Frankly Speaking – NYS HERO Act has employers asking, “WTH?”

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Babe Ruth2Is anyone else tired of legislative acronyms? (Yes, and I can’t wait to see how you manage to connect legislative acronyms to Babe Ruth.) Almost no one, including the legislators, know what they stand for. Especially when the acronyms are ridiculously overused, like SAFE, CARE, FAIR, STOP, HELP, HOPE…well, you get the idea.

Some of the classics I found:

  • Robo COP Act – Robo Calls Off Phones Act;
  • FLY Act – Financial Literacy for Youth Act;
  • End GREED Act – End Government Reimbursement of Excessive Executive Disbursements Act;
  • APPLE Juice Act – Arsenic Prevention and Protection from Lead Exposure in Juice Act; and my favorite,
  • BABE RUTH Act – Build America Bonds Extension for Rural and Urban Transportation and Highways Act, which obviously has nothing to do with baseball. (That’s why you have a picture of The Babe…overplayed, but clever.)

Never ones to let go of a bad thing, New York lawmakers recently passed a novel, sweeping overhaul of the State’s workplace health and safety laws. The HERO Act – Health and Essential Rights Act (wait, I think you forgot something…there’s no “O” word, you need an “O” word if the acronym is HERO), is intended to “to protect employees against exposure and disease during a future airborne infectious disease outbreak.

Among other things, the HERO Act (again, without an “O” word, it’s the HER Act) instructed the New York State Department of Labor (“NYSDOL”) to create written model airborne infectious disease exposure prevention standards to cover workplaces throughout NY. Specifically, the NYSDOL was tasked with creating separate model standards for, (1) industries representing a significant portion of the workforce, or those with unique characteristics requiring distinct standards, and (2) all remaining worksites not included in the specific industry standards.

The model standards, published July 7, 2021, are important for several reasons. Chief among them is that all employers in NY State – regardless of size, industry, or location – have 30 calendar days from that date to establish an airborne infectious disease exposure plan. With the clock ticking, and the August 6, 2021, deadline fast approaching, employers have an important choice to make: (1) commit the time, effort, and financial resources necessary to create and implement their own airborne infectious disease exposure plan that meets or exceeds the State’s minimum standards; or (2) adopt the appropriate industry-specific Model Airborne Infectious Disease Exposure Prevention Plan published by the NYSDOL.

For employers like me who think this is one of the easiest decisions they’ve had to make all year, the specific industries covered are: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail. (OK genius, where do they find these miracle model plans?) You can find the State’s model materials at, https://dol.ny.gov/ny-hero-act.

Another important point is that NY employers are not required to implement a plan in response to COVID-19. According to the Standards, they apply only to “an airborne infectious agent or disease designated by the Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health” and do not apply to “any employee within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases.”

With that in mind, all NY employers are required to:

  • adopt an industry-specific Model Airborne Infectious Disease Exposure Prevention Plan published by the NYSDOL – or create and implement a company-specific plan that meets or exceeds the State’s minimum requirements – no later than August 6, 2021;
  • provide a copy of the final plan to all workers – including all full- and part-time employees, independent contractors, staffing agency employees, and domestic workers – in writing within 30 days from the date the plan is implemented (or September 4, 2021, at the latest), and, going forward, immediately when new workers join the company, and to all workers and bargaining (union) representatives upon request;
  • post a copy of the company’s plan in each workplace and in a prominent location accessible to all workers;
  • include a copy of the company’s plan in the employee handbook; and
  • in the event of a future closure due to an airborne infectious disease, a written copy of the plan must again be provided in writing to all workers listed above – this time within 15 days after reopening. 

Employers with remote workers are not required to adopt an Airborne Infectious Disease Exposure Prevention Plan for telecommuting or telework sites (such as employees’ homes) unless the employer can exercise control over the site.

Finally (yes, finally!), the State’s standards indicate that employers should review and update their plans as necessary to reflect new or modified tasks and procedures related to occupational exposure and to reflect new or revised worker assignments. Regularly reviewing and updating the company’s plan will help ensure you’re able to “promptly activate the worksite exposure prevention plan” in the event an airborne infectious disease emergency is declared.

At this point, I’m guessing you have a few acronyms in mind to describe your feelings about this latest mandate, and HERO isn’t one of them!


 
If you enjoyed Frankly Speaking, let me know! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact me at frank@hrcexperts.com, or call 585-416-0751.
 
Stay well… 

Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2021 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.


CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Frankly Speaking – NYS DOL Cancels All Employer Unemployment Insurance Charges…Indefinitely!

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Here’s an announcement that came from left field (baseball! pitchers and catchers report to spring training in a few days…sorry, that’s not the announcement). On January 14, 2021, New York State Department of Labor (“DOL”) Commissioner Roberta Reardon signed an Order that temporarily cancels unemployment insurance (“UI”) charges for all employers. 

