Frankly Speaking: A Few “Gifts” Not On Your Wish List

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Hello, and Happy Holidays!

I can’t believe it’s been such a long time since we’ve connected! [Barf! That sounds like one of those mind-numbing “let me brag about how awesome our year has been” letters people you never talk to send with their holiday cards.] For those readers new to Frankly Speaking, the commentary in [brackets] is channeled from my snarky alter ego. [Snarky? That’s rude.] Anyway, this is my end-of-year update on some significant changes to employment laws and regulations for 2023. [Like I said, mind-numbing. Wake me when it’s over.]

Minimum Wage

Several states’ minimum wage and minimum salary rates are increasing in 2023.

In October 2022, the NY State Division of the Budget [Who makes up these names?!] issued a report recommending that certain minimum wage rates for employees in Upstate NY – areas outside NY City, Long Island, and Westchester County – be increased, as described below. Gov. Hochul accepted the recommendation on December 21, 2022, [Seriously? Why not wait until December 30th so employers have less time to change their payrolls!] so employers in the Upstate region must prepare to pay the increased minimum hourly wage and minimum salary rates beginning December 31, 2022.

The proposed Upstate minimum hourly wage rate is set at $14.20 per hour, with the minimum salary increasing to $1,064.25 per week ($55,341.00 annualized). However, employers in NY City, Long Island, and Westchester County will not see a change to the current $15.00 per hour minimum wage or the minimum salary of $1,125.00 per week ($58,500.00 annualized).  

Similarly, the proposed Upstate minimum hourly rate in the hospitality industry for food service workers – employees primarily engaged in serving food or beverages and regularly receive tips, including wait staff, bartenders, captains, and bussers (not including delivery workers) – will increase to $9.45 cash and $4.75 tip. Food service workers in NY City, Long Island, and Westchester County will not see a change to the current hourly minimum rates of $10.00 cash and $5.00 tip. Further, the proposed Upstate minimum hourly rate for service workers – employees who are not food service or fast-food workers but who customarily receive tips – is set to increase to $11.85 cash and $2.35 tip. Also, service workers in NY City, Long Island, and Westchester County will not see a change to the current hourly minimum rates of $12.50 cash and $2.50 tip. Lastly, the minimum wage rate for employees of covered fast-food restaurants will remain at $15.00 per hour. [Do you really think anyone understood any of that?] 

In addition to NY State, more than 20 other states plan to increase their minimum hourly wage rates on January 1, 2023 (except as noted): Alaska $10.85; Arizona $13.85; California $15.50; Colorado $13.65 (June 1, 2023); Connecticut $15.00 (June 1, 2023); Delaware $11.75; Florida $12.00 (September 30, 2023); Illinois $13.00; Maine $13.80; Maryland $13.25; Massachusetts $15.00; Michigan $10.10; Minnesota $10.59; Missouri, $12.00; Montana $9.95; Nebraska $10.50; Nevada $12.00 (July 1, 2023); New Jersey $14.13; New Mexico $12.00; Ohio $10.10; Rhode Island $13.00; South Dakota $10.80; Vermont $13.18; Virginia $12.00;  Washington (state) $15.74. Also, several states, such as California and Maine, allow local governments to set minimum hourly wage rates which exceed the state’s threshold.

Employment Law Poster Requirements

Effective December 16, 2022, all NY employers must provide their employees with electronic access to all required NY State and federal workplace employment law postings. Signed into law by Gov. Hochul last week, A7595/S6805 requires the electronic posters to be available to employees through the employer’s website or by email. In addition to maintain the required workplace postings, employers must notify all employees that the required posters are also available electronically. [Are you making this up? You always seem to be the only person who knows about this stuff.]  

The law does not consider that, while many businesses have websites, and many employees have email addresses, that is not the case for all businesses or all employees. Further, the law does not provide any direction for employers without a website on how to make the electronic posters available. Neither does it suggest how to provide the mandated notice to employees that do not have, or refuse to provide, an email address. [Why would they? It’s not the state’s problem to solve.] However, the law does indicate that employers who fail to comply with this mandate may be subject to fines.

Most states, and the federal government, have made recent updates to their required workplace posters. So, regardless of whether you have employees in NY State, it’s important that you meet both state and federal posting requirements. My team is contacting HRCE clients to remind them that 2023 state and federal all-in-one posters – both printed and electronic – are now available. Also, current and future clients can contact us at HRAnswers@hrcexperts.com, or 585-565-3900, with any questions or to place an order. [Tell them the snarky alter-ego sent you!]

State Paid Family Leave

Effective January 1, 2023, [There’s more? Is this ever going to end?] the following changes will take effect to NY State Paid Family Leave (“PFL”):

  • Eligible employees will now be permitted to take PFL leave to care for siblings (including biological, adopted, step-, and half-siblings) with serious health conditions.
  • Eligible employees will continue to receive 67% of their average weekly wage, up to a cap of 67% of the 2023 Statewide Average Weekly Wage (“AWW”). For 2023 the AWW increased to $1,688.19, resulting in a maximum weekly benefit increase of $62.72, to $1,131.08.
  • Employee contributions in 2023 are set at 0.455% of the employee’s gross wages per pay period, up to a maximum annual contribution of $399.43 (a decrease of $24.28 from 2022).

