Life moves fast in New York. From the crowded streets of Manhattan to the winding roads and sudden shifts in weather upstate, there’s little time to catch a break or catch a breath. To make it in the Empire State, businesses need to have grit, acuity, and the capacity to adapt to tough, ever-changing circumstances.
Those circumstances include the state’s rigorous workforce laws and regulations. New York has earned a reputation for far-reaching legislation and aggressive enforcement of rules surrounding employee health and safety, fraud, harassment, and more. For employers, noncompliance could lead to significant fines, litigation, and even criminal prosecution. Learn what you need to know to keep your people safe and stay on the right side of the law.
Jump to the latest New York HR and Workplace Compliance Regulations
New York COVID-19 State Regulations
Below is a round-up of COVID-19 state regulations for employers navigating how to operate safely during the pandemic. If you believe there may be a discrepancy between a state and local order that affects you or your business, you should contact your local government and/or competent local counsel for further advice.
UPDATED 3/4/21: Job Protections and Paid Sick Leave Now Extend to Vaccinations
Who: New York employers and employees
When: Effective Immediately
Update 3/12/21: Governor Cuomo signed Senate Bill S2588/A3354 which provides workers with paid time off to receive their COVID-19 vaccinations. The legislation amends New York Labor Law, providing that workers may receive up to 4 hours for each dose. This leave is on top of other types of paid leave provided to the employees. Employees must receive their regular rate of pay during that time period and are protected from retaliation or discrimination for asking for time off to get the vaccines.
Depending on the presence of a collective bargaining agreement, employees may be entitled to more paid leave to receive vaccinations. Certain parts of the legislation may be waived only if the collective bargaining agreement directly names this new provision in the New York Labor Law.
This law is effective immediately and will expire on December 31, 2022.
Update 1/29/21: New York Department of Labor released new guidance on January 20, 2021, about the use of COVID-19 Sick Leave. The clarifications include:
- Employees can qualify for COVID-19 Sick Leave for up to 3 orders of quarantine/isolation and no more than 3. The second or third use of the leave for quarantine or isolation, the employee must have either returned to work following the previous COVID-19 Sick Leave or have continued to have a positive COVID-19 test. The employee must submit documentation from a health care provider or testing facility that confirms the positive test.
- Employees who have been under a quarantine or isolation order don’t need to be tested before going back to work. If testing is done, an employee may be eligible for additional COVID-19 Sick Leave if the test is positive.
- If an employer requires an employee not come to work because of a potential exposure or actual exposure to COVID-19, the Department of Labor requires employer to pay the employee at the regular rate of pay until employee is allowed to return to work or the employee becomes eligible for COVID-19 Sick Leave.
Be sure to review your policies and procedures to ensure compliance with the new guidance.
Update 6/30/20: Executive Order 202.45 was issued to exclude employees who voluntarily travel to high-risk states after June 25 will not be eligible for paid sick leave benefits, unless the travel is for work-related reasons. View the press release.
To support employees that have been quarantined or isolated because of a COVID-19 government order, Governor Andrew Cuomo and the New York legislature have agreed to a bill that expands paid and unpaid leave for employees:
Employers with 10 or fewer employees as of 1/1/20 must provide unpaid sick leave until the quarantine/isolation order ends. These employees are eligible for the New York State Paid Family Leave and disability benefits during this time.
Employers with 10 or fewer employees as of 1/1/20 with a net income of $1 million or more in the last tax year, or employers between 11-99 employees as of 1/1/20, must provide at least 5 days of paid sick leave, followed by unpaid leave until the quarantine/isolation order ends. When the 5 days of paid leave are used, these employees are eligible for the New York State Paid Family Leave and disability benefits.
Employers with 100 or more employees as of 1/1/20 must provide at least 14 days of paid sick leave during the quarantine/isolation followed by unpaid sick leave until the quarantine/isolation order ends.
If the employee has taken personal travel to any country that the CDC declared a level 2 or 3 travel health notice, and, prior to travel, the employee was provided the health travel notice.
If the employee is still able to work under quarantine or isolation by teleworking and if the employee hasn’t been diagnosed with any medical condition is declared asymptomatic.
If an employee takes leave, they must be restored to their position when the leave is over, with similar pay. Employers can’t discharge, retaliate, or discriminate against employees that have used the protected leave.
Permanent Paid Sick Leave
The bill permanently amends the current New York Labor Law:
Employers with 4 or fewer employees are obligated to provide up to 40 hours of unpaid sick leave each calendar year.
