVID-19 Extended Again

On March 20, 2020, in response to the challenges faced by employers as a result of the coronavirus pandemic, the Department of Homeland Security (DHS), announced temporary flexibility in the requirements for completing Form I-9, while employers were operating remotely.

Employers whose workforce was operating remotely could inspect the Section 2 identity and employment eligibility documentation remotely — via video link, fax or email, within three business days of hire, and the employer was required to retain copies of these documents. This provision only applied to employers and workplaces that were operating remotely — no exceptions were made if employees were physically present at a work location.

Once normal business operations resumed, employees whose documents underwent remote verification had to report to their employer within three business days for official in-person document verification. After employers physically inspected the documents, they would enter “COVID-19” in the Section 2 “Additional Information” field as the reason for the physical inspection delay. Employers should also have stated “documents physically examined” followed by the date of inspection in either Section 2 or section 3, as appropriate. For examples on how to complete this go to: https://www.uscis.gov/i-9-central/form-i-9-examples-related-to-temporary-covid-19-policies

DHS has extended this temporary flexibility multiple times, on May 14; June 16, July 18, August 19, and now the expiration date for these accommodations has been extended to September 19, 2020. These accommodations are expected to remain in place through the extended date or until three days after the national emergency is over, whichever comes first. Further extensions are possible depending on the COVID-19 emergency. Additionally, if employers qualified for and opted to use this remote inspection provision, they were required “to provide written documentation of their remote onboarding and telework policy to each employee.”

Additionally, employers are reminded that there is a new I-9 form that was required to be used for new hires after April 30, 2020. On May 1, 2020, all employers are required to use the new form with the 10/21/19 version date that expires 10/31/2022

Employers should continue to monitor the DHS and Immigration and Customs Enforcement (ICE) websites for additional updates.



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Navigating WARN Act Issues During COVID-19

As COVID-19 continues to affect the entire country, many states, counties, cities and localities have enforced measures, such as “New York on PAUSE”, to help decrease the transmission of COVID-19. These efforts to slow the transmission of COVID-19 have left many employers to face uncertainty and now forces those employers to consider alternative business contingency measures. While employers’ immediate outlook on the economy is grim, many anticipate that our local economy is only going to get worse before it gets better. This is forcing many employers to make the difficult decisions whether closures, reduction of hours, furloughs or layoffs will be necessary to keep their businesses viable during these trying and uncertain times. Employers must be informed about their obligations under the New York Worker Adjustment and Retraining Notification Act (“NY WARN Act”) regarding the intricate consequences of mass-layoffs, plant closures and reductions of hours.

The NY WARN ACT

Under the NY WARN Act, private sector employers in New York are required to provide a WARN notice 90 days before:

· Permanently or temporarily shutting down a single site of employment resulting in employment losses of 25 or more full-time employees in a 30-day period;

· Implementing a layoff affecting 250 workers from a single employment site during any 30-day period;

· Implementing a layoff affecting 33% of its workforce (at least 25 full-time employees) during any 30-day period;

· Reducing work hours of more than 50% during each month of any consecutive six-month period that impacts 33% of tis workforce (at least 25 employees) or at least 250 employees at an employment site; or

· Removing all or substantially all of the industrial or commercial operations of an employer to a different location 50 miles or more away, for at least 25 employees.

The NY WARN Act defines a “private sector employer” as a private sector business with (i) 50 or more employees (excluding part-time employees) within New York State, or (ii) 50 or more employees that work in the aggregate at least 2,000 hours per week within New York State.

Employers should note that an employer’s obligations under the NY WARN Act are generally not triggered for short-term furloughs that are less than six months. The NY WARN Act generally considers a furlough exceeding six months to be considered an “employment loss”, unless the extension beyond the six-month period was caused as a result of business circumstances that were not reasonably foreseeable at the time of the initial furlough. Employers should provide the required WARN notice at the time it becomes reasonably foreseeable that the extension of the furlough will exceed six months.