Employers with employees in CA, CO, CT, DC, DE, MA, MD, NJ, OR, RI, or WA may also have to comply with paid family leave law obligations. Contact the HR Compliance Experts team if you have questions about whether your employees are covered by a state’s paid family leave laws.

Expressing Breast Milk in the Workplace

On December 9, 2022, NY Gov. Hochul signed a bill that amends NY State Labor Law, Section 206-c. [Her pen has been working overtime this month!] Although not effective until June 7, 2023, [Don’t you want to save something for another article?] this amendment requires employers to provide reasonable unpaid break time or allow for the use of paid break or mealtime each time an employee has a reasonable need to express breast milk. This obligation continues for up to three (3) years following childbirth. Employers are also obligated to provide a designated location for expressing breast milk. The designated location:

  • Must contain a chair, a working surface, lighting, and an electrical outlet;
  • Must be in close proximity to the employee’s work area, near clean running water, shielded from view, and free from intrusion by other people;
  • Cannot be in a restroom or toilet stall.

Although the designated location is not required to be used solely for expressing breast milk, the location must be available whenever an employee needs to express breast milk. Further, the employer must notify all employees that the designated location cannot be used for any other purpose while it is occupied by an employee expressing breast milk.

Lastly, [do you promise?] if refrigeration is available in the workplace, employers must allow employees to refrigerate expressed breast milk.

Federal labor law also provides nursing mothers with some minimal rights to express breast milk in the workplace. However, like NY, 29 additional states (AR, CA, CO, CT, GA, HI, IL, IN, KY, LA, ME, MD, MA, MN, MT, NE, NJ, NM, ND, OK, OR, RI, SC, TN, TX, UT, VT, VA, AND WA) and the District of Columbia have laws regarding the expression of breast milk in the workplace. Feel free to contact the HR Compliance Experts team if you have questions about this topic.  

On behalf of Amanda, Irene, and Chrissy [and me!], I wish everyone a safe and wonderful holiday season and a very Happy New Year!

If you have questions about compliance with state and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email HRAnswers@hrcexperts.com.
Did you enjoyed Frankly Speaking? Then let us know at HRAnswers@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at HRAnswers@hrcexperts.com, or call 585-565-3900.

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

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© 2022 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: We’ve got so much to catch up on!

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“It feels like forever since we’ve had a chance to catch up!” How many of us have said something similar repeatedly in the last few weeks and months? So many of the disconnects stem from “two weeks to flatten the curve” expanding beyond anyone’s expectations (are you talking about COVID or your waistline?). My sense of time passage is so distorted that I regularly find myself asking, “has it really been more than two years since…?”   

There’s been no disconnect in the pipeline of new and revised employment laws and regulations (I see what you did there). Here are a few of the highlights (don’t you mean lowlights?) employers need to know about:

Employee Notice of Employer Electronic Monitoring

Please don’t skip over this one because you don’t think it applies to your business! Essentially all software and business services provided for employee use – including phones, email, and Internet access – allow employers to monitor or otherwise intercept electronic communications,  transmissions, or internet access or usage. So, if you provide anything more than pencils to your employees, this applies to your business.

This amendment to the NY State Civil Rights Laws mandates that private employers in the state notify employees that “any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system including, but not limited to, the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.” (Who writes this stuff?!)

What does that mean for employers? As NY State employer mandates go, this one isn’t too bad (is that supposed to be comforting?). Here’s what employers must do by May 7, 2022, the statute’s effective date:

  • Provide all employees with a written notice containing the italicized language above;
  • Require all employees to sign and return a written acknowledgment form – many legal experts are strongly suggesting the acknowledgment form also include the statute’s language;
  • Post a copy of the same written notice in a conspicuous workplace location – preferably with other required employment posters – and/or on the company intranet where it is accessible to all employees;
  • Update the company’s electronic monitoring and IT policies contained in the employee handbook; and
  • Revise new employee onboarding processes to provide the written electronic monitoring notice and receive a signed acknowledgment before a new employee is subject to any electronic monitoring.    

Employers should also note four additional points: (i) the law appears to require notification to all employees, regardless of whether they are physically located in NY State, (ii) this is an annual notice and acknowledgment requirement (I wouldn’t expect anything less), (iii) each failure to properly notify an individual employee is a separate violation, and (iv) penalties of $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.

Amendments to the NY Paid Family Leave Law

As most employers are aware, under the NY Paid Family Leave Law (“PFLL”), eligible employees are allowed up to 12 weeks of paid family leave over a 52-week period. Until recently, when an employee used PLF leave intermittently, the maximum amount of leave was capped at 60 days. This cap assumed the employee worked, at most, a five-day workweek, i.e., five days per week for 12 weeks equals 60 days of leave. However, the NY State Workers’ Compensation Board amended the PFL regulations to eliminate the 60-day cap.

Effective January 1, 2022, the maximum number of intermittent leave days an employee may take is based on the average number of days the employee works per week during the measurement period. For example, an employee working an average of six days per week is now entitled to 72 days of intermittent leave – and an average of seven days per week equals 84 days of intermittent leave – over a 52-week period. Also, this amendment is applied prospectively for claims filed on or after the effective date.

While we’re on the topic of PFL, effective January 1, 2023, the current list of covered family members – the employee’s spouse, domestic partner, children, stepchildren, parents, stepparents, parents-in-law, grandparents, and grandchildren – will expand to include the employee’s biological, adopted, step-, and half-siblings.