Employers with 5-99 employees, or 4 or fewer employees with a net income of $1 million or more in the last tax year, are obligated up to 40 hours of paid sick leave each calendar year.
Employers with 100 employees or more are obligated to provide up to 56 hours of paid sick leave each calendar year.
Beginning on the first day of employment, each employee must accrue sick leave at a rate of not less than 1 hour for every 30 hours worked. Employers can frontload all of the required sick leave to employees.
Employers should set reasonable time increments for how employees can use sick leave, not exceeding 4 hours. Unused sick leave carries over to the next calendar year, keeping in mind that the employers with less than 100 employees can limit the sick leave to 40 hours per calendar year and employers with 100 employees or more can limit the sick leave up to 56 hours per calendar year. Employers don’t need to pay an employee for unused sick leave when they’re separated from employment.
Reasons for using sick leave
Mental or physical illness, injury, or condition of the employee or a family member, no matter if there is a diagnosis or medical care required at the time of the request.
For the diagnosis, care, preventive care, or treatment of a mental or physical illness or injury of the employee or a family member.
Incidents related to domestic violence, sexual offense, stalking, or human trafficking where the employee needs to miss work.
Assess and review your current business outlook and work with your legal counsel as you make decisions regarding employment.
Review and update your current sick leave policies and procedures, which may include payroll, to accommodate the permanent changes made to sick leave.
Governor Andrew Cuomo Announce Three-Way Agreement with Legislature on Paid Sick Leave Bill to Provide Immediate Assistance for New Yorkers Impacted by COVID-19
UPDATED: Face Coverings Mandate and Capacity Limits End
Update 6/6/21: On May 19, 2021, the state adopted the CDC’s federal guidance, “Interim Public Health Recommendations for Fully Vaccinated People.” In most settings, fully vaccinated people may now go without masks, exceptions include public transportation, shelters, correctional facilities, and health care settings. Businesses may choose to continue to require masks in their workplaces, as long as they adhere to all federal and state laws and regulations. It is recommended that unvaccinated people wear masks.
Regarding capacity limits: The previous limits have been lifted, businesses only need to limit space for people to maintain social distance if there are unvaccinated people or people whose vaccination status is unknown.
Under Executive Order 2020.16, essential businesses must provide employees with face coverings until at least May 12, 2020. Until May 15, 2020, all state residents must wear a face mask in public and on public or private transportation.
Update 6/9/20: Executive Order 202.34 issued to allow business operators to refuse guests who are not wearing face coverings.
New York What You Need to Know
Interim Guidance on Executive Order 202.16
Interim Guidance on Executive Orders 202.17 and 202.18
Understanding Unemployment Insurance for New York Employers
The Department of Labor issued the Unemployment Insurance (UI) Program Letter No. 15-20 to help employers understand UI benefits as they relate to COVID-19, the Federal Pandemic Unemployment Compensation Program, and the federal CARES Act.
The document also outlines the impact of UI benefits on part-time employees, receive severance, or receive vacation payouts. When terminating or furloughing an employee, employers must provide Form IA 12.3 to help the worker apply for unemployment.
New York Guide About COVID-19 Testing, Quarantine, Monitoring
Who: New York employers and residents
When: Effective Immediately
What: Governor Andrew Cuomo released an “Interim Containment Guidance: Precautionary Quarantine, Mandatory Quarantine and Mandatory Isolation for Local Health Departments” to define the above categories and what shelter requirements are necessary for each category. The guidance also gives authority to Local Health Department if it feels its jurisdiction requires additional restrictions, visitations, or additional resources.
For employers, any individual who is under any level of quarantine or isolation is protected from any negative impact on their employment. At the beginning and end of a quarantine/isolation, Local Health Department Commissioners or Public Health Directors can address these concerns. Employers can also contact the New York State Department of Labor.
Mandatory Quarantine. Any person who has been within 6 feet of someone who has tested positive for COVID-19 and not displaying symptoms, or a person who has traveled to China, Iran, Japan, South Korea, or Italy and is displaying symptoms of COVID-19.
Mandatory Isolation. Any person who has tested positive for COVID-19, regardless of whether or not the person is displaying symptoms of COVID-19.
Precautionary Quarantine. Any person who meets one or more of the following criteria:
- Has traveled to China, Iran, Japan, South Korea, or Italy while COVID-19 was prevalent but isn’t showing symptoms;
- Has had proximate exposure to a positive person, but not direct contact with a positive person and is not displaying symptoms. Local Health Departments can also place any person under a precautionary quarantine if it is warranted.
