New York State Passes Law Requiring Employers to Provide Employees Paid Sick Leave

New York Governor Andrew Cuomo has signed the state’s FY 2021 Education, Labor, Housing and Family Assistance Budget Bill into law (Chapter 56, S.7506-B, A.9506-B). The budget, among other things, requires all employers to provide employees with paid sick leave. The amount of paid sick leave an employer is required to provide an employee varies however, based on the size of the business. The new obligation is separate and distinct from the Quarantine Leave Law enacted in response to COVID-19.

Employers with 100 employees or more must provide 56 hours of paid sick leave per calendar year.

Employers with fewer than 100 employees in any calendar year must provide up to 40 hours of paid sick leave per calendar year.

Employers with less than 5 employees and less than $1,000,000.00 in net income shown in the previous tax year, must provide 40 hours of sick leave, but that sick leave can be unpaid.

Employers may set a minimum increment of paid sick leave permitted to be used by an employee at a time but that minimum may not be less than a defined amount.

The law requires that unused sick leave be carried over to the next calendar year, but the employer may limit the amount of sick leave that may be used in a calendar year. Significantly, employers are not required to pay an employee for unused sick leave upon their separation of employment.

The law has a broad definition as it relates to coverage. It covers care and diagnosis for an employee or an employee’s family member, regardless of whether the health condition has been diagnosed or requires treatment at the time of the request. Moreover, the law has a broad definition of what constitutes a family member.

Upon oral or written request, employers must provide information regarding an employee’s accrued paid sick time.

An employer must maintain records regarding the amount of sick leave provided to employees.

The law prohibits employers from discriminating or retaliating against an employee for requesting and using sick leave.

This blog entry is not exhaustive and is not meant to serve as legal advise. It is important that should you have questions regarding the new paid sick leave law in New York State, you contact Gilbert Law Group today at (631) 630-0100.

New York’s Paid Family Leave Law Provides Paid Leave to Families

On July 20, 2017, the New York Workers Compensation Board adopted the final regulation for implementation of the New York Paid Family Leave Law (NYPFLL). This is significant because the federal counterpart, the Family and Medical Leave Act (FMLA), does not obligate an employer to provide paid leave. In order to qualify to take paid leave in New York, an employee must be employed by a covered employer at the time they apply for the PFL. Additionally, if the employee works at least 20 or more hours per week, they become eligible after 26 weeks of employment. Alternatively, if an employee works less than 20 hours per week, they become eligible after 175 days worked.

An employee will be permitted to use paid leave if they are a new parent; have a serious health condition; or is called to active military duty. A serious health condition includes illness, injury, impairment, or mental condition.

An employee can apply for paid leave and once effective, the length of the maximum available leave varies based on the year. Each January 1 from now until 2021, the percentage of payment required to be paid to an employee for paid family leave will increase based on what the employee receives weekly. This January the PFL requires an employee to be given 8 weeks of paid leave at 50% of the employee’s weekly wage or the state average weekly wage, whichever is less. By 2021, the paid leave rate will increase to 12 weeks paid at 67% of the employee’s weekly wage or the state average weekly wage, whichever is less.

For more information on how on how an employee can claim Paid Family Leave and how an employer can prepare for the new regulation, call Gilbert Law Group at 631-630-0100.

Submitted by: Alexander Gilbert

Second Circuit Lowers Bar for FMLA Retaliation Claims

Back on July 19, 2017, the United States Court of Appeals for the Second Circuit lowered the causation standard that an employee has to meet in order to bring a retaliation claim against an employer under the FMLA (Family and Medical Leave Act). The Second Circuit explained that FMLA retaliation claims should be analyzed through a “motivating factor” causation standard as opposed to a “but for” causation standard. With the usage of this standard, all an employee has to do in order to bring a viable claim for retaliation against an employer in the Second Circuit is to simply prove that their employer, in correlation with an adverse employment action, viewed an employee’s utilization of the FMLA, in a negative light. The Second Circuit now joins the Third Circuit in using this causation standard.

The Second Circuit expressed its intent to adopt this plaintiff-friendly causation standard going forward in the case, Woods v. START Treatment & Recovery Centers, Inc. This case involved plaintiff Cassandra Woods, who was employed as a substance abuse counselor for START, a nonprofit and one of the largest non-hospital health providers in New York state, from 2007 until she was fired in 2012. Starting in 2011, Woods found herself at the center of much criticism at work as she received multiple warnings regarding her poor performance and was placed on probation eventually because of it. Over the course of this time, Woods was dealing with numerous health problems including severe anemia. Woods alleges that she had requested time off under the FMLA to deal with these detrimental health conditions on multiple occasions over the course of her employment with START but was always denied this requested leave. Woods was eventually hospitalized for a week as a result of her condition in April of 2012; a period that START admitted was protected under the FMLA. Woods was terminated shortly after her return from the hospital due to what START claimed was because of her alleged incompetent work performance.

Going forward, it will be much less burdensome for employees within the Second Circuit, which consists of those in Connecticut, New York and Vermont, to succeed on FMLA retaliation claims. So long as a plaintiff is able to show that the usage of his or her FMLA rights was merely part of the reason their employer took an adverse employment action against them. Additionally, the adoption of this standard by the Second Circuit will also likely result in an uptick in the amount of FMLA retaliation cases that get past summary judgment and proceed to trial. Employers within the Second Circuit will now have to be more careful when terminating employees because although they may have legitimate business reasons for terminating an employee, they still may find themselves in legal trouble if it can be shown that they viewed an employee’s usage of FMLA provided leave as a motivating factor in making the decision to terminate them.

Should you have questions regarding FMLA and/or FMLA retaliation, call Gilbert Law Group today at (631) 630-0100.

Contributed by: Richard (RJ) Cherpak