Updates to the NY State Human Rights Law Regarding Workplace Sexual Harassment

The significant number of sexual harassment complaints raised against Andrew Cuomo once again put the spotlight on how employers handle allegations of inappropriate workplace behaviors. Effective March 16, 2022, an amendment to the NY State Human Rights Law (“HRL”) modified the definition of “unlawful retaliation” to include “disclosing an employee’s personnel files because he or she has opposed any practices forbidden under [the HRL] or because he or she has filed a complaint, testified, or assisted in any proceeding.” However, the amendment still allows employers to disclose personnel information “where such release is necessary to respond to a complaint, civil or criminal action, or judicial or administrative proceeding.”

Another amendment to the State’s HRL requires the NY State Division of Human Rights (“DHR”) to establish a confidential sexual harassment complaint hotline. Expected to be operational by July 14, 2022, the hotline will be staffed by “attorneys experienced in providing counsel related to sexual harassment matters who can provide pro bono assistance and counsel to individuals [who] contact the hotline.” Although the DHR is yet to issue compliance guidance, the amendment does require employers to post information about the hotline in the workplace (they can’t post what they don’t have!).  

NY State Mandates Retirement Savings Plans for All Employees

In an effort to “promote greater retirement savings for private-sector employees in a convenient, automatic, low-cost, and portable manner,” NY State has enacted legislation establishing the Secure Choice Savings Program (“Secure Choice IRA”). The legislation also requires “certain private-sector employers” to automatically enroll employees 18 years of age and older in the Secure Choice IRA program and deposit the employee’s after-tax contributions into a Roth individual retirement account.

For purposes of the Secure Choice IRA program, the state defines “certain private-sector employers” as any “person or entity engaged in a business, industry, profession, trade, or other enterprise in New York State” – including not-for-profit organizations – that has:

  • At all times during the prior calendar year [without interruption], employed at least 10 employees in the state;
  • Been in business for at least two years; and
  • Not offered a qualified retirement plan, including, but not limited to, a plan qualified under sections 401(a), 401(k), 403(a), 403(b), 408(k), 408(p), or 457(b) of the Internal Revenue Code of 1986, in the preceding two years.

Although the law requires their automatic enrollment in the Secure Choice IRA program, employees have the right to:

  • Participate in the Secure Choice IRA program and select the contribution level, expressed as a percentage of wages or as a dollar amount up to the applicable annual limit;
  • Change their contribution level at any time, subject to rules established by the state’s Secure Choice Savings Board (“Board”);
  • Take their IRA with them if and when they change jobs; and
  • Affirmatively elect to opt-out of the Secure Choice IRA program using the appropriate opt-out form.

Where an employee fails to select a contribution level, or affirmatively opt-out of participation, the employer is required to automatically enroll the employee at the three percent default contribution rate.

No employer contributions are made to Secure Choice IRAs. Also, employers are prohibited from terminating an existing qualified plan to participate in the Secure Choice IRA program.

Lastly (a sweeter word has never been written), there is no need for employers to take any immediate action (you couldn’t have started with that little tidbit?). The state’s Secure Choice Savings Board, which is responsible for administration and operation, has up to two years to implement the program. Then, once the Board opens the program, employers will have nine months to begin enrolling employees and comply with the program’s requirements. Although no firm date has been set, the Board held its first meeting in late January, and many experts believe the program will be up and running no later than December 31, 2022.

If you have questions about compliance with state and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email theexperts@hrcexperts.com.
Did you enjoyed Frankly Speaking? Then let us know at theexperts@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at theexperts@hrcexperts.com, or call 585-565-3900.

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

© 2022 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.

HRCE Compliance Update: NYS HERO Act Designation EXPIRED March 17, 2022

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The New York State Commissioner of Health, Dr. Mary Bassett, announced the following in a press release last week:
 
“On March 17, 2022, the designation of COVID-19 as an airborne infectious disease that presents a serious risk of harm to the public health under the HERO Act ended. Private sector employers are no longer required to implement their workforce safety plans.”
 
With COVID-19 infection and hospitalization rates decreasing and the HERO Act mask mandate and other preventative measures lifted last month in New York, the Health Commissioner has now allowed the designation to expire.
 
Therefore, employers are no longer required to implement their Disease Exposure Prevention Plan under the HERO Act, including daily health screenings and other requirements. However, employers must continue to maintain their safety plans, including as part of their employee handbooks, in the event of a later designation.
 
If you’re confused by an ever-increasing number of state and federal rules and regulations, you’re not alone. Fortunately, the HR Compliance Experts team is up-to-date and here to help! If you have questions about compliance with state and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email HRAnswers@hrcexperts.com.
 
Was this HRCE Compliance Update helpful? Then let us know at HRAnswers@hrcexperts.com  Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at HRAnswers@hrcexperts.com, or call 585-565-3900.
 
Posted by members of the HR Compliance Experts team.

© 2022 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 HR Compliance Experts LLC.

HRCE Compliance Update: NYS HERO Act Extended Again & Info on COVID Paid Sick Leave

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The New York State Commissioner of Health, Dr. Mary Bassett, once again extended the designation of COVID-19 as highly contagious, which requires employers’ HERO Act Disease Exposure Prevention Plans to remain activated through at least March 17, 2022. 