Provide support to your employees during this time and make yourself available to answer their questions and concerns about their work functions under quarantine or isolation.
Consult with your legal counsel to ensure any changes you have to make to a worker’s employment status are compliant with state rules.
Interim Guidance for Public and Private Employees Returning to Work
New York Industries Reopening Phase Three Guidance
Phased Plan to Reopen New York
New York State Guide To Determine Whether A Business is Subject to Workforce Reduction Under Executive Order 202.6
New York HR and Workplace Compliance Regulations
Below is a round-up of new and changing state regulations for employers navigating workforce-related policies and procedures. Although we have provided some information and recommendations, you should contact your legal counsel for further advice.
New York Issues Guidance on Cannabis Use in the Workplace
Who: New York employers
When: Effective immediately
What: On October 19, 2021, New York released a guide titled “Adult Use Cannabis and the Workplace,” which clarifies the purpose of the Marijuana Regulation and Taxation Act (MRTA) and answers frequently asked questions about its implementation on the job. MRTA was enacted on March 31, 2021, which amended the New York Labor Law Section 201-D and legalized the recreational use of marijuana outside of the workplace.
The law prohibits employers from discriminating against an employee who uses cannabis lawfully while off-duty and off-premises, as long as they are not using employer equipment or property at the time. It also prohibits employees from using, possessing, selling, or distributing marijuana in the workplace, as well as anywhere that prohibits smoking tobacco products.
The recent guidance reiterates and clarifies some key points for employers:
- Employers may not test employees for marijuana unless it’s permitted by law.
- Employers may not use a positive marijuana test to conclude that the employee was impaired.
- The smell of marijuana alone is not sufficient evidence of “articulable symptoms of impairment.”
- Breaks, meal periods, and on-call hours are considered “work hours,” even if spent offsite.
- Employers may take employment action based on marijuana use if:
- It is required by law;
- Inaction would violate federal law;
- Inaction would result in loss of a federal contract or federal funding;
- The employee possesses or consumes marijuana while on the job; or
- An employee shows objectively observable indications that their performance of essential duties or tasks is decreased due to cannabis impairment OR that cannabis impairment has interfered with the employer’s obligation to provide a safe and healthy workplace as required by workplace safety laws.
- The law applies only to employees physically working in the state of New York.
- The law does not entitle employees who were previously terminated because of marijuana use to reinstatement.
Employers are not required to create their own marijuana-use policy, but they may choose to do so. Employers are also not required to take action against employees for marijuana use prohibited by the law.
- Ensure that your drug-use policies and employee handbook comply with New York Labor Law Section 201-D, and notify employees of any changes.
New York Labor Law Section 201-D
Adult Use Cannabis and the Workplace New York Labor Law 201-D
New York Increases Minimum Wage
Who: New York employers
When: Effective December 31, 2021
What: New York’s minimum wage will increase as of December 31, 2021, as follows:
- For Nassau, Suffolk, and Westchester counties, it will be $15.00 per hour.
- For the remainder of the state outside of New York City, it will be $13.20 per hour.
For fast-food workers statewide, the minimum wage increased to $15.00 on July 1, 2021. For tipped employees in Nassau, Suffolk, and Westchester counties, the minimum wage and tip credit will increase on December 31, 2021, as follows:
- Food service workers: $10.00 cash with $5.00 tip credit per hour
- Service employees: $12.50 cash with $2.50 tip credit per hour
The minimum salary levels for exempt employees will increase on December 31, 2021, as follows:
- For Nassau, Suffolk, and Westchester counties: $1,125 per week ($58,500 annually)
- For the remainder of the state outside of New York City: $990 per week ($51,480 annually)
- Ensure that your employees’ minimum wage reflects the required increase by December 31, 2021.
- Monitor for release of the new minimum wage poster and post when available.
UPDATE 7/12/21 HERO Act: Model Standards Published, 30 Days to Adopt a Plan
On July 6, 2021, the New York State Department of Labor (NSYDOL) released the Airborne Infectious Disease Exposure Safety Standard as a model document as well as industry-specific standards to help employers who need comply with the HERO Act.
Employers have until August 5, 2021 to adopt a written airborne infectious disease exposure prevention plan. They can choose to adopt the NYSDOL’s model standards or develop their own that meet the minimum requirements established in the state’s standard. A couple of things to note in the program:
- When developing the prevention plan, only supervisors may be selected as the responsible person for overseeing compliance.