If notice is required under the NY WARN Act, it must be provided to the following:

· The affected employees;

· The affected employees’ collective bargaining representative (if any);

· The New York State Department of Labor; and

· The applicable local workforce investment board.

Businesses that fail to provide the required WARN notice under the NY WARN Act may be required to pay back wages and benefits to workers in addition to paying a civil penalty for each day the employer was in violation of the NY WARN Act.

The NY WARN Act and COVID-19

On April 17, 2020, Governor Andrew Cuomo signed Executive Order No. 202.19 (the “Executive Order”), which relaxes the stringent notification requirements under the NY WARN Act between April 17, 2020 and May 17, 2020. The Executive Order eased those requirements for employers that had previously laid of employees and then proceeded to rehire those employees after receiving federal Paycheck Protection Program (“PPP”) funding. Under these limited circumstances, the Executive Order required that employers need not comply with the 90-day WARN notice requirement, if an employer must lay off those rehired employees for a second time after receiving PPP funding, so long as the employer complied with the required WARN notice when it initially laid off the employees. The Executive Order further required employers to provide as much notice as possible to those employees being laid off for a second time.

Employers must note that the Executive Order is no longer in effect and thus, all employers subject to the NY WARN Act must still comply with the stringent NY WARN Act obligations and notice requirements.

Exceptions to the NY WARN Act

Employers should be aware of the exceptions the NY WARN Act provides, which excepts employers from complying with the 90-day WARN notice requirements. It is imperative that employers understand that the employer bears the burden and is responsible for proving that an exception exists. However, it is still good practice for an employer to provide as much notice as possible to employees even if the employer can prove one of the limited exceptions listed below can be satisfied.

· Unforeseeable Business Circumstances. A mass layoff or closing was the result of business circumstances that an employer deems were not reasonably foreseeable as of the time that notice would have been required.

· Faltering Company. The employer was actively seeking business or capital that, if obtained, would have enabled the employer to postpone or avoid the shutdown and the employer in good faith, reasonably believed that giving the WARN notice required would have precluded the employer from obtaining the needed capital or business.

· Natural Disasters. The mass layoff or closing was the result of a natural disaster, such as a flood, earthquake or a drought.

Employers should note that the New York Department of Labor (the “NY DOL”) has issued guidance stating that the NY WARN Act requirement to provide 90 days’ notice has NOT been suspended due to COVID-19. Consequently, the NY DOL has advised employers to provide the required WARN notices and include as much detailed information as possible to enable the NY DOL to determine if an exception under the NY WARN Act applies to the situation. Employers should also note that they will have to comply with the Federal WARN Act as well.

 



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New York Passes State-Wide Paid Sick Leave Law

New York State is among the ever-growing list of states and localities mandating that employers provide paid sick leave to employees.

Passed in April 2020, the New York State Labor Law was amended to require all employers, regardless of size, to provide annual sick leave to their employees.  The statewide sick leave law applies to all employers with employees in the state.  The law goes into effect on September 30, 2020 when employers must allow employees to start accruing paid sick leave, but employers are not obligated to allow use of sick leave until January 1, 2021.

The law requires:

  • Employers with 4 or fewer employees: must provide 1 hour of unpaid sick leave for every 30 hours worked, up to 40 hours of unpaid sick leave annually. However, if such an employer has net income of more than $1 million in the previous year, the leave must be paid.
  • Employers with between 5 and 99 employees: must provide 1 hour of paid sick leave for every 30 hours worked, up to 40 hours of paid sick leave annually.
  • Employers with 100 or more employees: must provide 1 hour of paid sick leave for every 30 hours worked, up to 56 hours of paid sick leave annually.

To determine an employer’s size under the law, a calendar year is defined as the 12-month period from January 1 to December 31. For the purpose of using and accruing paid or unpaid leave under the law, a calendar year means the 12-month period from January 1 through December 31, or a regular and consecutive 12-month period, as determined by an employer.