The Commissioner’s fifth consecutive extension of the COVID designation comes when the number of new COVID cases in NYS has dropped precipitously over the past several weeks. From a seven-day average high of just over 74,000 in early January to 4,744 on February 14. However, even with the significant drop in cases, the Commissioner’s continued designation of COVID-19 as highly contagious and a serious risk to public health was not unexpected. That’s because the decision is based, at least in large part, on the CDC continuing to identify the level of COVID transmission in all but one NY county as “high.”  

Exposure Prevention Plans Remain in Effect, But Unmasked!

Employers in NYS must continue enforcing their company’s Disease Exposure Prevention Plan under the HERO Act. This plan includes conducting daily health screenings for employees entering the workplace, among other requirements. However, EFFECTIVE FEBRUARY 10, 2022, employers’ plans are not required to include a mandate that all employees wear face coverings or masks. As explained in a recent Frankly Speaking, the NYS Department of Labor (“DOL”) updated its HERO Act model plan language to reflect the elimination of the state’s broader mask mandate applicable to all indoor public spaces. 

Updates to NYS COVID-Specific Paid Sick Leave

Sometimes, change leads right back to where you started, just more confused. This is certainly true of the NYS COVID-specific paid sick leave requirements. 

It’s not news to anyone that employers are required to provide COVID-specific paid sick leave benefits to employees under an order of quarantine or isolation. The number of paid leave days is generally based on headcount, with up to five days for smaller employers and up to 14 days for employers with 100 or more employees. What shouldn’t be, but often is, news to employers is that they are required to provide COVID-specific paid sick leave benefits to employees up to THREE TIMES. Well, at least that was the rule until February 2, 2022, when the DOL eliminated its previously issued guidance on the subject. With that change, there was no limit to the number of times an employer would be required to provide COVID-specific paid sick leave benefits to employees. 

Fortunately, the DOL has updated its FAQs to state once again that employees are eligible for COVID-specific paid sick leave benefits a maximum of three times. In addition, employers should be aware that: 

  • To qualify for COVID-specific paid sick leave benefits, an employee must be under an order of quarantine or isolation. 
  • The second and third orders of quarantine or isolation must be based on the employee testing positive for COVID-19. 
  • Also, an employee under a second or third order of quarantine or isolation must submit documentation to their employer from a licensed medical provider or testing facility attesting that the employee has tested positive for COVID-19, unless the employer administered the test. Therefore, employers are not required to accept the unverified results of an at-home COVID-19 self-test.
  • Employers must accept a properly completed “Affirmation of Quarantine” or “Affirmation of Isolation” as a valid order of quarantine or isolation. 
  • If an employee, not otherwise subject to an order of quarantine or isolation, is not allowed by their employer to work due to actual or potential exposure to COVID-19, the employer must continue to pay the employee their regular wages until either: 1) the employer permits the employee to return to work, or 2) the employee becomes subject to an order of quarantine or isolation. Once subject to an order of quarantine or isolation, the employee is then eligible for COVID-specific paid sick leave, or other COVID-specific paid leave benefits as required by law.
If you’re even more confused that ever, you’re not alone. Fortunately, the HR Compliance Experts team is up-to-date on the latest rules and we’re here to help you. If you have questions about compliance with state and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email HRAnswers@hrcexperts.com.
Was this HRCE Compliance Update helpful? Then let us know at HRAnswers@hrcexperts.com  Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at HRAnswers@hrcexperts.com, or call 585-565-3900.
 
Posted by members of the HR Compliance Experts team.

© 2022 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 HR Compliance Experts LLC.

Frankly Speaking: Did NY Gov. Hochul end workplace mask requirements for most employees, or NOT?

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Before you send me the angry email you’re composing in your head, let me explain (oh, go ahead, send him an angry email just for fun!).
 
As you already know, under one of NY Gov. Hochul’s previous orders, face coverings (just call them masks, face coverings sounds creepy) were required to be worn by employees, customers, and visitors in all indoor public places – including offices – unless proof of vaccination was required for entry. Then, yesterday Gov. Hochul announced the order would expire today, February 10, 2022. So now, most businesses, with certain exceptions, will no longer need to ensure that customers and visitors are masked. 
 
Many employers and employees celebrated the announcement (I have a feeling you’re going to ruin it for them), but something about the announcement bothered me. Then, it hit me (I hope it hurt!). The so-called “indoor mask mandate” that was about to expire and the NY HERO Act – which requires all employees to wear masks in the workplace – are two separate things! Why does that matter (you took the question right out of my head)? Because the HERO Act requirements are in effect until at least February 15, 2022.
 
On September 6, 2021, the NY commissioner of health designated COVID-19 as “a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.” That action triggered the HERO Act required all employers to implement their Airborne Infectious Disease Exposure Prevention Plans (you just triggered a cramp in my brain). Among the Act’s requirements was that every employer mandate all employees wear masks in the workplace – regardless of individual vaccination status – unless everyone on-site, not just employees, was fully vaccinated. Furthermore, unless addressed beforehand, employees would be required to continue wearing masks until at least February 15, 2022! 
 