- Where present or applicable, a union or collective bargaining agreement should be involved in developing the prevention plan.
Once adopted, employers have another 30 days to distribute the plan to employees, any future new hires, and upon request. This timeline means that employers have until September 5, 2021, to distribute the prevention plan. The prevention plan must also be displayed in a prominent location in the workplace and provided in the employee handbook.
- NOTE: Vera Suite users can access the state’s model plans and upload their own plans into Vera Suite.
The plans don’t need to be implemented or enforced until the New York Commission of Health designates a disease or infectious agent as a public health risk, or outbreak. Once the public health risk is declared, the employer must provide employee training on the prevention plan and infectious disease.
In the event of an outbreak, employee training should cover the following areas:
- General awareness (including information about the infectious disease like signs, symptoms, how its spread, how/where it could be contract at the workplace, and exposure controls)
- Stay-at-home policy
- Health screenings
- Face coverings
- Physical distancing
- Cleaning, disinfecting, and hand hygiene
- Respiratory etiquette (sneezing, coughing, etc.)
- Special accommodations
- Employees’ rights
What Should You Do?
- Review the model standards and determine what kind of prevention plan will work best for your business.
- By August 5, 2021, adopt a written airborne infectious disease exposure prevention plan.
- By September 5, 2021, distribute the plan to employees, post the plan in a prominent place, and update your employee handbook.
June 11 Amendments:
On June 11, 2021, Governor Cuomo signed several amendments to the New York Health and Essential Rights (HERO) Act. It stemmed from the COVID-19 pandemic and seeks to prevent current and future exposure to airborne infectious diseases at work.
Among the amendments was a change to the law’s effective date to July 5, 2021, to give the New York Department of Labor (NYDOL) more time to create and publish industry-specific and model Infectious Disease Exposure Prevention Standards and clarify when employers must implement the required plan.
When Do You Need to Have a Safety Plan in Place? Once the NYDOL publishes industry-specific safety standards, employers have 30 days to implement their own airborne infectious disease prevention plan either by:
- Using the model safety standard from the NYDOL, or
- Developing an alternative safety plan that is equal to or greater than the minimum standards published in the model safety standard.
The person responsible for overseeing compliance and implementation of the employer’s prevention plan must be an employee in a supervisor position.
Airborne Infectious Disease Prevention Plans Notice & Training Requirements:
- Employers in business as of July 5, 2021, must provide their plan (whether it’s the model safety standard or an alternative plan) to employees within 60 days of the date that the NYDOL publishes the model safety standards or within 30 days after the employer adopts the prevention plan.
- All new hires, current employees, temporary workers, and contractors must receive the safety plan.
- The safety plan must be posted in the workplace.
- Include the safety plan in your employee handbooks, if applicable.
- In the event the business closes and then reopens due to an airborne infectious disease, employers are required to provide the safety plan to employees within 15 days of reopening.
Liability. Starting July 5, 2021, employers will be liable for any discrimination or retaliation against employees who report concerns related to airborne infectious diseases or HERO Act safety standards. Employees taking action against an employer under the HERO Act must provide the employer 30 days of notice and the chance to address the alleged violation unless the employer demonstrates bad faith or unwillingness to fix the issue(s).
Definitions. The definition of “worksite” was amended to exclude telecommuting and/or telework sites. Under this law, an “employee” continues to be defined as “any person providing labor or services for remuneration for a private entity or business within the state, without regard to an individual’s immigration status.” This definition means that part-time workers, independent contractors, domestic workers, home care and personal care workers, day laborers, farmworkers, and other temporary and seasonal workers are covered.
Safety Committee Amendments. An organization’s safety committee has the authority to raise any issues about workplace policies or procedures that are related to the HERO Act’s occupational health and safety provisions. For employers with 10 or more employees, there may only be one safety committee per worksite and you can leverage an already existing safety committee. Meetings are limited to a maximum of 2 hours. Training your safety committee members is limited to a maximum of 4 hours. The safety committee effective date remains November 1, 2021.
What Should You Do?
- Continue to monitor and prepare for the industry-specific and model Infectious Disease Exposure Prevention Standards. KPA will do the same.
- Review your current prevention plans and ensure they align with the state’s most recent guidance.
- If you have a collective bargaining agreement, work with legal counsel to determine how the HERO Act and its amendments will impact that agreement.