According to the Order, retroactive to March 9, 2020, and going forward for an indefinite period, the State will use the general unemployment insurance account to cover all unemployment benefit payments. Also, regardless of whether the employer pays unemployment insurance taxes or directly reimburses the State for UI benefits paid to claimants, the Order cancels all charges made against employers’ accounts from March 9, 2020. (Did somebody in Albany get a printing press from Santa? Never mind, I don’t want to know.)

Under the federal Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), self-insured nonprofits, Native American tribes, and government agencies were to be reimbursed 50 percent of their unemployment charges from March 13, 2020, through December 31, 2020. Based on the Commissioner’s January 14, 2021 Order, the State will reimburse these employers the remaining 50 percent charged to their accounts during that period. Further, charges incurred beginning January 1, 2021, will be charged to the State’s general account¾not the employer¾indefinitely.   

The NYS DOL has not indicated how it will reimburse eligible employers for UI charges incurred on or after March 9, 2020. However, the most likely scenario is a credit against future unemployment insurance benefit charges. 

This Order also means the continuing flood of unemployment claims since March 9, 2020, will have no negative impact on private employers’ UI experience ratings. What we don’t know is whether these employers will be required to continue paying unemployment insurance taxes.

Employers should continue reviewing DOL charge statements, bills, and other documents on a timely basis and continue to protest claims as appropriate. Also, there has been an exponential increase in fraudulent UI claims. (Yep, I recently got a notice that I filed for UI benefits!) Employers who receive UI benefit notices for potentially fraudulent benefit claims should notify the NYS DOL at 888-598-2077, at https://webapps.labor.ny.gov/dews/ui/fraud/report-fraud.shtm, or by mail at NYS Department of Labor, Office of Special Investigations, Bldg. 12-Room 200, W.A. Harriman Campus, Albany, NY 12240.   


 
If you enjoyed Frankly Speaking, let me know! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact me at frank@hrcexperts.com, or call 585-416-0751.
 
Stay well… 

Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2021 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.


CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Frankly Speaking – NYS Issues Guidance on COVID-19 Quarantine Paid Leave

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Since being enacted on March 18, 2020, New York State (“NYS”) COVID-19 quarantine paid leave has been a constant source of confusion and consternation for many employers. Although the state’s Department of Labor (“DOL”) has issued some employer guidance, including guidance specific to the healthcare industry, many of the most problematic questions have gone unanswered.

As a review, NYS law requires employers to provide up to 14 days of paid sick leave (depending on employer size, net income, and whether it is a private or public employer) for employees subject to a mandatory or precautionary order of quarantine or isolation (a “COVID-19 Order”) issued by an authorized governmental entity. [Didn’t that expire at the end of 2020.] Unlike the federal Families First Coronavirus Response Act (“FFCRA”) paid leave mandate which expired on December 31, 2020 (extended as a voluntary program), the NYS COVID-19 quarantine paid leave mandate is ongoing.

Some of the more vexing questions have related to whether employees subject to COVID-19 Orders on multiple occasions are eligible for multiple periods of COVID-19 quarantine paid leave. For example, Stefon was subject to a 14-day COVID-19 Order in June 2020 because a household member was diagnosed with COVID-19. Stefon works for a large employer of more than 500 employees, so FFCRA paid leave was not available. Stefon’s employer was required to provide paid leave under the NYS COVID-19 quarantine paid leave law. On January 5, 2021, after testing positive for COVID-19, Stefon was placed under a 14-day COVID-19 Order.   Continue reading

Frankly Speaking – January 23, 2021

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Surprise!

Who doesn’t love a surprise? Well, other than my spouse, Becky. Especially when I say, “I’ve got a surprise for you!” and she needs to wait to get whatever it is.
 
Governor Cuomo and the state’s department of labor (“DOL”) have a surprise for many New Yorkers. As part of his executive budget proposal, the Governor calls for the DOL to significantly change how partial unemployment insurance (“UI”) benefits are calculated for individuals who work during a benefit week. But claimants won’t need to wait because the Governor instructed the DOL to immediately implement “emergency measures” regarding the new rule. [But if it’s in the Governor’s budget proposal, and the legislature hasn’t passed the budget, how can the new rule be implemented immediately?] Because the Governor said so, that’s all you need to know! 
 
Historically, under NY law, UI benefits have been reduced by 25 percent for each day any work was performed. For example, Blake and Terry are neighbors, and both are unemployed. They were both hired by a small business, each working eight hours and earning less than $504 weekly. Blake worked all eight hours in one day, while Terry worked two hours, four days per week. Based on the number of days worked and weekly earnings, Blake’s weekly benefits were reduced 25 percent, and Terry’s were reduced 100 percent. That’s right, although they both worked the same number of hours, Terry was ineligible to receive any weekly UI benefits.
 