Now, the Good News! NY updated the language in its HERO Act model plan as follows: 
  • EFFECTIVE FEBRUARY 10, 2022 Employees will wear appropriate face coverings in accordance with guidance from the State Department of Health or the Centers for Disease Control and Prevention, as applicable. Consistent with the guidance from the State Department of Health, if indoor areas do not have a mask or vaccine requirement as a condition of entry, appropriate face coverings are recommended but not required. It is also recommended that face coverings be worn by unvaccinated individuals, including those with medical exemptions, in accordance with federal CDC guidance. Further, the State’s masking requirements continue to be in effect for pre-K to grade 12 schools, public transit, homeless shelters, domestic violence shelters, correctional facilities, nursing homes, health care, child care, group homes, and other sensitive settings in accordance with CDC guidelines. New York State and the State Department of Health continue to strongly recommend face coverings in all public indoor settings as an added layer of protection, even when not required.
Employers should note that the acting commissioner of health may extend COVID’s designation as a highly contagious communicable disease beyond February 15, 2022. And, yes, that means employers may be required to keep their Airborne Infectious Disease Exposure Prevention Plans in effect. But, with this change in the model policy language, most employers now have the option of whether to require employees to wear masks at work.  
If you have questions about compliance with state and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email theexperts@hrcexperts.com.
Did you enjoyed Frankly Speaking? Then let us know at theexperts@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at theexperts@hrcexperts.com, or call 585-565-3900.

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

© 2022 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.

HRCE Compliance Update: NYS HERO Act Designation and Mask Mandate Extended

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The New York State Commissioner of Health once again extended the designation of COVID-19 as highly contagious, which requires employers’ HERO Act safety plans to remain activated through at least February 15, 2022. The Commissioner also extended the State’s mask mandate through February 1, 2022.

With the State’s recent surge of COVID-19 cases, overwhelmingly due to the Omicron variant, the Commissioner’s actions were not unexpected. A decision is expected by February 15, 2022, on whether, based on the level of COVID-19 transmission rates at the time, to extend the designation beyond that date.

Employers in NYS must continue enforcing their company’s Disease Exposure Prevention Plan under the HERO Act. This includes, among other requirements, conducting daily health screenings and mandatory masking in workplaces unless all individuals are fully vaccinated.

Separately but related, based on the NYS Health Commissioner’s revised Determination on Indoor Masking, the State’s mask mandate is extended through at least February 1, 2022. Under this mandate, masks are required for employees, customers, and visitors in all indoor public places – including offices – unless the business or venue requires proof of vaccination to enter.

Although the HERO Act designation and the mask mandate now have different expiration dates, they effectively share the same employee masking requirements. Therefore, regardless of the mask mandate’s current February 1, 2022, expiration date, employers should expect to continue employee masking requirements under the HERO Act through at least February 15, 2022.

If you have questions about compliance with state and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email HRAnswers@hrcexperts.com.
Was this HRCE Compliance Update helpful? Then let us know at HRAnswers@hrcexperts.com  Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at HRAnswers@hrcexperts.com, or call 585-565-3900.
 
Posted by members of the HR Compliance Experts team.

© 2022 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 HR Compliance Experts LLC.

Who’s on First? NYS and the CDC on the Same Page…For Today!

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One of my favorite childhood memories is of watching the slapstick comedy team forever known as Abbott and Costello (I knew you were old, but wow!). While definitely from a different era and not politically correct by today’s standards, Abbott and Costello were comedy geniuses. But, of all their work, “Who’s on First” is likely their best-known skit. It also perfectly represents what happens when I try to explain most state and federal COVID-19 regulations and guidance.     

In case you haven’t heard, the New York State Department of Health (“NYDOH”) updated its December 24, 2021, Advisory on Shortening Isolation Period for Certain Fully Vaccinated Healthcare Workers and Other Critical Workforce guidance document. This guidance, Interim Updated Isolation and Quarantine Guidance, is intended to clarify several points (how can you write the words “clarify” and government “guidance” without falling off your chair laughing?) and adopts recommendations from the federal Centers for Disease Control and Prevention (“CDC”) issued in a press release titled, CDC Updates and Shortens Recommended Isolation and Quarantine Period for General Population. (OK, enough with the links to government documents that nobody understands…including the government!)

Without creating an Ishikawa diagram (a what?! Never mind, I’m sure I wouldn’t understand it.), the following bullet points should help explain the most recent guidance:

  • NYS is now aligned with the updated CDC recommendations, which allow for shortened isolation and quarantine requirements for the general population.

The NYS Interim Guidance makes the following recommendations regarding isolation:

  • An individual exhibiting symptoms of COVID-19 must isolate for five days – where day zero is the day symptoms first began.
  • An asymptomatic individual who tests positive for COVID-19 must also isolate for five days – where day zero is the day the individual took the first COVID-19 test with a positive result.
  • Isolation will end following the five-day isolation period if the individual is asymptomatic or if symptoms are resolving. The individual must then wear a well-fitting mask (KN95 is recommended) while in the presence of others for an additional five days.
  • Individuals who are unable to wear a well-fitting mask (KN95 is recommended) following the five-day isolation period must follow standard (i.e., not shortened) Isolation Guidance.
  • Individuals who are moderately to severely immunocompromised should also continue to follow standard (i.e., not shortened) Isolation Guidance.

