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

Since we’ve all been preoccupied with COVID-19 for the last six months, several things have not received the attention they deserve and require. But, for now, I’ll focus on two very pressing issues. First, our friends in the New York State (“NYS”) Legislature passed, and Governor Cuomo signed into law, mandatory Paid Sick Leave (“NYSPSL”). If you think this is old news, you may be confusing NYSPSL with COVID-related NYS Emergency Paid Sick Leave (“NYSEPSL”), which is entirely different. [Right, I knew that, not confusing at all.]

NY State Paid Sick Leave Basics

First, it’s important to know three facts: 1) NYSPSL applies to all private employers in NYS regardless of size or number of employees; 2) the effective date for employees to begin accruing leave is September 30, 2020, with accrued leave available for use starting January 1, 2021; and 3) as of today, the State has issued no guidance or regulations. [Shocking!]

Section 196-b of the NYS Labor Law requires employers to provide sick leave based on the following criteria:

  • Employers with four (4) or fewer employees, and net income of $1 million or less in the previous tax year, must provide employees with up to 40 hours of sick leave each calendar year, which may be unpaid;
  • Employers with four (4) or fewer employees, and net income greater than $1 million in the previous tax year, must provide employees with up to 40 hours of paid sick leave each calendar year;
  • Employers with five (5) to 99 employees, regardless of income, must provide employees with up to 40 hours of paid sick leave each calendar year; and
  • Employers with 100 or more employees must provide employees with up to 56 hours of paid sick leave each calendar year.

Employees must be allowed to take NYSPSL for any of the following reasons:

  1. A mental or physical illness, injury, or health condition of the employee or the employee’s family member, regardless of whether the illness, injury, or health condition has been diagnosed or requires medical care at the time that the employee requests leave;
  2. The diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of – or need for medical diagnosis of, or preventive care for – the employee or the employee’s family member; or
  3. An absence from work when the employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking.

Employers have two options regarding the accrual of mandated sick leave. First, beginning September 30, 2020, employees accrue sick leave at a rate of not less than one hour for every 30 hours worked. Under the second option, the employer may “front load” the entire mandated amount of sick leave on January 1.

Employees may begin using sick leave on January 1, 2020, by making a verbal or written request to their employer. Employers are prohibited from requiring employees to disclose confidential information (i.e., medical information, etc.) as a condition of taking NYSPSL, and employees may not be required to take sick leave in increments of more than four (4) hours.

Unused NYSPSL must be carried forward to the following calendar year. However, employers with 99 or fewer employees may limit the use of NYSPSL to 40 hours per calendar year. Employers with 100 or more employees may set the limit at 56 hours per calendar year.

Two bright spots for employers, the law doesn’t require the payout of accrued but unused NYSPSL at separation, regardless of whether the individual’s employment was voluntarily or involuntarily terminated. Employers with existing sick-leave and paid-time-off (“PTO”) policies that meet or exceed the NYSPSL law requirements are not required to provide additional sick leave.

Lastly, firing, threatening, penalizing, or otherwise discriminating or retaliating against an employee requesting or taking NYSPSL is prohibited. Further, employees must return to the same position, with the same pay and other terms and conditions of employment they had before taking NYSPSL.

After that brief overview of the law [are you serious, that was a brief overview?], it should be clear that NYSPSL is a significant change for most employers. Sick leave policies will need to be updated or new policies drafted. Employers also need to determine how accruals and leave time will be tracked and administered, educate employees on their right to sick leave, and a lot more!

I’m planning webinars and additional articles soon, so stay tuned. However, if you have specific questions or concerns about how NYSPSL will impact your company, send me an email at frank@hrcexperts.com. We’ll schedule a time to discuss your situation and help you implement and comply with NYSPSL.   

NYS Mandated Workplace Harassment Prevention Training

Any guesses on the second pressing issue? [ Hey genius, you gave it away in the heading.] Contrary to some misguided rumors, and regardless of the ongoing pandemic, mandatory annual workplace harassment prevention training must be provided to all employees by December 31. Among the changes for 2020, the definition of sexual harassment has been expanded, resulting in more types of behavior qualifying as sexual harassment. Further, your training should address all forms of discriminatory harassment covered by NYS human rights law. [How are employers supposed to keep up with all this during a freaking pandemic?!]  