First, the good news, after decades of a statutory calculation that was, at best, a disincentive to working part-time during a job search, NYS made a change. Effective January 18, 2021, NYS implemented an “hours-based” calculation for partial weekly UI benefits. Also, as was the case under the previous rule, if a claimant’s gross earnings are more than $504 during a benefit week, they are not eligible for UI benefits that week regardless of the number of hours worked.
 
Now the not-so-good news. The new “hours-worked” approach is more complicated than the old “days-worked” system. Why? Because, once again, NYS is not in any way even remotely prepared for this change. From the guidance provided to date, it appears no modifications have been made to the state’s reporting system to allow claimants to report the number of hours worked. Instead, claimants must first convert hours-worked to days-worked, then report the number of days based on the state’s new calculations. SURPRISE! 
 
It’s astounding that NYS would implement a significant overhaul to the UI reporting process – a process already replete with issues and errors – and expect claimants to essentially calculate their own partial benefits, using what is basically a series of if/then statements, without the assistance of any online tools.
 
Below is the basic process as I understand it: 
 
Step 1: If the claimant’s gross earnings are more than $504, they are ineligible for UI benefits that week. If gross earnings for the week are $504 or less, continue to the next step.
 
Step 2: To determine the number of days-worked and whether the week’s benefits will be reduced, the claimant must convert the number of hours they worked during the week to days-worked, based on the following chart:
  • 0 to 4 hours worked – report 0 days worked to UI – no reduction in weekly benefits.
  • 5 to 10 hours worked – report 1 day worked to UI – benefits reduced by 25 percent.
  • 11 to 20 hours worked – report 2 days worked to UI – benefits reduced by 50 percent.
  • 21 to 30 hours worked – report 3 days worked to UI – benefits reduced by 75 percent.
  • 31+ hours worked – report 4 days worked to UI – benefits reduced by 100 percent.
Notes:
  1. If the total hours worked for the week includes a partial hour, the claimant should round up to the next whole hour. For example, if a claimant worked a total of four hours and 15 minutes during the week, they must round up to five hours and report one day worked. 
  2. If a claimant works more than 10 hours in a single workday, they should count only the first 10 hours. For example, claimant A worked two 12-hour shifts for a total of 24 hours. So claimant A counts only 10 hours of each shift, a total of 20 hours, and reports two days worked. However, although claimant B also worked 24 hours, they worked 6-hour shifts on four separate days. Therefore, claimant B must report three days worked.
Step 3: The claimant reports the total days-worked they calculated to NYS UI. (Claimants who choose the alternative of walking away muttering curse words under their breath should not expect to receive UI benefits that week.)
 
Employees working part-time and collecting partial UI benefits may turn to their employers with questions on the new calculation and reporting process. Employers and claimants can find information on the new partial benefits process at: dol.ny.gov/unemployment/partial-unemployment-eligibility.
 
Finally, employers participating in the state’s Shared Work program should be aware that, according to the NYS DOL, Shared Work is a separate program with its own rules, which are not affected by recent changes to the partial UI benefits process described above.
 
Confused? I’m not surprised.

 
If you enjoyed Frankly Speaking, let me know! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact me at frank@hrcexperts.com, or call 585-416-0751.
 
Stay well… 

Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2021 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.


CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Frankly Speaking – November 12, 2020

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Hello!

Sing along if you know the words… “over the river and through the drive-in testing site to grandmother’s house we go!” With the official start of the holiday season just a few days away, many families are making difficult decisions: How can we celebrate the holidays with the people we care about the most? Is it safe to travel? Or is it going to be a FaceTime Thanksgiving? (Is it me, or does that sound like a Hallmark holiday movie?)

From the perspective of employers in New York State (“NYS”), questions abound. As the number of positive COVID-19 tests continue increasing, they’re concerned about their employees’ health and safety. They’re also concerned about the State’s restrictions negatively impacting their already struggling businesses.

One of the most common questions I hear from clients is, “why does everything need to be so complicated?” Unfortunately, compliance with employment and business laws and regulations has always been complicated. There are just more laws and regulations continually clamoring for your attention right now. That’s not going to change anytime soon. However, employers can manage the stress of new and competing compliance requirements with knowledge. That means knowing which laws and regulations apply to their businesses and what they can, can’t, should, shouldn’t, must, and absolutely must not do to comply. With the Thanksgiving holiday only days away, the most pressing employer concerns are related to employee travel and the State’s travel advisory. Continue reading

Frankly Speaking – August 25, 2020

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Hello!

