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Several recent New York City human rights law amendments in the past year have steadily increased worker protections applicable to New York City employers. As is no surprise, the mayor’s office recently adopted yet another new amendment passed by the New York City Council amending the New York City Human Rights Law (NYCHRL) effective October 15, 2018.

What is particularly noteworthy here are the administrative obligations placed on New York City employers under this new law. Once effective, New York City employers are required to engage in a “cooperative dialogue” when an employee requests a reasonable accommodation (whether for disability-related, religious, or other covered reasons) and to document that process. Employers with operations in New York City should be aware of these new changes and grow accustomed to their administrative burdens prior to the enactment’s effective date.

Under the NYCHRL, as most New York City employers are already aware, reasonable accommodations (such as workplace rule changes and unpaid leave) must generally be provided to employees for any covered reasons. The recent amendment expands upon this existing requirement, and requires employers to engage in a “cooperative dialogue” with an employee who requests a reasonable accommodation: (1) for religious needs; (2) due to a disability; (3) as a result of pregnancy, childbirth or a related medical condition; or (4) as a result of domestic violence, sex offenses or stalking. This is similar to already existing “interactive process” requirements commonly applied to disability accommodations.

However, the new amendment now explicitly requires such dialogues by law for all covered reasons found within the NYCHRL. Employers are specifically required to engage in a good faith written or oral conversation with the employee regarding the employee’s accommodation needs, potential accommodations (including alternatives to the accommodation proposed by the employee), and any difficulties that the proposed accommodations could pose for the employer. At the conclusion of this cooperative dialogue, the employer must provide the employee with a written final determination identifying any accommodation that was granted or denied.

That last part, involving required written determinations, is likely to be the most difficult issue for employers (from an administrative standpoint). While documenting accommodation requests is already a best practice, this amendment makes such documentation mandatory. Now, failure to provide a written determination will potentially constitute grounds for an unlawful discrimination finding. Moreover, it is unclear if this written determination requirement would apply to all accommodations, including the littlest and most mundane of accommodations granted in the workplace. For example, would a written determination be required for a request to attend a doctor’s appointment, to leave early for a migraine, or to take a religious holiday? Most likely the answer is “yes” as of now, and any failure to provide a determination could result in liability under the law.

If prior to the effective date additional guidance is issued by the New York City Commission on Human Rights that helps clarify or to mitigate the law, we will prepare a follow-up to this piece. Otherwise, employers should update their employee handbooks and leave policies accordingly, and begin training managers and human resources professionals to comply with these newest legal requirements in New York City.

On January 12, the Maryland General Assembly overrode Governor Larry Hogan’s veto and passed the Healthy Working Families Act. The Act will go into effect on February 11, 2018, unless the General Assembly passes legislation delaying its implementation.  Yesterday, one of the principal sponsors of the law did introduce legislation that would delay enforcement of the law until April 2018.  We will keep you posted on whether the implementation of the Act is delayed.

In the meantime, the Act requires Maryland businesses with at least 15 employees to offer paid sick and safe leave as well as requiring smaller businesses to provide unpaid sick and safe leave.

More specifically, the Act requires employers with at least 15 employees, regardless of whether those employees are seasonal, temporary, part-time, or full-time, to offer eligible employees the ability to earn up to 40 hours of paid leave a year.  The 40 hours can be awarded at the beginning of each year or accrued at a rate of one hour for every 30 hours worked.  Moreover, employees can carry over up to 40 hours of paid leave a year.  Employers can cap use of paid leave at 64 hours per year and are not required to pay out unused, accrued sick leave when an employee is terminated.  Employers with up to 14 employees must provide unpaid earned sick and safe leave under the same terms.

The paid leave can be used to: 1) care for the physical or mental health of the employee or a family member, including obtaining preventative care; 2) take maternity or paternity leave; or 3) obtain relief in response to domestic violence, stalking, or sexual assault of the employee or a family member.