Don’t worry, we’ve got your back! We’re offering:

  • Live webinars
  • On-demand webinars
  • Live and on-demand management webinars

Clients have the option of customized, company- and industry-specific content that meets all NYS training requirements, is conveniently scheduled, and available only to their employees. As an alternative, we also offer universal workplace harassment prevention training, using broad-based scenarios, which also meets all NYS requirements.

Equally important, our management-specific workplace harassment prevention training expands on the all-employee training to ensure all levels of management–including supervisors–are aware of their individual responsibilities to model appropriate workplace behaviors, recognize and properly address harassment, and understand their potential exposure to personal liability.

If you’d like more information, or want to schedule workplace harassment prevention training for your employees, send me an email, frank@hrcexperts.com, or call 585-416-0751.

If you enjoyed Frankly Speaking, let me know! Also, feel free to share it with friends and colleagues.

Stay well…


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

© 2020 HR Compliance Experts LLC

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


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.

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!  

That was the easy part. The rest is going to require we set aside many of our beliefs about work and workplaces. There is no single “right” way to transition back, because every situation, employee, employer, workplace, industry, and location will be somewhat unique. But there are many common starting points.

Before I go any further, I need to ask for your indulgence (I don’t like where this is going). When I don’t sleep much, as I haven’t in weeks, I sometimes default to gameshow mode. I don’t know exactly where this is going (great; anybody want to sneak out the back door with me?), but let’s see what happens!  

Welcome to, What the Hell Do We Do Now? Post-COVID-19 Workplace Edition!   

The point of this haphazardly created gameshow is to either help employers begin to develop a return-to-work plan, or completely confuse them. There’s a 50-50 chance of either right now.

Time to meet our contestants. Let’s have a round of applause for Connor and Mackenzie!  (Wait, those are your grandchildren!)

To determine who goes first, we checked their diapers. Since Connor needs a change (desperately), Mackenzie will go first.

Question 1: What is one important step employers should take to prepare for reopening their workplaces?

Mackenzie: [Silent stare…then cute baby noises.]

I’m sorry, time’s up!  One correct answer is to place orders now for supplies like hand soap, disinfectants, antibacterial wipes, and hand sanitizer. It will likely take weeks for delivery, so waiting until you have a firm back-to-work date isn’t advised.

I see Connor is back with a fresh diaper, so the next question is his.

Question 2: Will employees be required to wear masks in the workplace?

Connor: VROOM! [loud screech followed by crashing noises] Papa, look at the big crash! VROOM!

Close, but not the answer we were looking for. Based on current information and examples from other parts of the world, employers should be prepared to require everyone in the workplace to wear some type of face covering or mask in the workplace. Given a recent Executive Order from Gov. Cuomo, it appears likely that employers in NY State may be required to provide face coverings, or at least make them available to all employees at no cost. I also expect that all visitors and others in the workplace will be required to wear face coverings to help keep everyone healthy.

It’s a tight game, with Connor and Mackenzie tied at zero. In the next round, points are doubled. (Hey, Pythagoras, two times zero is still zero.) Back to Mackenzie.

Question 3: How should employers address situations where employees aren’t comfortable returning to the office when it reopens?

Mackenzie: [Sucking on three fingers and then beginning to cry, which is immediately identified by her mother as her “I’M HUNGRY” cry.]

Oh, sorry, the answer is not an “I’M HUNGRY” cry. Employers should consider these concerns on a case-by-case basis. There may be underlying health reasons causing the employee’s reluctance. They may be experiencing symptoms of COVID-19; have a compromised immune system, or live with, or care for a loved one who is especially vulnerable to severe or life-threatening complications from COVID-19 exposure. They may need to stay home and care for their children. These, and many more, are good reasons not to return to the workplace. Reasonable accommodations are necessary in these, and other situations. If work can be done remotely, then allow employees to continue doing so. If that’s not possible, job-protected paid leave or a leave of absence may be necessary.

Connor has the chance to take a commanding lead over his infant sister with this question!

What are three ways the workplace is likely to change after COVID-19?

Connor: Papa Mimi! Papa Mimi! Papa Mimi!

Let me check with the judges…no, yelling the names of your favorite grandparents three times is not a correct response.

