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Nys Vacation Time Law 2021

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On December 15, 2021, the New York City Council passed legislation that will require most employers advertising job openings for positions performed in New York City to include in the posting the minimum and maximum salaries offered for the position. The bill was not signed by outgoing Mayor Bill de Blasio. Accordingly, Mayor Eric Adams has until January 14, 2021, to either veto or sign it, in which case it would take effect 120 days later. The mayor may also leave the measure unsigned, in which case, pursuant to the New York City Charter, it would take effect on May 15, 2022.

New York’s Paid Sick Leave Law

Effective September 30, 2020, employers in New York state must provide employees with up to 56 hours of paid sick leave per year. Qualifying reasons for leave include:

  • the mental or physical illness of an employee or an employee’s family member
  • ensuring the health and safety of an employee or an employee’s family member who has been the victim of domestic violence, a family offense, a sexual offense, stalking, or human trafficking.

“Family member” is defined broadly to include domestic partners, step-children, step-parents, legal guardians, adopted children, grandparents, grandchildren, and many others.

Under the law, small employers must offer at least 40 hours of unpaid sick leave per calendar year.

Medium-sized employers with between five and 99 employees and employers with four or fewer employees and a net income of more than $1 million must provide at least 40 hours of paid sick leave per calendar year.

Large employers with at least 100 employees must provide at least 56 hours of paid sick leave per calendar year.

Employees must be paid for sick leave at their regular rate of pay or the minimum wage, whichever is higher.

Electronic Monitoring In The Workplace

Effective May 7, 2022, New York State employers will be required to provide notice to an employee upon hire where the employer monitors or otherwise intercepts telephone calls, emails, or internet usage or access using any electronic device or system. The notice must be in writing or sent electronically, and employees must acknowledge receipt in writing or electronically. For current employees, employers should also post an electronic monitoring notice in a conspicuous place, readily available for viewing by employees subject to electronic monitoring.

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New York Paid Family Leave Amendments

Effective , the New York State Workers Compensation Board adopted amendments to the regulations for the New York Paid Family Leave Benefits Law clarifying that when Paid Family Leave is taken intermittently, the maximum number of intermittent leave days an employee may take is based on the average number of days the employee works per week. The regulations initially capped intermittent PFL at 60 days. This 60-day cap has been removed, allowing for additional days of intermittent PFL for employees who work an average of more than five days per week.

New York State also amended the PFL law to expand the definition of family member to include siblings, effective January 1, 2023.

For 2022, the new maximum weekly benefit for PFL is $1,068.36. The maximum annual contribution for 2022 is $423.71.

What Should Employers Do Now

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Review existing leave policies

All New York employers should carefully review their existing sick leave or PTO policies to determine whether the existing policy already meets the laws requirements. Many policies will contain some but not all of the elements required by Section 196-b.

With most employers having abandoned separate buckets of vacation, sick, and personal time in favor of a general PTO policy, the new law will force a choice: whether to apply the new rules to all PTO hours, or to separate out sick time and redefine PTO to cover vacation and personal time , with the new rules applied only to the separate sick leave.

If you dont have a written sick leave policy, now is the time to write one.

Assess attendance tracking

Be sure your attendance tracking systems account for protected sick leave as a designated category, and make sure that supervisors and managers understand they may not count such leave against employees when evaluating their attendance.

Be ready for September 30, 2020

Paid leave must begin to accrue on that date, to be used effective January 1, 2021, and after. Employers must have systems in place and communications to employees ready to go.

Plan for more absences

Employees who were not economically able to take time off from work will now have the ability to take leave without affecting their pay. Employees with dangerous domestic situations also will have the ability to take paid leave.

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Pto Permitted Uses And Increments In New York

According to New York State, the law allows employees to use sick leave for the following reasons:

  • Mental or physical illness, injury, or health condition, regardless of whether a physician has diagnosed the ailment or the ailment needs medical care at the time of the employees request, or
  • The diagnosis, care, or treatment of a mental or physical illness, injury, or health condition or need for medical diagnosis or preventive care.

New York State permits employees to use safe leave for the following purposes:

  • A work absence is when the employee or employees family member has suffered domestic violence, as the State Human Rights Law defines, due to any of the following as it relates to domestic violence, family offense, sexual offense, stalking, or human trafficking:
  • Obtaining domestic violence shelter, rape crisis center, or other program services,
  • Participating in safety planning, temporary or permanent relocation, or other actions to increase employee or employee family member safety,
  • Meeting with an attorney or other social services provider for information, advice, and preparation for or participation in a criminal or civil proceeding,
  • Filing a complaint or domestic incident report with law enforcement,
  • Meeting with a distinct attorneys office,
  • Enrolling children in a new school, or
  • Taking any other action necessary to ensure the employee or employees family members health and safety or to protect associates or co-workers of the employee.

