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.
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.
Face Coverings Mandate
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.
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.
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.
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.
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.
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.
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.