For purposes of the law, sick leave is defined broadly to include not only traditional sick leave usage, but also for reasons known as safe leave. The leave provided by the law is available for the following purposes:

  • For a mental or physical illness, injury or health condition of an employee or an employee’s family member, regardless of whether that condition has been diagnosed or requires medical care at the time the employee requests leave;
  • For the diagnosis, care, or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventative care for, an employee or an employee’s family member; and
  • For certain absences from work due to domestic violence, a family offense, sexual offense, stalking, or human trafficking, of an employee or an employee’s family member.

The law defines family member as an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, and the child or parent of an employee’s spouse or domestic partner. Parent is defined as a biological, foster, step- or adoptive parent, or a legal guardian of an employee, or a person who stood in loco parentis when the employee was a minor child. Child is defined as biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.

Employers may set a minimum increment for use of sick leave, which cannot exceed four hours. Unused sick leave must be carried over to the next calendar year, but employers may limit the amount of sick leave that may be used in a calendar year to 40 hours (employers with fewer than 100 employees) and 56 hours (employers with 100 or more employees). Additionally, employers are not required to pay an employee for unused sick leave upon their separation of employment.

Employers who intend to rely on their existing sick leave or paid time off policy should review their current policy to ensure it meets or exceeds all of the requirements of the new law.

Currently, there are only two jurisdictions in New York that have passed sick leave laws: New York City (with the New York City Earned Safe and Sick Time Act), and Westchester County (with the Westchester County Earned Sick Leave Law and Safe Time Leave Law). This new statewide law states that it does not preempt or diminish existing city- or county-level paid sick leave laws.  As such, employers in New York City and Westchester must continue to provide employees with leave that meets or exceeds the requirements of both the statewide and local laws.

The New York Department of Labor is expected to issue additional regulations and guidance prior to the effective date of the law.



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Unconscious Bias In The Workplace

The word “bias” has come up so much in the news today.  Add to that the word “unconscious” and one can see how we can have a problem with communication in our every day lives and in the workplace.

So what do we do about this, especially in the world environment we all live in today.  How do we identify and mitigate unconscious bias, especially in the workplace?

It has been studied and researched that 80% to 90% of the mind works unconsciously, meaning that the brains of even the most unbiased people still exhibit this tendency.  The effects of this most definitely are felt in the workplace despite all the efforts in training and legislation in the past years geared to educate employees on the value of respect in the workplace in areas of age, race, gender, sexual orientation, religion, socio-economic status and physical disabilities.  This bias, unfortunately, continues to impact hiring and employment promotions.

While there is no one foolproof way to identify unconscious bias, employers can help mitigate its effects by:

  1. Helping managers to focus on inclusivity and diversity in the conscious mind, helping to sharpen their ability to identify instances of intended and unintended bias in the workplace.
  2. Encouraging peer-to-peer recognition by publicly acknowledging and thanking fellow employees for their contributions in a public forum, i.e., conference room meetings, formal thank you notes, company publications, etc. This helps to foster a sense of connection, shared purpose and belonging among employees.
  3. Holding company-wide trainings. PMP has just developed a wonderful new Webinar series that is being offered to our clients on Unconscious Bias in the Workplace.
  4. Consciously assign diverse groups within your organization to address stereotype situations to view a situation through a different lens.
  5. Assigning diverse groups to work together to help achieve a common goal.
  6. Not being afraid to solicit honest feedback about the company’s efforts to foster a diverse and inclusive environment.

Once unconscious bias is recognized or brought to the attention of management in the workplace, communication and feedback are key to quickly address behaviors and remedy the situation.

A workplace free from unconscious bias is one where every employee, regardless of gender, nationality, race or sexual orientation is empowered to have a voice and feel respected.  This encourages a strong sense of belonging and employees will begin to feel comfortable bringing their true self to work.  Strategies and tools combined with HR programs will help create a positive work culture across teams and unlock positivity in the workplace. It will encourage celebrating employees for who they are and what they do.