Governor Cuomo Signs First-in-the-Nation NY Hero Act into Law (Press Release)
HERO Act Background When It Was First Signed Into Law
Who: All employers in New York and any primary or secondary location where work is performed (including employer-provided transportation and housing)
When: Effective June 4, 2021, November 1, 2021, safety committee must be in place.
What: The New York Health and Essential Rights (HERO) Act was signed by Governor Cuomo on May 5, 2021. The law incorporates similar protections used during the COVID-19 pandemic, but its aim is to protect employees from future pandemics by requiring employers to implement a model airborne pathogens safety plan that can be adapted for future events.
Airborne Infectious Disease Safety Standards. The HERO Act requires the New York State Department of Labor (DOL) and New York State Department of Health (DOH) develop industry-specific airborne infectious disease standards that all employers must use. The standards will address the procedures for the following:
- Health screenings
- Face coverings
- Required personal protective equipment at the employer’s expense
- Hand hygiene stations and maintaining healthy hand hygiene (as well as break times to wash hands)
- Regular cleaning and disinfecting of shared and frequently used workspaces and equipment
- Social distancing measures
- Compliance with quarantine and isolation measures
- Compliance with air flow, exhaust, and other engineering controls
- Safety program enforcement measures
- Legal compliance measures
- Training and verbal review of the infectious disease standard, policies, and employee rights
Airborne Infectious Disease Prevention Plan. The Act requires the DOL and DOH also create a model Airborne Infectious Disease Exposure Prevention Plan that employers have the option to adopt or develop and implement their own, provided they meet at least the minimum requirements.
There are several notice requirements including providing the Prevention Plan after a closure due to an airborne infectious disease and upon hire. They must also provide the plan to their employees in English or the language the employee uses as a primary language.
The Plan must also be visibly posted at worksites, included in an employee handbook, and provide it upon request.
Anti-Discrimination/Retaliation. The Act also prohibits any retaliation and discrimination if employees report violations of the Act, exposure concerns, or refuse to work if the work provides an unreasonable risk of exposure and the employee raised these concerns with their employer.
Civil Suits. Employees may take civil action against non-compliant employers, unless the employer can provide good faith efforts to comply with the standard. If the civil suit is deemed frivolous, employers may seek action against the employee or party that brought the original civil action.
Penalties. Not complying with the Act could result in civil penalties, of up to $20,000 for failing to implement a compliant Prevention Plan for not complying with a plan.
Safety Committees. Starting November 1, 2021, employers with at least 10 employees may form a workplace safety committee made up of employee and employer designated people, two-thirds of which can’t be supervisors. Co-chairs must be established, made up of one employer representative and a non-supervisory employee. If there’s a collective bargaining agreement in place, that representative must choose the employees who serve on the safety committee.
Safety Committees have the authority to:
- Bring up health and safety concerns
- Review and give feedback on any workplace policies that fall under HERO Act requirements
- Review the adoption of any policy that is a response to a health and safety law, ordinance, rule, regulation, executive order, or other government directive
- Participate in any regulatory inspections
- Review any related health and safety reports filed the employer
- Meet regularly during working hours at least once/quarter
- Attend trainings on safety committee functions, rights, and general environmental health and safety topics
Employers are prohibited from interfering with the selection of the employee representatives on the committee.
What Should You Do?
- Continue to monitor for guidance from the DOL and DOH regarding industry-specific standards
- With the expectation that there will be additional amendments to this Act, continue to monitor the news for more information on new or changing rules and effective dates
- Begin to plan and determine how to identify and form your Safety Committee
- Consult with your legal counsel on your plans and how to implement the employer requirements.
Governor Cuomo Signs First-in-the-Nation NY Hero Act into Law (Press Release)
Effective August 9: New York City Requires Employers to Offer a Retirement Plan
Who: Private New York City employers who do not offer a retirement plan and have five or more employees
When: Effective August 9, 2021, with program to be implemented within two years
What: The New York City Council passed legislation on May 11, 2021, that creates a mandatory IRA program for private-sector employees. It applies to private-sector businesses that have five or more employees and do not currently offer a retirement plan. The plan will be portable, which means the employee can continue to contribute to it when they switch jobs, or they may roll it into other retirement plans.
The plan is an auto-enrollment, payroll-deduction program that defaults to a rate of 5% of the employee’s pay up to the annual IRA maximum of $6,000 (or $7,000 for people 50 and older). To be eligible for the program, employees must be at least 21 years old and work at least 20 hours per week. Employees can opt out or adjust their contribution up or down at any time. Employers must administer the plan but they do not have to contribute to it.
