As we near the end of another year of COVID-19 and face yet more surges in cases, governments are working to adapt in order to keep employees safe. In addition to new COVID-19 laws and regulations, incoming New York State Governor Hochul has signed a number of other laws affecting employers.
At Frankfurt Kurnit, we are constantly monitoring all changes at the Federal, State and local levels to ensure clients avoid penalties and legal liability. Employers should ensure all handbooks and policies are updated and in compliance. Here is a summary of what employers need to know.
Federal Vaccine-or-test Mandate for Employers with 100+ Employees (Breaking News): Late Friday night (December 17, 2021), the 6th Circuit Court of Appeals lifted the stay on the Occupational Safety and Health Commission’s (OSHA) vaccine-or-test emergency standard. While the ruling has been appealed on an emergency basis to the United States Supreme Court, as of now the January 10 deadline is back in effect and all employers nationally with at least 100 employees should prepare to comply with the requirement. OSHA has advised that as an employer is exercising reasonable, good faith efforts to come into compliance with the standard, it will not issue citations for noncompliance with the testing requirements prior to February 9, 2022.
New York City Vaccine Mandate (All Private Employers): On December 9, 2021, Mayor de Blasio announced that effective December 27, 2021, NYC private employers of all sizes must implement a vaccine mandate for all workers working in the presence of at least one person, and must maintain records documenting each worker’s vaccine status. For more details, please see our prior alert here. Guidelines for how to evaluate, provide and document reasonable accommodations can be found here.
New York State Vaccine Leave: While not new for 2022, by way of reminder, NYS currently requires that employers provide varying amounts of paid or unpaid time off (depending on employer size) for COVID-19 related sick leave or to receive and recover from vaccines.
New York State Wage and Hour Update: While New York City will not see any increase in the minimum wage or minimum exempt salary basis in 2022, rates will increase in Long Island and Westchester, and in other parts of New York State. Effective December 31, 2021, minimum wage in Long Island and Westchester will increase from $14/hour to $15/hour, and the minimum exempt salary for the administrative and executive exemptions will increase from $1,050 to $1,125. In the rest of the state, minimum wage will increase from $12.50/hour to $13.20/hour and the minimum exempt salary for administrative and executive exemptions will increase from $937.50 to $990. Employers in affected parts of the state should remember to update their minimum wage posters.
Employer-Mandated Retirement Savings Programs: On October 21, 2021, Gov. Hochul signed an amendment to Section 130 of the New York General Business Law, requiring certain private sector employers to automatically enroll their employees in New York State’s Secure Choice Savings Plan – which is an automatic enrollment payroll deduction IRA. Employees who do not wish to participate can opt out of the program at any time. This law, which is effective immediately, applies to private employers who: (i) have at all times during the previous calendar year employed at least ten employees in the state, (ii) have been in business at least two years, and (iii) have not offered a qualified retirement plan in the preceding two years.
Shared Work Programs: On October 23, 2021, Gov. Hochul signed a new law codified at Section 605-A of the New York Labor Law, authorizing employees facing a potential layoff to petition their employer to participate in a shared work program. The majority of employees may now submit a request for a shared work program in writing to the employer before the layoff or within 10 days of the layoff. Employers have seven days to respond and are not required to implement the program. If utilized, however, the shared work program will allow employers to reduce all employee hours but keep the entire staff working to help avoid layoffs. The state would then help the workers with reduced hours by providing unemployment assistance to cover some part of lost wages. This law is effective immediately.
Protection from Retaliation: On October 28, 2021, Gov. Hochul signed legislation that amends Section 740 of the New York Labor Law to provide additional protections to private sector employees who report illegal or dangerous business activities. The law enhances employee protections from employer retaliation in a number of ways—three of which are particularly significant. First, it expands the definition of employee to include former employees and independent contractors. Second, it expands the scope of retaliatory action to include (i) actions or threats to take actions that would adversely impact a former employee’s current or future employment, and (ii) contacting or threats to contract immigration authorities. Third, the statute of limitations was extended to two years.
New Workplace Privacy Law: On November 8, 2021, Gov. Hochul signed new workplace privacy legislation (Civil Rights Law §52-c) into law. Commencing May 7, 2022, private employers of all sizes with a “place of business’ in New York must inform employees in writing at the time of hire and annually if the employer “monitors or otherwise intercepts” telephone or email communications or internet access or usage by the employee. The notice must be in writing (hard copy or electronic) and must be acknowledged by the employee in writing (hard copy or electronic). Employers must also post notice of monitoring in a conspicuous place. The law does not apply to processes that 1) are designed to manage the type of volume of incoming or outgoing electronic mail or telephone voicemail or internet usage, 2) are not targeted to monitor or intercept the activities or a particular individual and 3) are performed solely for the purposes of computer systems maintained and/or protection. Penalties for noncompliance may be imposed by the NY Attorney General of up to $500 for a first offense, $1000 for a second offense, an $3000 for a third and all subsequent offenses. New York employers should modify current onboarding processes and review their current electronic monitoring protocols and amend to ensure compliance.
Expansion of Anti-Discrimination Laws: Effective March 12, 2022, domestic workers will be protected under New York City anti-discrimination laws. This means, among other things, that employers may not run credit checks during the hiring process and cannot ask about prior arrests, youthful offender adjudications or sealed convictions.
Paid Family Leave Update: In 2022, New York State Paid Family Leave will provide eligible employees with up to 12 weeks of job protected, paid time off for designated purposes, at a rate of 67% of their average weekly wage up to a state cap. For 2022, the state cap is $1,594.57, which means the maximum weekly benefit is $1,068.36. Expanded coverage for caring for siblings will not go into effect until 2023.
Salary Ranges in Job Descriptions: (NYC Only). The NYC Council recently passed a bill that is still awaiting signature with respect to mandatory inclusion of salary ranges in job descriptions. If signed, commencing 120 days later, it will become an unlawful discriminatory practice for employers of 4 or more employees if they do not post in job descriptions for NYC-based positions the minimum and maximum salary that the employer believes in good faith that it would pay at the time the job was posted.