The NYS Interim Guidance provides further recommendations regarding quarantine for individuals who were exposed to COVID-19, where day zero is the last date of exposure:

  • An individual NOT fully vaccinated must quarantine for five days; then, they must wear a well-fitting mask (KN95 is recommended) while in the presence of others for an additional five days.
  • Likewise, a fully vaccinated individual eligible for, but who has not yet received a booster (or received a booster less than two weeks before the first date of exposure), must quarantine for five days; then, must wear a well-fitting mask (KN95 is recommended) while in the presence of others for an additional five days.
  • A fully vaccinated individual who received a booster at least two weeks before the first date of exposure is not required to quarantine. However, the individual must wear a well-fitting mask (KN95 is recommended) while in the presence of others for 10 days after the last date of exposure.
  • A fully vaccinated individual not yet eligible for a booster is not required to quarantine. However, the individual must wear a well-fitting mask (KN95 is recommended) while in the presence of others for 10 days after the last date of exposure.
  • If possible, the individual should test for COVID-19 with either a Nucleic Acid Amplification Test (i.e., PCR) or Antigen Test on day five of the isolation period.
  • If symptoms appear, the individual must quarantine and should test for COVID-19. In this situation, the quarantine will end when the test is negative. If the individual does not test for COVID-19, they must isolate according to the guidance above.

Wait, There is More!

While I have your attention, I’d like to share some of the FAQs we’ve received from our clients through our HR Answerline.

Q: Please clarify COVID-specific sick pay requirements for employers and who is eligible.

A: NYS requires employers to provide employees with job-protected COVID-specific sick pay based on the following:

  • Small businesses with 10 or fewer employees and a net annual income less than $1 million in the previous year:
    • Must provide employees with unpaid leave for the duration of their quarantine or isolation period.  
    • Employees on unpaid leave may receive COVID-specific benefits through the employer’s Paid Family Leave and disability benefits policy for the duration of the order of quarantine or isolation.
  • Small businesses with 10 or fewer employees and a net annual income of $1 million or more in the previous year, and:
  • Medium-sized businesses with 11-99 employees: 
    • Must provide employees with at least five days of COVID-specific paid sick leave.
    • Employees may receive COVID-specific benefits through the employer’s Paid Family Leave and disability benefits policy following the five days of COVID-specific sick leave.  
  • Large businesses with 100 or more employees: 
    • Must provide employees with at least 14 days of COVID-specific paid sick leave. 
    • Employees may receive COVID-specific benefits through the employer’s Paid Family Leave and disability benefits policy following the 14 days of COVID-specific sick leave.

Q: Are employees who continue to test positive for COVID-19 at the end of a COVID-19 Order period eligible for additional periods of mandatory NYS COVID-19 quarantine paid leave?

A: Employees who continue to test positive for COVID-19 at the end of a mandatory order of quarantine or isolation are “deemed” to be subject to a second mandatory order of quarantine and are immediately eligible for another period of COVID-19 quarantine paid leave.

Q: Are employees not subject to COVID-19 orders but required to remain out of work by their employer due to a confirmed or potential exposure to COVID-19, eligible for COVID-19 quarantine paid leave?

A: Yes, but with a twist. Employees not subject to mandatory orders of quarantine or isolation but told by their employer to remain out of work due to a potential or confirmed exposure to COVID-19 must continue to be paid their regular wages until either:

  • The employer allows the employee to return to work; or
  • The employee is subject to a COVID-19 order, at which time the employee will receive COVID-19 quarantine paid leave for the remainder of the order.

Q: Is there a limit on the number of times an employer must provide employees with COVID-19 quarantine paid leave?

A: Yes. Employees are limited to a total of three periods of COVID-19 quarantine paid leave. However, to be eligible for the second and third periods of paid leave, employees must first test positive for COVID- 19.

Q: Is NYS COVID-specific paid leave the same as the annual NYS Paid Sick and Safe Leave employers are required to provide employees?

A: NO. NYS Paid COVID-specific leave is separate from the mandated annual Paid Sick and Safe Leave (“PSSL”) benefit employers must provide employees. Further, employers are prohibited from requiring employees to use any available PSSL or deducting from an employee’s available PSSL for COVID-related absences.

Q: How do we pay commissioned employees?

A: COVID-specific sick pay for employees usually paid on a commission basis is the same as any other paid leave benefits they would otherwise receive. For example, if a commissioned salesperson is paid $150 per day when on vacation or other paid leave, they would likewise receive $150 per day for COVID-specific paid leave. Note, the employee cannot be paid less than minimum wage. For example, if an employee generally works eight hours per day, they must receive at least $105.60 (8 x $13.20 per hour) in most areas of NYS. Certain fast-food employees and employees in NYC and Nassau, Suffolk, and Westchester Counties must be paid at least $120.00 (8 x $15.00 per hour).

Q: Is an employee eligible for COVID-specific pay if their child has tested positive?

A: COVID-specific sick pay is not required unless the employee has a covered COVID event. However, if the employee’s minor dependent child is under a mandatory or precautionary order of quarantine or isolation, the employee may be eligible to take Paid Family Leave (“PFL”) to care for them. This benefit is not available if the employee is able to work through remote access or other means. In 2022, the PFL wage benefit for COVID-19 quarantine leave is 67% of the employee’s average weekly wage (AWW), up to a maximum weekly benefit of $840.70. The AWW is the average of the employee’s pay for eight weeks in which they worked and received wages prior to starting PFL.