I’ve missed every one of you, my millions thousands hundreds dozens handful of loyal readers. It’s been quite a while since I published anything remotely resembling a blog–April 17, to be exact. There were several reasons I decided to take a break. COVID-19 monopolized every waking moment of every day; hastily written laws, regulations, and agency guidance continued to change at a blinding pace; and Becky and I were each working 15-hour days, seven days a week.

Well, as of today, I’m back! After a few “frank” [please tell me you didn’t just do that] conversations with people I trust, I realized two things: 1) I have the ability to present otherwise indecipherable, boring, but vitally important information in an understandable and often funny way; and 2) writing allows me to keep our clients informed, is a great marketing tool, and is a much-needed outlet for my everyday stress. [Hey, your favorite alter ego here, I’m the funny one, not you!] I also realized that the “Fridays” part of Fridays with Frank was adding to my stress. So, rather than recommitting to the pressure of a weekly blog, I’ve decided to launch Frankly Speaking, which will be published regularly but not on a set schedule.

The Important Stuff

Continue reading

Fridays with Frank – April 17, 2020

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Hello! How are you? I hope you and everyone you know and love are healthy in body, mind, and spirit.  

In the midst of the biggest health crisis in a century, Becky and I were blessed with the birth of our second grandchild. Our perfect angel, Mackenzie Grace, is happy, healthy, and safe at home with her parents and big brother. 

In a move Becky and I are convinced was intended to keep us from being with our new granddaughter, Gov. Cuomo extended NY on PAUSE until at least May 15. Although it doesn’t feel like it right now, there will come a day in the relatively near future when we’ll spend some time with Mackenzie…sorry, when our workplaces will reopen to our employees and others. Regardless of exactly which day that will be, today is the day employers should develop plans to keep employees and everyone who enters their workplaces safe and healthy when that time comes.   

To help you begin thinking about a plan, we’re going to start with a group exercise. (I hate group exercises, isn’t there a checklist you can give me?) Repeat after me: “I understand work can’t go back to the way it was before COVID-19, and I accept responsibility for making significant and necessary changes to our workplace.” Once more, and I want to hear everybody this time! “I understand work can’t go back to the way it was before COVID-19, and I accept responsibility for making significant and necessary changes to our workplace.” (OK, I said it; happy now?) Awesome!   Continue reading

Fridays with Frank – April 10, 2020

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COVID-19 moneyHello! How are you? I hope you and everyone you know and love are healthy in body, mind, and spirit.  

Earlier, I was cleaning up this site and saw an earlier post, which began, “It’s March, and I couldn’t be happier!” Clearly, I was a little premature with that celebration! (Ya think?)

I apologize for being absent last week. As some of you know, I’ve been sending a daily update email on everything  COVID-19 to a few hundred people for weeks. So, by the time last Friday came around, I needed a break from thinking and writing. But, I’m back! (We’ll see if that’s good news or not.)

 If you’ve had children home with you for a few weeks, I’m guessing you’ve heard, “that’s not fair!” a time or two. When our kids were young, and fairness challenged, I told them, “life is never fair, it’s just more obvious when you can’t have something you want.” (Right. I’ll bet that calms a screaming five-year-old instantly.) But, what is the appropriate response when adults feel shortchanged?

More than a few clients have called and emailed concerning CARES-envy. (I know you made that name up.) This soon-to-be wide-spread issue occurs when employees who are, and have been, working during the COVID-19 crisis learn that co-workers are being paid their full wages—or more—even though they’re not working. From my conversations, I’ve identified two forms of this malady: Continue reading

Fridays with Frank – Mar 27, 2020

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Hello! How are you? I hope you’re healthy and taking care of yourself.  

Some people are good at taking care of themselves. If you’re one, I admire and secretly envy you. (Right… that’s not what you said about them this morning!) Amid the stress and craziness of turning your life upside down, working from home, and being isolated and almost never alone—both at the same time—you’re going for walks and taking mental health breaks every day. I decided to give it a try a couple of days ago, so I took a 15-minute break. When I got back to my desk, there were nine emails, four texts, and two voicemails screaming for my attention. That was an epic fail!  Continue reading

Fridays with Frank – Mar 20, 2020

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One week. Seven days. One hundred sixty-eight hours. As I sit at my desk in the corner of our living room tonight, I can hardly believe how dramatically the world, as I knew it, has changed in such a short period of time.

Last Friday—one hundred and sixty-eight hours ago—Becky and I ate a late dinner while commiserating about another “crazy” week. The country was coming to understand the Coronavirus as a serious threat, Becky had been immersed in one conference call after another with her employer’s emergency response teams, and I continued preparing resources for my clients. Hearing what she was involved with at a corporate level emphasized to me that small businesses don’t have the money, internal experts, employee teams, plans, or strategies in place to quickly and effectively address emergencies like the spread of the Coronavirus. Little did we know what a difference one hundred sixty-eight hours would make. Continue reading