There are some exceptions.  For example, the Act does not apply to workers who 1) regularly work less than 12 hours a week; 2) are under the age of 18; 3) are certain independent contractors; 4) are certain agricultural workers; or 5) work on an as-needed basis in the health and human services industry.  Additionally, there are exceptions for employers in the construction industry that are parties to collective bargaining agreements.

Additionally, employers may set some restrictions on the use of paid leave such as 1) only allowing the use of paid leave after an employee has worked 106 calendar days from the date of hire; 2) require up to seven days’ notice for foreseeable leave; and 3) implementing policies to prevent improper use.  Employers can also obtain verification regarding appropriate use of paid leave if it is used for more than two consecutive scheduled shifts or between the 107th and 120th calendar days of employment and the employee agreed to provide verification at the time of hire.

Employers are required to notify employees of their rights under the Act and to provide a written statement each pay period detailing the amount of earned leave available for use.  The Department of Labor, Licensing, and Regulation (DLLR) has been directed to create a model notice, but it is not clear when such notice will be available.

Next Steps for Employers

Employers should immediately review and revise their paid time off (PTO), sick, and other leave policies to ensure compliance with the Act.  At the same time, employers should monitor any action the General Assembly takes to delay implementation.  In the review and revision process, particular care should be given to:

  • Recordkeeping: employers must keep records regarding leave accrual and use for three years;
  • Notice: if DLLR does not issue a model notice before the implementation date, employers must create their own;
  • Payroll systems: employers must update payroll systems to report leave balances on pay stubs and meet the Act’s requirements;
  • Applicability: the Act applies to all part-time employees who do not fall into one of the exempt categories; and
  • Carryover: employers must allow employees to carry up to 40 hours of paid leave time over per year (subject to the 64 hour use limitation)

UPDATE (February 2, 2018): Today, the bill to delay the Act’s implementation received a favorable vote from the Maryland Senate Finance Committee and will move to the full Senate for a vote. The bill passed out of Committee with two important amendments that will benefit employers.

  • First, the Act would not take effect until July 1, 2018, rather than April 11, 2018, giving employers additional time to implement policies and procedures in compliance with the Act.
  • Second, leave accrual – currently slated to begin on February 11, 2018 – would also not begin until July 1. This should eliminate issues that would have arisen as leave accrued prior to employers being required to track it and in the absence of any regulations from the Department of Labor, Licensing, and Regulation.

The bill still has to pass both the Senate and the House of Delegates with a 3/5 vote if the Act’s implementation is to be delayed due to the bill’s designation as emergency legislation. The full Senate is expected to vote on the bill as early as Monday, February 5th.

UPDATE (February 8, 2018): The Senate passed the bill delaying the Act’s implementation, as amended, by a vote of 29-17.  The bill will now move to the House of Delegates for consideration where it will face an uphill battle due to the short time frame until the Act’s effective date.  Additionally, key legislators in the House have expressed opposition to delaying the Act’s implementation.

UPDATE (February 12, 2018): The Act is now in effect as the House of Delegates chose not to delay implementation.  A sample employee notice poster created by DLLR is here: http://www.dllr.maryland.gov/paidleave/paidleaveposter.pdf

Rachel Severance is an associate in the firm’s Labor and Employment Department, resident in its Washington D.C. office.

As of January 1, 2018, all New York employers, regardless of size, must offer paid family leave to their employees.  Hopefully, employers already have revised policies in anticipation of the law taking effect.

If employers have not revised handbooks or other policies, the law does not require employers to have a paid family leave policy.  However, the state is strongly suggesting that employers do so.

New York has a website devoted to Paid Family Leave that provides resources to employers.  They have also issued a guide that contains a sample handbook policy, which can be found here.

New York has also issued a fact sheet that outlines the basic responsibilities employers have under the law.

Employers with questions are encouraged to consult their labor counsel.

On November 6, 2017, the New York City Council passed Int. 1313-2016 that amends the Paid Sick Leave Law.  Don’t panic, employers.

The law does not require additional leave. It merely adds another covered reason that employees may use earned paid time off.  New York City’s paid sick leave law will now be entitled the “Earned Safe and Sick Time Act.”