First, social distancing will have a significant impact on the way employees interact with coworkers for the foreseeable future. Desks and workstations should be moved further apart. Employees won’t be conducting or attending conferences or seminars, meetings with more than a few people, group new hire orientations, or gatherings in the lobby for birthday cake. Secondly, handshakes are a thing of the past—at least for quite a while. Finally, and likely most impactful, attitudes about going to work sick, and others being sick while at work will dramatically change when workplaces reopen. After this experience, many employers will be more open to remote and flexible work arrangements because their employees—many of whom have been asking for a long time—have proven they work.

OK, a quick recap of our scores; Mackenzie zero, Connor zero. That means our last question is a winner-take-all! The first child to utter a sound will win incredible prizes and family bragging rights.

When and what should employers communicate with employees?

Mackenzie: [Several light pats on her back produces an almost imperceptible burp.]

CONGRATULATIONS Mackenzie! Only two days old and already following in her Papa’s footsteps as an HR expert! (Unless burping is the latest and greatest employee communications tool, you’re daft.)

Employers should already be communicating with all employees and continue to do so regularly. Regardless of whether employees are working, they need to hear from company leaders often throughout this crisis. Consider a weekly email, electronic “town hall” meeting, conference call, or a rotating schedule of each. Anticipate, and prepare responses to employee questions, such as:

  • When can we get back to work and “normal” business operations?
  • How are the current circumstances impacting the company?
  • What actions is management taking to mitigate the impact?
  • Did the company apply for/receive a loan under the Paycheck Protection Program?
  • Are some employees working?
  • Is the company paying employees who are not working, their full wages? If yes, why?
  • Is it true that some people are making more from unemployment benefits than if they were working?

Thanks for joining Connor, Mackenzie, and me for, What the Hell Do We Do Now? Post-COVID-19 Workplace Edition!  These, and many other FAQs, will soon be available on the HR Compliance Experts website at, https://hrcexperts.com/coronavirus-covid-19-resources/.

Stay well…


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

© 2020 HR Compliance Experts LLC

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


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.

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:

  • CARES-envy UI; and
  • CARES-envy PPP. 

CARES-envy UI (Are you serious? That sounds like a Law & Order knock-off.) This occurs when an employee, who has continued to work during the COVID-19 crisis, learns that their furloughed/laid-off co-workers are collecting weekly state unemployment insurance (UI) benefits, PLUS an additional $600/week federal emergency UI benefit authorized by the CARES Act. In NY, state weekly UI benefits range from $104 to $504. Under the CARES Act, workers will receive a $600 emergency UI benefit in any week they are eligible for $1 or more in underlying UI benefits. (Wait, $1 is a typo, right?) For example, a furloughed worker whose regular weekly wages were $620, will receive a weekly state UI benefit of approximately $310, PLUS $600, for a total weekly UI benefit of $910. That’s $290/week more than their wages would have been if they were working. 

CARES-envy PPP occurs when an employee who has continued to work during the COVID-19 crisis learns that their employer is going to pay employees, who are not working, their regular weekly wage. This will happen because, an employer approved for a loan under the Paycheck Protection Program (PPP) must use at least 75 percent of the loan for payroll and related expenses, and maintain the number of workers employed before the COVID-19 crisis began. If the employer uses the money as required, the loan will be forgiven. For example, Barb’s Bears, a company that creates and produces Teddy bears and other plush toys, had 50 employees at the beginning of February. Because it is not an essential business, all the manufacturing employees, a total of 40, were furloughed on March 20. Eight of the remaining employees are able to work from home, and two maintenance professionals work separate shifts at the factory to ensure the building and equipment are safe and secure. Soon after being approved for a PPP loan, Barb, the owner, notified all the employees that the company received the loan and the furlough will end April 26. She explained that, although none of the furloughed employees will be able to return to work, the company is required to use the proceeds from the PPP loan to pay their wages for the next eight weeks. Shortly after the announcement, Barb received calls from three employees who have, and will continue to work from home. Each told Barb they were angry that they had to continue working while almost all the other employees will be paid to sit home and do nothing. “It’s not fair!”   