That’s all for now (why such a short post…NOT!). But, stay tuned for updates on the federal “Vaccine or Test” mandate, and any other issues that are sure to cause additional confusion for us all!   

If you have questions about compliance with state and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email theexperts@hrcexperts.com.
Did you enjoyed Frankly Speaking? Then let us know at theexperts@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at theexperts@hrcexperts.com, or call 585-565-3900.

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

© 2022 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.

The OSHA COVID-19 Vaccine-or-Test Order Is On Again…But Will It Stay On?

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COVID Vaccine sign

As you likely know, late Friday, December 17, 2021, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued a 2-1 decision lifting the stay on the Occupational Safety and Health Administration (“OSHA”) COVID-19 Emergency Temporary Standard (“ETS”). This action, which allows OSHA to move forward with implementing the ETS, removed the stay previously issued by the Fifth Circuit. (Is this going to be another long boring article about stuff nobody but you understands or cares about?) However, immediately following the Six Circuit’s decision, it was appealed to the U.S. Supreme Court. Justice Brett Kavanaugh, who handles all emergency appeals for the Sixth Circuit, subsequently ordered the Biden Administration to file its briefs on the matter by 4:00 pm on December 30, 2021 (you should read one of your articles to your grandchildren as a bedtime story, it’s guaranteed to put them right to sleep!). With that timeline, it’s unlikely we’ll have any decision until after January 1, 2022.

In the meantime, employers with 100 or more employees should prepare to implement the OSHA COVID-19 ETS in their workplaces. A good starting point is; OSHA’s ETS FAQs. OSHA stated that it will not issue citations for non-compliance with any requirements of the ETS before January 10, 2022. Further, OSHA will not issue citations for non-compliance with the ETS testing requirements before February 9, 2022, as long as the employer exercises reasonable, good faith compliance efforts. To help support that they’ve demonstrated good faith compliance efforts, employers should: 

  • Notify all employees of the ETS requirements—as a condition of employment, they will need to get vaccinated or be required to test weekly.
  • Survey employees on their vaccination status, including a request for proof of vaccination, and record their vaccinated or unvaccinated status in a spreadsheet or other roster. The ETS further requires employers to maintain this documentation, including copies of each employee’s proof of vaccination, and record any employee who refuses to respond or provide proof of vaccination as unvaccinated.
  • Provide paid time off for employees to get the COVID-19 vaccine and/or to recover from effects of the vaccine.
  • Develop and implement a COVID-19 policy that requires employees be fully vaccinated against COVID-19 or, for unvaccinated employees, weekly testing. The policy must also state that unvaccinated employees must wear a mask in the workplace  and while with other employees in a vehicle or when together for work-related purposes. The policy must also include protocols for screening non-employees entering the workplace.
  • Enforce necessary quarantine periods for employees who test positive for COVID-19.
  • Where testing will be used as an option, begin procuring tests and/or exploring local options for testing that may be used and begin implementing the testing option on or before February 9, 2022.

This is a complex mandate (wow, King of the understatements on this one!) with an exhaustive list of questions – many not yet thought of – and don’t forget about the intersections with state and local laws and regulations (how could we!). My team and I will continue to monitor the situation over the coming days and weeks and will keep you updated along the way. So, buckle up and get ready for bumpy sleigh ride!

On behalf of everyone at HR Compliance Experts (and me, Frank’s snarky alter ego), we wish you a safe and happy holiday season and a Happy New Year!

If you have questions about compliance with state and federal regulations and mandates, or any of the services HR Compliance Experts offers, contact us at theexperts@hrcexperts.com, or call 585-565-3900.
Did you enjoyed Frankly Speaking? Then let us know at theexperts@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at theexperts@hrcexperts.com, or call 585-565-3900.

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 – Gifts to NY Employers Just Keep Coming!

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Santa with List

If you didn’t know this announcement was coming, I have a large box of masks made by Oregon Gov. Kate Brown I’ll sell you at a great price. (Santa said to stop picking on Gov. Brown or you’re going on the “naughty” list, one of the elves thinks her mask is really cool.) In addition to their incredibly generous gift of a mask mandate just in time for the holidays, NY Gov. Kathy Hochul and NY Commissioner of Health, Dr. Mary Bassett, again extended COVID’s “highly contagious” designation through at least January 15, 2022. That means employers must keep their HERO Act safety plans in place and active through at least January 15, 2022 as well. 

As I previously wrote about in July, September, and October (I think you need to find something else to write about), the NY HERO Act is intended “to protect employees against exposure and disease during a future airborne infectious disease outbreak,” and is activated when the state’s health commissioner designates, in this case, COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to the public health. First activated on September 6, 2021, the HERO Act’s “activated” status has been extended for the third time, now through January 15, 2022. With that extension, employers must continue measures such as daily health screenings for all employees.

Further, Gov. Hochul’s mask mandate, effective December 13, 2021, requires all employees, customers, and visitors in all indoor public places—including office buildings and spaces—to wear a mask at all times, with very limited exceptions, unless the covered business or venue requires proof of vaccination from everyone before they enter. (How’s that working out so far?) Lastly, (you promise?) whether by design or coincidence (my money is on dumb luck), both the most recent extension of the HERO Act and the mask mandate are effective through January 15, 2022. I’m sure I can get another box of masks from Gov. Brown, so let me know  you want to wager on whether they’ll be extended.  