Immediate attention must be given to any negative bias situation that arises in a company.  Quick response to a complaint and a rapid solution is paramount. It sends out the message to the entire company that unprofessional and biased behaviors will not be tolerated.  Issues must be addressed quickly or they will be left to fester and grow.  Managers must be trained to handle these situations in a rapid and professional manner.

Ultimately, the onus is on the business leader and manager to create a top-down cultural shift that encourages a broader awareness of unconscious bias across an organization.

Focusing on all categories across the board and the ability of these employees to do their job by making an effort to include everyone whether it be a person with a disability, a woman who has not yet held a certain position within your company or a minority who might have been left behind, will help to develop a sense of camaraderie and recognition among employees and make the workplace a more inclusive environment where all employees can thrive and grow.

There is no better way to develop a positive culture.  A positive culture needs to grow.  It does not happen overnight.  A successful, positive workforce always translates to a successful positive business.



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U.S. Department of Labor Issues New FMLA Forms and Notices

On July 17, 2020, the U.S. Department of Labor (DOL) issued new model notices and forms to be used by employers in the administration of the FMLA. The DOL anticipates these revised forms will increase compliance with the FMLA and make life easier, both for the health care providers who fill out the forms and for the employers who make decisions based on the information.  The changes will hopefully make it faster and easier to determine if the reason for leave is a serious health condition covered by the FMLA and reduce the need for employers to go through the time-consuming process of seeking additional, follow-up information from health care providers.

Among other things, the revised forms include fewer questions that require a written response.  Instead, such questions are replaced with statements that require the health care provider simply to check a box if the statement applies.  In the previous forms, health care providers provided narrative responses that sometimes failed to answer clearly the underlying question of whether the health care provider thought the employee had a serious medical condition.  By narrowing the scope of the information provided by health care providers, the DOL hopes the new forms will eliminate the need for this speculation and clarification.

The new forms also request additional valuable information through questions that actually encourage health care providers to explain not just the current treatment but potential future treatment as well (the current forms only focus on what has already been done to treat the patient).

These forms as well as the previous forms, are optional for employers to use as the FMLA does not require the use of any specific form or format.

Employers can use the following optional forms to provide the notices required under the FMLA.

  • General Notice, the FMLA poster – satisfies the requirement that every covered employer display or post an informative general notice about the FMLA. This notice can also be used by employers with eligible employees to satisfy their obligation also to provide FMLA general notice to employees in written leave guidance (e.g., handbook) or individually upon hire.
  • Eligibility Notice, form WH-381 – informs the employee of his or her eligibility for FMLA leave or at least one reason why the employee is not eligible.
  • Rights and Responsibilities Notice, form WH-381 (combined with the Eligibility Notice) – informs the employee of the specific expectations and obligations associated with the FMLA leave request and the consequences of failure to meet those obligations.
  • Designation Notice, form WH-382 – informs the employee whether the FMLA leave request is approved; also informs the employee of the amount of leave that is designated and counted against the employee’s FMLA entitlement. An employer may also use this form to inform the employee that the certification is incomplete or insufficient and additional information is needed.

There are five DOL optional-use FMLA certification forms.

Certification of Healthcare Provider for a Serious Health Condition

  • Employee’s serious health condition, form WH-380-E – use when a leave request is due to the medical condition of the employee.
  • Family member’s serious health condition, form WH-380-F – use when a leave request is due to the medical condition of the employee’s family member.

Certification of Military Family Leave

  • Qualifying Exigency, form WH-384 – use when the leave request arises out of the foreign deployment of the employee’s spouse, son, daughter, or parent.
  • Military Caregiver Leave of a Current Servicemember, form WH-385 – use when requesting leave to care for a family member who is a current service member with a serious injury or illness.
  • Military Caregiver Leave of a Veteran, form WH-385-V – use when requesting leave to care for a family member who is a covered veteran with a serious injury or illness.

All of the above forms can be found at https://www.dol.gov/agencies/whd/fmla/forms.

If you have any questions about the above please feel free to reach out to PMP for assistance.



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