The City will create a retirement savings board to implement the program. The bill takes effect August 9, 2021, but the board has up to two years to implement the program.
- Prepare to comply with the requirements of the program once it has been implemented.
Effective July 4: New York City Expands Fair Workweek Law
Who: New York City fast food employers
When: Effective July 4, 2021
What: On January 5, 2021, New York City Mayor de Blasio signed Int. No. 1415-A and Int. No. 1396-A into law, which become effective July 4, 2021. The new laws provide significant protections for fast food employees through “Just Cause” provisions and revision of the at-will employment system.
After an employee has completed a probationary period of 30 days, a fast food employer may not take certain actions against an employee without just cause. Those actions include discharge, reducing hours by 15% of the regular schedule, reducing hours by 15% of any weekly work schedule, or indefinitely suspending the employee. Just cause is defined as the employee’s “failure to satisfactorily perform job duties” or misconduct that is “demonstrably and materially harmful” to the employer’s business interests.
The law specifies five factors that determine whether the discharge or reduction in hours was actually just cause, such as whether the employer provided relevant and adequate training. Within five days of terminating an employee, the employer must write an explanation of the “precise reasons” they fired the employee. That explanation will be the sole basis of supporting the decision to terminate, should the decision ever be challenged.
If the employer discharges an employee, reduces their hours by 15% or more, or indefinitely suspends an employee on economic grounds, there must be a “Bona Fide Economic Reason.” That reason is defined as “the full or partial closing of operations or technological or organizational changes to the business in response to a reduction in volume of production, sales, or profit.” The organization must keep records that demonstrate such a reduction in production, sales, or profit. When reducing workforce based on a bona fide economic reason, the employer must lay off employees in order of least seniority first and most seniority last. Seniority is based on length of service as laid out in the new law.
If the employer recovers and has additional work available, they must attempt to rehire or restore hours to employees who were laid off in the last 12 months before giving shifts to existing employees or hiring new workers. They must rehire in order of most seniority first.
Aggrieved existing or former employees may bring a civil action against the employer, or, after January 1, 2022, file an arbitration proceeding. If found guilty of a violation, an employer may have to pay civil fines, back pay, compensatory damages, costs of the proceeding, and/or the employee’s costs related to the proceeding; reinstate or restore hours to the employee; or be subject to other equitable relief. Employees can bring an action for up to two years after the alleged violation.
The new law also modifies existing requirements for providing good faith estimates of hours and schedule. Now, fast food employers must give their employees a regular schedule that consists of predictable, regular, recurring weekly shifts each week. A corollary is that employers can no longer reduce an employee’s hours by more than 15% as compared to the highest total hours in the regular schedule for the preceding 12 months. These changes give employees more stability and protect them from having their hours cut due to seasonal demand.
- Review your policies and procedures and update as needed.
- Monitor the NYC Consumer and Worker Protection website for updated posters and materials.
- Post the new the notification poster once it has been updated.
NYC Consumer and Worker Protection Fast Food and Retail Workers
Int 1396-2019 Version: A (Economic Condition Layoffs)
Int 1415-2019 Version: A (Just Cause)
Effective July 19: New York City Biometrics Law Goes Into Effect
Who: New York City commercial establishments
When: Effective July 9, 2021
What: Effective July 9, 2021, New York City’s biometric privacy ordinance requires businesses to notify customers and potential customers that they are collecting biometric identifier information (if applicable). In addition, businesses may not sell, lease, trade, or share biometric information in exchange for anything of value or otherwise profit from its transaction.
Biometric identifier information is defined as a physiological or biological characteristic used to identify an individual, including, but not limited to a retina or iris scan, a fingerprint or voiceprint, and a scan of hand or face geometry. A customer is defined as someone who is purchasing or leasing, or may purchase or lease, goods or services from a commercial establishment. A commercial establishment is defined as a place of entertainment, a retail store, or a food or drink establishment.
Exceptions to the law include government agencies, employees, and agents. It also excepts financial institutions, but just from the signage requirement.
The City will publish a notice that meets the requirements for the notification that a business is collecting customers’ biometric information. Employers must post a copy of this notice, or one similar, at all commercial entrances.
