Client Updates on FFCRA, Paid Sick Leave, and Harassment Training

So much is happening right now . . . we felt it was a good time to provide an update on several developments we’ve been monitoring:

Changes to the Families First Coronavirus Response Act (FFCRA)

You already know about the FFCRA. Well, the law is a-changing again! Remember that federal judge who struck down several parts of the FFCRA? Well, in response the Department of Labor just clarified certain portions of the FFCRA. Here’s what you need to know:

· Employees are only entitled to FFCRA leave if there’s actually work available for them to perform. For example, if the office is closed then there’s no work from which to take leave.

· Employers can decide if employees are allowed to take intermittent leave. (Ed. Note: proceed with caution on this one . . . just trust us)

· The definition of “healthcare providers” was narrowed to include only employees who are “health providers” under the Family and Medical Leave Act (“FMLA”) or “who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care.” Why is this important? Because the FFCRA permits employers to exclude “healthcare providers” from being entitled to leave. This change narrows that exclusion, thus making more employees in the healthcare industry eligible for FFCRA leave.

· Employees must provide to their employers the required documentation supporting their need for FFCRA leave “as soon as practicable” but do not need to provide the paperwork prior to taking leave (unless the need for leave was foreseeable).

These changes become effective September 16, 2020.

(New) New York State Paid Sick Leave Law

Another year, another significant piece of legislation. Effective at the end of this month, the New York Labor Law is amended to require most Empire State employers to provide paid sick leave.

The amount of leave an employer is required to provide depends on their size:

· Four or fewer employees and net income of $1 million or less: 40 hours of unpaid sick leave per calendar year;

· Four or fewer employees and net income greater than $1 million: 40 hours of paid sick leave per calendar year;

· Five to 99 employees: 40 hours of paid sick leave per calendar year; and

· 100 or more employees: 56 hours of paid sick leave per calendar year.

The rules regarding accrual, increments, and carry-over should look familiar to employers that have employees in New York City. Those rules include:

· Leave must accrue at a rate of at least one hour per 30 hours worked;

· Unused sick leave will be carried over, subject to certain exceptions; and

· Robust anti-retaliation and anti-discrimination protections for employees.

This law becomes effective September 30, 2020 but employees may not use any newly accrued leave until January 1, 2021.

Sexual Harassment Prevention Training

New York Employers: The deadline for this mandatory training is October 9th. All employers in New York State are required to provide employees with sexual harassment prevention training. This training must:

· be interactive (yes, platforms like Zoom still count);

· include an explanation of sexual harassment consistent with guidance issued by state and local government;

· include examples of conduct that would constitute unlawful sexual harassment;

· include information on the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;

· include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and

· include information addressing conduct by supervisors and additional responsibilities for supervisors.

Each employee must receive training on an annual basis.

New Jersey Employers: A bill requiring sexual harassment prevention training for all employers was introduced earlier this year. While not (yet) law, we think there’s a good chance that the Garden State implements some form of mandatory training. Employers would be wise to consider providing training to their staff and updating their handbooks to reflect the heightened awareness of sexual harassment in the workplace.

If you have questions about these new updates, don’t hesitate to contact us. We’re here to help.

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