If you have questions about compliance with state and federal regulations and mandates, or any of the services HR Compliance Experts offers, contact us at hranswers@hrcexperts.com, or call 585-565-3900.
Did you enjoyed Frankly Speaking? Then let us know at theexperts@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at hranswers@hrcexperts.com, or call 585-565-3900.

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 – Nothing says “Happy Holidays” like a new mask mandate!

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Gov Kate Brown

Nothing fills the hearts of my team at HR Compliance Experts with holiday joy like a mid-December mask mandate! In fact, instead of an ugly sweater contest, I think we’re having an ugly holiday mask contest this year. (If you’re joking, you’re not funny, and if you’re serious, I hope your entire team quits the minute their holiday bonuses hit their bank accounts!) You should have been there when we learned that NY Gov. Kathy Hochul (not to be confused with Oregon Gov. Kate Brown (left), the undisputed ugly holiday mask champion for life) directed the state’s Department of Health (“DOH”) to issue a new mask mandate effective Monday, December 13, 2021. We were so excited that the walls of our virtual office were shaking! (OK, can we move this along, people have better things to do.)     

Effective Monday, December 13, 2021, the mask mandate remains in effect through January 15, 2022, when the DOH will “reevaluate based on current conditions.” In her statement, Gov. Hochul cited a “winter surge” in COVID-19 cases and hospitalizations throughout NY State as the reason for the new mandate. According to the state’s recently released guidance, “masks will be required to be worn in all indoor public places unless businesses or venues implement a vaccine requirement.” Further, “new business and venue requirements extend to both patrons and staff,” and “businesses and venues that implement a mask requirement must ensure all patrons two years and older wear a mask at all times while indoors.” 

The mask mandate defines an “indoor public place” as any indoor space that is not a private residence. That includes specific public settings, such as health care and adult care facilities, K-12 schools, correctional facilities, homeless shelters, public transportation centers and hubs, and “all indoor public places” not otherwise covered by the mandate. (So, in non-government speak, EVERYWHERE!) Violators of the mask mandate may be subject to a maximum fine of $1,000 per violation. 

The DOH issued a list of FAQs to answer some common questions and help clarify (now that is funny!) potential issues. For example:

Q: Does this policy apply to office spaces?

A: Yes, the requirement applies to all non-private residences, including office spaces. If the office does not require proof of vaccination as a condition of entry, everyone must wear masks at all times regardless of vaccination status except when eating, drinking, or alone in an enclosed room. 

Q: What about businesses covered under the NY HERO act?

A: Employers must continue to comply with the NYS Health and Essential Rights Act (NY HERO ACT)…For purposes of complying with the NY HERO Act, the Commissioner’s Determination constitutes Department of Health guidance related to face coverings, meaning employers must ensure their employees adhere to masking requirements or require proof of vaccination as a condition of entry into the business.

Q: What are the Details for a Business/Venue Proof of Vaccination Requirement?    

A: Businesses and venues that implement a proof of vaccination requirement must ensure that anyone 12 years of age or older is fully vaccinated before entering indoors. Businesses/venues can accept Excelsior Pass, Excelsior Pass Plus, SMART Health Cards issued outside of New York State, full-course vaccination through NYC COVID Safe app, a CDC Vaccination Card, or other official immunization record.

In accordance with CDC’s definition, fully vaccinated is defined as 14 days past an individual’s last vaccination dose in their initial vaccine series—14 days past the second shot of a two-dose Pfizer-BioNTech or Moderna vaccine or 14 days past the one-shot Janssen/Johnson & Johnson vaccine. The State also accepts WHO-approved vaccines for these purposes. Parents and guardians can retrieve and store an Excelsior Pass or Excelsior Pass Plus for children or minors under their legal guardianship.    

Q: How will these requirements be enforced? 

A: It is our expectation that New Yorkers will understand the importance of following this requirement as we enter this holiday season, where a surge in cases is expected. Enforcement will be done by the local health departments, and the maximum civil penalty is a $1,000 fine. 

Q: Who could receive the fine, the business or venue, or an individual in violation of the requirements?

A: Pursuant to regulation, individuals or business/venue entities that violate the determination are subject to a maximum fine of $1,000 for each violation. Local health departments can enforce these requirements.    

Employers in NY State should also note that, if a mask policy is implemented for employees—i.e., if the employer does not require proof of vaccination to enter the workplace, so everyone must wear masks at all times regardless of vaccination status except when eating, drinking, or alone in an enclosed room—the employer must provide employees with an adequate supply of face coverings/masks at no cost to the employees. 

My team and I will continue to burn the midnight oil (you realize no one under the age of 90 knows what that means, right?) to monitor the state’s guidance and FAQs and provide updates as appropriate. In the meantime, get busy with your own ugly holiday mask contest…and don’t forget to send us pictures!   

If you have questions about compliance with state and federal regulations and mandates, or any of the services HR Compliance Experts offers, contact us at HRAnswers@hrcexperts.com, or call 585-565-3900.
Did you enjoyed Frankly Speaking? Then let us know at theexperts@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at HRAnswers@hrcexperts.com, or call 585-565-3900.

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.