President-elect Joseph R. Biden Jr. and Vice President-elect Kamala Harris will be sworn in on January 20, 2021, signaling the official change in administration. Employers can certainly expect to see a shift in the direction of federal labor and employment laws. Already, Biden’s recent appointment of Marty Walsh, a union official, to Secretary of Labor, signifies a new era in NLRB activity and pro-employee and pro-union labor laws. Further, the DOL and EEOC are bound to be more aggressive in undertaking many initiatives overlooked by the Trump Administration.
Federal labor and employment laws aside, New York employers should be reminded of new state laws for 2021. Here are just a few of the highlights.
- Eligible employees in New York can now start taking the paid sick leave they began accruing in September 2020;
- COVID-19 leave under the federal Families First Coronavirus Response Act (FFCRA) expired, but New York’s COVID-19 leave law remains in effect;
- The New York City Fair Chance Act was amended in several respects, and now regulates how an employer can respond to a conviction that occurs while someone is working for them, making it harder for New York employers to terminate based on criminal history.
- COVID-19 is considered a protected class in New York City; and
- Employees have more opportunities for time off with New York State Paid Family Leave benefits increasing to 12 weeks.
New York State Paid Sick Leave (PSL)
We had previously written about the New York Paid Sick Leave Law—as of January 1, 2021, New York employers are required to provide their workers with sick leave, which employees began accruing on September 30, 2020.
The amount of leave depends on the size of the employer, but covers EVERY employer:
- Employers with 100 or more employees must provide 56 hours or 7 days of paid sick leave per calendar year.
- Employers with between 5 and 99 employees must provide 40 hours of paid sick leave per calendar year.
- Employers with 4 or fewer employees and a net income of 1 million dollars in the previous tax year must provide 40 hours of sick leave, if net income is LESS than $1 million dollars in the previous tax year, you must provide 40 hours of unpaid leave.
Under the new sick leave law, employers must provide accrued sick leave for the following purposes:
- For a mental or physical illness, or health condition of an employee or an employee’s family member, regardless of whether the illness, injury, or health condition has been diagnosed or requires medical care at the time the employee requests the 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; or
- For an absence from work for the following reasons due when the employee or employee’s family member has been a victim of domestic violence, a family offense, sexual offense, stalking or human:
i. to obtain services from a domestic violence shelter, rape crisis center, or other services program;
ii. to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members;
iii. 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;
iv. to file a complaint or domestic incident report with law enforcement;
v. to meet with a district attorney’s office;
vi. to enroll children in a new school; or
vii. 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).
New York State issued guidance on PSL in a 7-page FAQ, which we previously summarized here.
New York City Earned Safe and Sick Time Act Amendments (ESSTA)
On September 28, 2020, Mayor Bill de Blasio signed legislation amending New York’s Paid Safe and Sick Time Act to align with the New State Paid Sick Leave law.
According to the amendments, which were effective September 30, 2020:
- Employers with 4 or fewer employees must now provide up to 40 hours of paid sick leave per calendar year, if their net income was greater than $1 million dollars in the previous tax year; and employers with 100 or more employees will now be required to provide up to 56 hours per calendar year of paid safe and sick time leave.
- Employees are no longer required to work 80 hours within New York City to be eligible for safe and sick leave.
- Employers must provide employees with pay statements or a separate writing each pay period that includes the amount of sick and safe leave accrued and used by the employee during the pay period, and the employee’s total balance of sick and safe leave.
- Employers that require documentation from their employees after using 3 or more consecutive days of safe and sick leave must now reimburse the employee for all fees charged by a health care provider or other provider for providing the documentation.
- There is a list of adverse actions that employers are prohibited from taking in response to employees’ use or attempted use of safe and sick leave, which includes any disciplinary action taken against an employee, or action that may deter an employee from taking leave.
New York City Fair Chance Act Amendments (FCA)
On December 10, 2020, the New York City Council passed legislation expanding employment protections under the New York City Fair Chance Act (the “ban-the-box” law) for applicants and employees with criminal charges or arrests. The law is to take effect on or about July 28, 2021.
As a reminder, the FCA requires employers to consider 8 factors to decide whether a job applicant’s criminal conviction history directly relates to the job applied for, or if the applicant would create an unreasonable risk to property, persons, or the general public, if hired. The FCA also (i) prohibits inquiries concerning a job applicant’s criminal history until a conditional offer of employment has been made, (ii) requires employers to provide the job applicant with a notice and written analysis of the eight FCA factors, and (iii) provides the applicant with 3 business days to respond before a conditional offer of employment can be withdrawn.
The FCA amendments create the following new requirements for employers:
- Before a conditional offer may be withdrawn, or a current employee adversely affected on the basis of a pending criminal charge, arrest, or accusation, an employer must individually assess the relevance of the alleged criminal conduct using 7 factors similar to the 8 FCA factors. Employers must provide a notice setting forth the substantive basis for any disqualification based on a pending criminal matter and review any responsive information timely submitted by the applicant or employee.
- In addition to the required pre-employment analysis, the FCA job-related analysis applies to criminal convictions arising during employment.
- It is unlawful to either make any inquiry about non-pending arrests or criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications or sealed offenses, when such an inquiry would violate the New York State Human Rights Law. Currently, the FCA prohibits denying employment on these bases, but does not prohibit inquiries about such information.
- Employers are prohibited from inquiring about, or denying employment based on, violations and non-criminal offenses (excluding an applicant’s motor vehicle record).
- The FCA amendments also codify the existing rule that an employer can only revoke a conditional offer based on criminal history after all other screening and background checks have been completed.
New York City Considers COVID-19 a Protected Class
As per the New York City Commission on Human Rights, “Harassment and discrimination on the basis of race, national origin, age, and disability (including having COVID-19 or another serious illness) is illegal under the New York City Human Rights Law. In recent months, we have seen a sharp increase in instances of hostility and harassment directed at Chinese and other Asian communities related to COVID-19 anxiety.” (emphasis added).
The Commission also previously provided guidance that it is unlawful for an employer to harass or discriminate against an employee based on a belief that a worker contracted, or is more likely to contract, COVID-19 as a result of their race, national origin or other protected status.
Minimum Wage Increases
Effective December 31, 2020, the minimum wage, tip credit and minimum salary levels in New York increased for many employers. Increases are dependent on the employer’s location. There will be no increase to the minimum wage or minimum salary levels for employers in New York City who are already required to pay their employees $15 per hour. Employers in the rest of the State, however, must take note of the increases to the minimum wage. As of December 31, 2020, the hourly minimum wage increased in Long Island and Westchester County to $14 and in the rest of the state to $12.50. Annual increases for the rest of the state will continue until the rate reaches $15 minimum wage (and $10 tipped wage).
More information on NY minimum wage increases can be found here.
New York State Paid Family Leave (PFL)
In 2021, eligible employees have access to up to 12 weeks of job protected, paid time off to bond with a new child, care for a family member with a serious health, or to assist loved ones when a family member is deployed abroad on active military service. Employees may also be eligible to use PFL if a worker or a minor dependent child are under an order of quarantine or isolation due to COVID-19.
The PFL wage replacement benefit is also increasing. In 2021, employees taking PFL will receive 67% of their average weekly wage, up to a cap of 67% of the current New York State average weekly wage of $1,450.17. The maximum weekly benefit for 2021 is $971.61.
An Overview and FAQ on NYS PFL can be found here.