Here’s the rub as I see it. In some ways, these employees are not wrong. I’m not saying they’re right, just not entirely wrong. (OK…wait, what?) What’s worse, as business owners, HR professionals, managers, and responsible adults, we don’t have a good answer to, “it’s not fair!” In part, because it isn’t fair. We can try to explain that, “these are unintended consequences of the federal government’s actions to financially protect the unemployed and small businesses during the COVID-19 crisis.” (Ummm, was it really unintended? There was that well-known senator from VT who threatened to block a vote on the bill if any changes were made to the $600/week UI benefit.) But, already upset, employees are going to hear, “blah, blah, blah— it’s not my fault—blah, blah, blah—blame the government—blah, blah, blah.” I strongly suggest you not get frustrated and say something like, “quit your bitching, you’re lucky to have a job!” At best, that will make the situation much worse. Or, you might hear, “Lucky? Screw you! Lucky is getting paid not to work, or making more on unemployment than you’re paying me to work during a F&%KING PANDEMIC! (Excuse me, language!)

Do you have any ideas? If so, I’d love to hear them! Please email me at frank@hrcexperts.com.  

Stay well…


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

© 2020 HR Compliance Experts LLC

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


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.

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

Fridays with Frank – Mar 13, 2020

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Happy Friday!

What a freaking week, right? I wasn’t sure whether to start Fridays with Frank with my usual greeting. Then I realized, those two words might be the happiest thing many of us have heard all week!

So let me say it again, even louder, HAPPY FRIDAY! 

Since questions and information related to “the novel Coronavirus” have dominated every waking minute of my life this week, I didn’t have time to think about, or write, a witty and informative post (oh please, don’t hurt your arm patting yourself on the back) you’ve come to expect.  However, never fear, I’m sharing an equally witty and informative article I wrote (you’re shameless, aren’t you?) that was published in the Daily Record newspaper on Tuesday. With a title like, “HR compliance is easy and cheap, said nobody ever,” how could it be anything less than riveting! (Yep, completely devoid of all shame!) 

Stay safe and healthy, and send me a text if you find hand sanitizer or disinfecting wipes anywhere! 

That’s a wrap on another Fridays with Frank. Thanks for spending a small part of your day with me, and have a great weekend! 


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

© 2020 HR Compliance Experts LLC

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


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.

Fridays with Frank – Mar 6, 2020

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Happy Friday!

It’s March, and I couldn’t be happier! I’ve never had a good relationship with February. Although it has the fewest days, February has always felt like the longest month to me. It may be time Becky and I start taking February vacations to warm tropical places. Maybe that’s where I’ll find the answer to a question that has vexed HR professionals since the dawn of time. That’s right, “On what planet was that OK?” 

Warning! The following should not be read by anyone offended by foul language, in the presence of children, in an area where others may be disturbed by the repeated muttering of “are you f-ing kidding me?,” or if one more story of reprehensible workplace behavior will forever destroy your faith in humanity. Don’t say I didn’t warn you!


On Tuesday, March 3, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced a settlement agreement with Ithaca, NY-based Porous Materials, Inc. According to the press release, the employer “will pay $93,000 and furnish other relief” to settle a lawsuit brought by the EEOC on behalf of the complainants. Continue reading

Fridays with Frank – Feb 28, 2020

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Happy Friday!

“Check. Check. Check—one—two.” If you’ve ever done a microphone check, you’ve probably said those exact words. Of course, I prefer random useless facts, like, “did you know Thomas Jefferson and John Marshall were second cousins (once removed) and they hated each other?” Anyway, there’s something about being recorded that makes me want to ensure I’m speaking clearly and precisely. Easy enough as long as I’m aware I’m being recorded. The problem is, there are microphones and recording devices everywhere! (Oh, no! Please don’t start with the conspiracy theories and big brother stuff again!) Every smartphone and tablet has a microphone and recording app. There are even pens and other office supplies with built-in recording devices! At any moment, every word you say could be recorded. Including that comment you made last week about where the new employee could stick their accommodation request to bring their emotional support Mastiff (appropriately named Thor) to work every day. (insert thunderclap followed by ominous music)  


Yes, cellphone videos are a part of everyday life. We’re all inundated with cellphone videos of everything from adorable babies and crazy cats to tragic accidents and heart-wrenching memorials. For many, video recording everything—from the mundane to the incredible—has become as much a reflex as taking their next breath. Unless they don’t want you to know they’re recording. In those situations an old school audio recording does the trick. Continue reading