New Year New Rules: New York Employees May Begin Taking Paid Sick Leave January 1 2021

The New York State Paid Sick Leave law and the amendments to the New York City Paid Safe and Sick Leavelaw expanding employees paid sick leave entitlements will go into full effect on January 1, 2021. As we previously reported, NYSPSL went into effect on September 30, 2020 for accrual purposes, but employees are not able to access their accrued sick leave until January 1, 2021.

As a reminder, under both NYSPSL and ESSTA, the amount of sick leave is determined by an employers size and net income in a given calendar year:

  • Employers with 4 or fewer employees and a net income less than $1 million must provide at least 40 hours of unpaid sick leave per calendar year.

  • Employers with 5-99 employees and employers with 4 or fewer employees and a net income greater than $1 million must provide at least 40 hours of paid sick leave per calendar year.

  • Employers with 100 or more employees must provide at least 56 hours of paid sick leave per calendar year.

On December 9, 2020, the New York State Department of Labor published proposed regulations, clarifying certain issues related to NYSPSL. The key takeaways include:

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Minimum Wage And Exempt Salary Threshold Increases

Effective , the statewide general minimum wage increased to $13.20 per hour, and the minimum hourly wage in Nassau, Suffolk, and Westchester counties rose to $15.00, matching the rate that has been applicable to all New York City employers since 2019. The corresponding minimum salary threshold for exempt employees also increased outside of New York City. In Nassau, Suffolk, and Westchester counties, exempt employees must earn at least $1,125/week , and in the remainder of the state, exempt employees must earn at least $990/week . New York State requires employers to post minimum wage information and publishes industry-specific posters for use in compliance with this obligation.

New York Temporary Disability Benefits

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New York has a state temporary disability insurance program. Eligible employees who are temporarily unable to work due to disability can receive up to 50% of their usual wages while they are out of work.

This program does not give employees the right to protected time off work. It only provides for partial wage replacement while employees are out on leave.

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Ny Psl Adopted Regulations

Nearly two years ago NY PSL was enacted through the New York State 2020-21 budget process. Despite an effective date of September 30, 2020, proposed regulations further interpreting NY PSL law were not released until December 2020. More than a year since the release of the proposed regulations the New York State Department of Labor has adopted final regulations. While the State Register includes public comments that were submitted, and responses to the same, the proposed regulations were adopted with no changes.

The comments and responses to NY PSL provide guidance on some issues, while some unanswered questions remain. Significantly, employers may have a practice of cashing out unused paid sick leave for employees at the end of the year provided that employees are given the option to either cash out unused paid sick leave or carry it over. Alternatively, an employer can choose to allow employees to carry over the sick leave as the only option, but employers cannot impose a use it or lose it policy upon employees for paid sick leave. Whichever policy the employer chooses must be in writing and distributed to employees.

The DOL also clarifies that for determining the statutory requirements based upon employee count, all employees of a company nationwide are to be counted, though benefits only need to be provided to those employees working in New York State.

New York Adopts Rules Clarifying Sick Leave Law

On December 22, 2021, the New York Department of Labor adopted rules implementing the states sick leave law , providing long-awaited clarification of the Sick Leave Law, which went into effect over a year ago on September 30, 2020. The Rules, codified as Section 196 to Title 12 of the NYCRR, were proposed on December 9, 2020, and adopted without change. In addition to providing definitions of terms used in the Sick Leave Law, the Rules address three topics: documentation an employer may require to verify an employees eligibility to use sick leave how to count the number of employees an employer has for the purposes of determining employees sick leave entitlement and how to calculate an employees accrual of sick leave. In addition, the DOLs response to public comments it received after the Rule was proposed, explain how carryover of accrued unused sick leave works.

New York City employers should note that the Citys Earned Safe and Sick Time Act prohibits employers from requesting documentation until after an employee has been out for three consecutive workdays.

What Employers Should Do Now

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What Are The Rules On Unused Vacation

I f you had accrued vacation time that wasnt used when you resign or were terminated, you may be entitled to be paid for that time. In New York, employers are generally required to pay out an employees unused vacation time, unless the company has a formal, written policy that specifically forfeits your right to be paid for unused vacation. If the companys vacation policy is silent on the issue, however, accrued vacation time must be paid out at the end of employment failing to do so is a form of wage theft.