Aggrieved individuals may file a private right of action if an alleged violation occurs. A business has 30 days to cure a violation of the requirement to place a clear and conspicuous notice at their establishment. If they do not, an individual may sue and potentially be awarded $500 for each violation. If an individual alleges that the business shared biometric information for profit, the person may sue without notice to the business and may recover $5,000 per violation.
- Evaluate your practices regarding collection and dissemination of biometric identifiers.
- Once published by New York City, post the notice at all commercial entrances (if applicable).
Effective July 28: New York City Expands Its Ban the Box Law
Who: New York City employers
When: Effective July 28, 2021
What: Int. No. 1314-A goes into effect on July 28, 2021 and amends New York City’s existing Fair Chance Act (FCA) to provide further protection to people who are accused or convicted of a crime. The law prohibits employers from taking adverse employment actions on the basis of an employee’s conviction during employment unless the employer takes certain steps. Employers must use the criteria in the FCA to evaluate the relationship between the crime and the nature of the job. To take adverse action, the employer must determine that there is a direct relationship, or that continued employment carries unreasonable to risk to people or property.
The amendments extend FCA protection to employees and job applicants who have pending criminal charges or arrests. Employers must complete the same evaluation process as described above. And any time an employer completes such an evaluation, they are required to solicit information on all FCA factors.
The amendments also prohibit employers from considering arrests or accusations that don’t result in conviction or are no longer pending, as well as violations as defined by New York Penal Law or convictions of non-criminal offenses as defined by a law of another state. An employer may not even inquire about the last two types—violations and non-criminal offenses.
Lastly, the amendments specify that an employer may take adverse action if the applicant or employee misrepresents their criminal background, but only if the inquiry was lawful in the first place, they give the applicant/employee a copy of the supporting documentation, and they give the person a chance to respond.
The New York City Commission on Human Rights plans to release additional guidance and information on the amended law.
- Consult with an employment attorney as needed to ensure compliance with the amended law.
- Review your employment application forms and hiring and background check policies and procedures. Update them as needed.
- Train managers and HR personnel on the amendments to the law.
Recreational Marijuana Legalization Enacted
Who: New York businesses
When: Effective immediately, sales aren’t expected to begin until 2022
What: Governor Andrew Cuomo signed the Marijuana Regulation and Taxation Act (MRTA) on March 31, 2021, legalizing and protecting the recreational use of marijuana, outside of the workplace. Under MRTA, anyone over the age of 21 may legally possess up to 3 ounces of marijuana.
The Cannabis Law prohibits employees from using, possessing, selling, or distributing marijuana in the workplace, as well as anywhere that prohibits smoking tobacco products.
Employers can’tterminate, discriminate against, or refuse the hire of someone because of their legal use of marijuana when off-site and outside of business hours, which falls under section 201-D of New York Labor Law. Working hours include paid and unpaid breaks and mealtimes.
Employers may take action against an employee, whether through disciplinary or discharge, if they are impaired by marijuana while they are working. Employers may prohibit the employees from being impaired during working hours. The law doesn’t give specifics on what qualifies as impairment, naming it only as “specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position.” Employers that are subject to federal or state laws that prohibit employing workers who use marijuana may take action against employees using the drug.
Drug testing workers and job applicants is still allowed, although it should be noted that employers can’t refuse to hire job applicants because of their marijuana use. With legal recreational use, it will be difficult for employers to use positive test results as a reason for discipline or discharge, although it may be valuable when making determinations about an employee’s symptoms at work.
Medical marijuana users will still be classified under a “disability” per the New York Human Rights Law. The MRTA states that workers who use medical marijuana should be given the same rights, procedures, and protections as injured workers under the workers’ compensation law.
What Should You Do?
- Review and revise your hiring, drug use, and drug testing policies and procedures to comply with the new law. Seek legal counsel to help ensure that your policies and procedures are compliant.
- Update and train your supervisors and managers about the changes, how it impacts your organization, and the updated policies and procedures.
New York Labor Law Section 201-D
Governor Cuomo Signs Legislation Legalizing Adult-Use Cannabis (Press Release)
Effective Immediately: New York City Issues Final Rule on Hairstyle Discrimination
Who: New York City employers
When: Effective immediately
What: On January 30, 2021, the New York City Commission on Human Rights law issued a Final Rule that amends Title 47 of the Rules of the City of New York. The Final Rule clarifies that protection from discrimination extends to hair textures, hairstyles, hair length, and use of head coverings associated with race, creed, or religion. The Rule specifically states that policies based on “customer preference,” a perception of a hairstyle as “unprofessional” or “a distraction,” or an assertion that the hairstyle is inconsistent with the organization’s “image” are not acceptable.
