2021 Employment Law Spotlight: New York
- 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.
- 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.
- 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.
- 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.