How Our NYC Wage & Hour Attorney Can Help

When you resign or are fired from a job, you have a right to be treated fairly. If you have not been paid for unused vacation, you have options. Wage and hour claims, including claims for unpaid vacation time, can be brought as a class or collective action. This is because you may have damages that are too small to justify filing an individual action.

Class action lawsuits are brought when a number of people have suffered the same or similar injuries or losses. The combined value of their claims add up, and participants in a class action can recover significant damages as a group. Not only is this a more efficient process, but aggregating small claims into class action can also reduce the cost of litigation.

What New York Employers Should Do Now

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Employers across the state face a wide range of changes in laws that affect numerous policies and procedures throughout the employment context. To ensure compliance for 2022, employers with a New York State or City workforce should do the following:

  • Review and revise employee handbooks to ensure that they are up to date.
  • Review and revise policies and procedures to ensure compliance with various sick leave laws, including COVID-19-specific leave and vaccination laws, and vaccine and/or mask mandates that are likely to be extended as the most recent surge of coronavirus cases.
  • Ensure compliance with minimum wage laws in accordance with the changes reflected across the state.
  • Begin planning to ensure timely compliance with pending laws that are not yet effective.

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A Fair Day’s Pay For A Fair Day’s Work

The Division of Labor Standards protects all workers, including those that are undocumented or paid off the books, and ensures employers are following Labor Laws. Our goal is to ensure that all New York workers are being paid the proper wages, do not have their right to a meal period or day of rest violated, and to uphold New York State Labor Laws.

We enforce the State Labor Laws for minimum wage, hours of work, employment of minors, payment of wages, farm labor, nursing mothers in the workplace, and more. We can issue fines and penalties, as well as investigate complaints regarding Labor Law violations.

All workers are entitled to fair wages and are protected by Labor Laws. The Division of Labor Standards is here to protect you.

Ny Hero Act Workplace Safety Committees Proposed Regulations

On May 5, 2021, the New York HERO Act was enacted, creating among other pieces of legislation, New York Labor Law § 27-d, which requires private sector employers with 10 or more employees to permit the creation of joint employer-employee workplace health and safety committees.

On December 22, 2021, proposed regulations interpreting the new workplace committees were also published in the New York State Register.

The proposed regulations include sections on definitions, committee establishment, committee rules, and employer obligations. Some highlights of the proposed regulations include the following:

  • The number of employees an employer counts for coverage purposes only includes the employees that are employed within New York State.
  • Part-time, newly hired, temporary, and seasonal employees, like full-time employees, are considered to be employees.
  • Workplace safety committees may be established for each worksite following a written request for recognition by at least two non-supervisory employees who work at the worksite.
  • Upon the receipt of a request for recognition, employers shall respond to such request with reasonable promptness, but there is no specification of an exact time period.
  • Requests for committee recognition may be denied where a committee already exists that complies with the law.
  • Workplace safety committees shall be comprised of not less than two non-supervisory employees and not less than one employer representative.
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    New York Hero Act Obligations Extended

    The New York HERO Act , enacted in May 2021 and amended in June, has two key requirements for employers. Section 1 of the HERO Act requires that employers create and maintain infectious disease exposure plans . This requirement has recently been extendeduntil at least January 15, 2022, because the New York State Health Commissioner renewed the designation of COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to public health.

    Section 2 of the HERO Act requires employers in the State with 10 or more employees to allow employees to form a workplace safety committee in order to review workplace policies relating to occupational health and safety. Details regarding the requirements under Section 2 were released on December 22, 2021, in the form of a proposed rule, which will not take effect until after the rulemaking process, including a public hearing scheduled for February 9, 2022, is completed.

    New York Law On Paid Time Off

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    As a general rule, New York law does not require an employer to provide paid time off to employees, including for vacation. When an employer does so, however, it is supposed to do so pursuant to a written employment contract or written policy.Employers are expected to act consistently with the contract or policy. An employer may have a rule that employees forfeit any accrued PTO that they fail to use before a certain specified time . This is commonly known as a âuse it or lose itâ rule. The rule will be enforced by the Courts IF the employer communicates it to employees clearly.Likewise, an employer may have a rule that employees forfeit any accrued PTO that they fail to use before they leave employment . The rule will be enforced by the Courts IF the employer communicates it to employees clearly.

    Employees who believe that employers owe them for PTO have two no/low cost options:

    They can contact the New York State Department of Labor and complain. You can call the Rochester office at 585-258-4550 and find the relevant complaint form here. An employee owed $5,000 or less can sue their employer in Small Claims Court. Visit this page for an overview of Small Claims Court. You can find the application to file such a claim here.

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