The Final Rule states factors that will be considered when establishing whether an employer’s claim of a “legitimate health or safety concern” is a valid defense against a discrimination claim, including:
- The nature of the stated health or safety concern;
- Whether the restriction or prohibition is narrowly tailored to address the concern;
- The availability of alternatives to the restriction or prohibition; and
- Whether the restriction or prohibition has been applied in a discriminatory manner.
It also gives several examples of illegal discrimination, with emphasis on the fact that there must be a legitimate undue hardship on the employer in order to justify the exception.
- Review your existing dress code, grooming policies, and anti-discrimination policies to ensure they are in accordance with the Final Rule.
- Update your HR manual and employee handbook as necessary.
- Consider training your managers, supervisors, and recruiters on the new law.
NYC Commission on Human Rights Legal Enforcement Guidance on Race Discrimination on the Basis of Hair
January 1: New York State Increases Paid Family Medical Leave Benefits
Who: All New York State employers
When: Effective January 1, 2021
What: New York State is increasing the benefits under the Paid Family Medical Leave as of January 1, 2021. The maximum number of weeks of leave is increasing, as well as employee contributions and the amount of weekly benefits. For qualified employees, the maximum number of weeks allowed for leave increases from 10 to 12. The weekly benefit increases to up to 67% of the employee’s weekly wage and is capped at $971.61 per week for 2021. The 2021 payroll contribution will be 0.511% of an employee’s wages each pay period, capped at an annual maximum contribution of $385.34.
- Work with HR and payroll personnel to plan for the new payroll contribution amounts.
- Update your HR Manual and employee-facing documents as necessary to accommodate the new dollar maximums and the 12-week maximum leave period.
2021 Paid Family Leave Statement of Rights Poster (English)
2021 Paid Family Leave Statement of Rights Poster (Spanish)
Employee Notice of Paid Family Leave Payroll Deduction for 2021
Model Language for Employee Materials
New York Paid Family Leave Updates for 2021Paid Family Leave Information for Employees
January 1: Employees Able to Take Leave Under New York State Paid Sick and Safe Leave
Who: New York State private employers
When: Effective January 1, 2021
What: The New York State Paid Sick Leave Law, which requires all employers to provide sick and safe leave, took effect on September 30, 2020. Whether the leave is paid or not depends on the size of the employer, both in terms of the number of employees and level of net income. Employees may begin taking sick leave on January 1, 2021.
- Review the New York Paid Sick Leave FAQs.
- Review your sick leave policies to ensure they are in compliance with the law.
- Consult legal counsel with additional questions or concerns.
New York State Paid Sick Leave FAQ
New York Paid Sick Leave Overview
January 1: New York City Paid Sick and Safe Law’s Phase 2 Takes Effect
Who: New York City employers
When: Effective January 1, 2021
What: On September 28, 2020, New York City amended its Earned Safe and Sick Time Act to be in alignment with the New York State Paid Sick Leave Law that took effect on September 30, 2020. All employers must provide sick and safe leave. Whether the leave is paid or not depends on the size of the employer, both in terms of the number of employees and level of net income.
The Phase 2 amendments that are effective January 1, 2021 require:
- Employers with 100 or more employees to provide up to 56 hours of paid safe and sick leave each calendar year
- Employers with four or fewer employees and a net income of $1 million or more to provide up to 40 hours of paid sick leave per year
Employees may begin taking sick leave January 1, 2021, and employers must provide employees with the amount of available paid sick leave each pay period.
Employers must provide employees with the Notice of Employee Rights: Safe and Sick Leave Poster under the law and post by January 1, 2021. Employers must give new employees a notice of their rights under the law at the time of hire.
- Post the Notice of Employee Rights: Safe and Sick Leave Poster and provide it to current employees by January 1, 2021.
- Provide the Notice of Employee Rights: Safe and Sick Leave Poster to new employees upon hire.
- Analyze your current sick leave practices and policies to ensure compliance with the New York State Paid Sick Leave Law and the New York City Paid Safe and Sick Leave Act.
New York City Earned Safe and Sick Time Act
Notice of Employee Rights: Safe and Sick Leave Poster (English | Spanish)
Notice of Employee Rights Under Paid Safe and Sick Leave Law
Information for Workers on Paid Safe and Sick Leave
Paid Safe and Sick Leave: What Employers Need to Know