Employees will be able to use earned safe/sick time for the following reasons if the employee or the employee’s family member has been the victim of a “family offense matter”, sexual offense, or human trafficking:

  1. to obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking;
  2. to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking, or human trafficking;
  3. to meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding, including but not limited to, matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing or consumer credit;
  4. to file a complaint or domestic incident report with law enforcement;
  5. to meet with a district attorney’s office;
  6. to enroll children in a new school; or to take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.

Employers should update policies to make sure they are compliant with the new law as the law is effective May 5, 2018.

Employers will also be required to issue to all employees a Notice of Employee Rights notice to employees no later than June 4, 2018.  New hires hired on or after May 5, 2018 should be given a copy of the revised Notice of Employee Rights as well.  The DCA will be issuing a revised Notice of Employee.  We will update you when that is issued.

On September 20, 2017, the Seventh Circuit Court of Appeals issued a decision that a requested three month medical leave due to a disability was not a reasonable accommodation under the ADA.  Although there is some discussion of the particular facts in the case, much to the delight of management-side attorneys like me, the case goes beyond saying that the leave was not reasonable in this particular circumstance.

Instead the Court noted that the ADA is not a medical leave statute.  The Court held that an accommodation need only be granted under the ADA if it will help the employee work.  Since an employee who needs leave cannot work, then they cannot be considered a qualified individual with a disability.

The Court does note that a brief leave of days or perhaps a few weeks, might, in some circumstances be a reasonable accommodation.  But, and here’s the good part, “a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. To the contrary, the “[i]nability to work for a multi-month period removes a person from the class protected by the ADA.”

The subject of how long must an employer grant leave to a disabled employee is a common one. Often, it is the source of great frustration for employers.  Although there is still no bright-line test as to just how much leave must be granted, this case certainly seems to limit that time to less than two months for employers within the Seventh Circuit.

Employers should still be cautious as many state and local laws that require reasonable accommodations for disabilities may not be interpreted in the same manner.

If you want to read more, the case is Severson v. Heartland Woodcraft Inc. 2017 U.S. App. LEXIS 18197.

The devastation in Texas is breathtakingly sad.  Although the storm has passed, recovery efforts continue.  For many, it will take months and years to recover.

Today I received my first call from a client asking about its obligations towards an employee who will be traveling to Texas to help with the recovery efforts.  Many states do have laws that protect first responders from being disciplined or terminated for missing work while responding to an emergency.

New Jersey, for example, is one such state that has a law that provides that an employer cannot “terminate, dismiss or suspend an employee who fails to report for work at his place of employment because he is serving as a volunteer emergency responder during a state of emergency declared by the President of the United States or the Governor of this State.”

Under the New Jersey law, a volunteer emergency responder is defined as “an active member in good standing of a volunteer fire company, a volunteer member of a duly incorporated first aid, rescue or ambulance squad, or a member of any county or municipal volunteer Office of Emergency Management, provided the member’s official duties include responding to a fire or emergency call.”

In the last few days, President Trump has declared a state of emergency in Texas and Louisiana.  As such any New Jersey volunteer emergency responder who is traveling to aid with the Hurricane Harvey recovery efforts may be entitled to leave.

The leave does not have to be paid.  Employees may be able to use available or vacation days while out on leave, but cannot be forced to use such time.

The bad news for employers is that the law does not provide a limit on the amount of work that can be missed by the employee.  Many other jurisdictions besides New Jersey provide similar protections.  Employers with questions about first responder leave are encouraged to contact employment counsel.

For those wanting to help victims of Hurricane Harvey, Consumer Reports  and the New York Times have written some helpful guidance on avoiding scams, as well as listing some charities that are in the best position to help.

A couple of weeks ago we asked whether the federal government would pass a paid family leave law.  Although it is still unclear whether a federal law will pass, it is clear, for now, that there will not  be an expansion of paid family leave in New Jersey.

Governor Christie vetoed legislation that would have expanded paid family leave.  In his veto remarks, Governor Christie complained about the financial impact of the law.

The veto is conditional, meaning if the legislature approved a bill with Christie’s suggested changes, the law would pass.  However, it is clear that the legislature would not make Christies’ suggested changes as they have complained that his changes would gut the law.

Included in President Trump’s 2018 budget proposal is a request for funding a paid leave program.  The program would require $19 billion from the budget and would provide that employees were entitled to 6 weeks of paid leave from work.

So far, Republicans have not warmed to the idea.

Yesterday, at least 100 Democrats wrote a letter to President Trump also expressing concerns over the proposal.  However, the Democrats are concerned that the proposal does not go far enough. Democrats are pushing for consideration of other Democrat-sponsored bills that would provide for 12 weeks’ paid leave, matching the FMLA leave entitlement.

At this stage, it really is too early to tell whether some form of paid family leave will wind up in the final budget or if it will become a casualty of the horse-trading that goes on when trying to reach a consensus on the budget.

We will be keeping an eye on this one.

In November, voters in Arizona approved a ballot initiative that would require employers to provide paid sick leave.  The law goes into effect tomorrow.

Under the law, Arizona employers with less than 15 employees will have to provide up to 24 hours of paid sick leave.  Employers with 15 or more employees will have to provide up to 40 hours of paid sick leave.

In anticipation of the law, the Arizona Industrial Commission has issued FAQs, which can be found here.  The FAQs do make one significant change from the text of the law.  The FAQs do make clear that when counting employees for purposes of determining how much leave is to be offered, employers need only count employees working in Arizona.  Don’t get too excited.  This could change as the Commission itself notes that there might be further legislative guidance on this issue.

Employers not only need to make sure that they are offering leave, they will need to provide notices to the employees and post posters in both Spanish and English.

Arizona’s law, like many others, contains a no retaliation provision.  However, this provision should give employers pause.  Under the law, if any adverse action is taken against an employee within 90 days of them using sick leave, there is a presumption that adverse action was retaliatory.  Employers will then bear the burden of proving by clear and convincing evidence that the action was for a legitimate purpose.

Employers should tread carefully before disciplining any employee who has recently used sick leave.

Today’s post comes to us courtesy of Justin Schwam, an associate in the Labor and Employment Department in Roseland:

60987399 - four young friends drunk and hungover after house party sitting on the couch.

With the trend of local paid sick leave ordinances continuing its progressive sweep in cities across the country, a consistent concern for companies located in the vicinity is whether their operations fall within the local law’s reach.  Does it only apply if the company is physically located in the city?  Or does any employee activity within the city trigger the often onerous recordkeeping obligations?

A few weeks ago, a Minneapolis judge limited the reach of the City’s law slated to go into effect later this year.   Judge Dickstein issued a temporary injunction against the enforcement of its Ordinance against businesses not physically located in the City.  Although the City argued that its exclusive enforcement authority meant that it would not apply the Ordinance against businesses outside the City, the court recognized that such assurances, “however sincere,” did not alter the Ordinance’s plain language.

The court’s analysis of this issue is also notable for its dissection of the City’s argument that its action was a permissible exercise of its police powers to protect the health and welfare of residents.  The court found that the City’s attempt to regulate extraterritorial businesses whose employees “are unlikely (or may never) enter the city while sick” was not a narrowly tailored means of addressing “identifiable harms within the city limits,” such as a rule governing the inspection of extra-territorial cows whose milk was sold within the city.  Because a prime justification for these local ordinances is typically the need to protect residents from the spread of contagion, the court’s refusal to accept policymakers’ assumptions that ill workers would use the sick leave benefit to “protect against potential harm” is significant.

Although the injunction ultimately may be lifted, or the ordinance amended – it’s not scheduled to take effect until July 1, 2017 – employers not located in Minneapolis are breathing a sigh of relief.   For now, employees who occasionally travel to Minneapolis will not be entitled to accrue sick leave under the law.

As local action on this issue will no doubt continue to pick-up steam, since more state governments are looking at measures to prevent municipal action than are moving to enact state-wide measures, it will be interesting to see how cases like this one influence future legal challenges and how future paid sick leave laws are drafted.  We will keep an eye out and report back on any developments.