May 19, 2022

Volume XII, Number 139

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New York Rings in 2022 with Employment Law Updates

The city (and state) that never sleeps kept busy last year, enacting various laws that affect New York State and City employers in 2022. Below are some of the more recent enactments that employers should pay particular attention to now to ensure timely compliance with the laws’ mandates.

State Law Updates

Minimum Wage and Exempt Salary Threshold Increases

Effective December 31, 2021, the statewide general minimum wage increased to $13.20 per hour, and the minimum hourly wage in Nassau, Suffolk, and Westchester counties rose to $15.00, matching the rate that has been applicable to all New York City employers since 2019. The corresponding minimum salary threshold for exempt employees also increased outside of New York City. In Nassau, Suffolk, and Westchester counties, exempt employees must earn at least $1,125/week ($58,500/year), and in the remainder of the state, exempt employees must earn at least $990/week ($51,480/year). New York State requires employers to post minimum wage information and publishes industry-specific posters for use in compliance with this obligation.

COVID-19 Vaccination Leave Continues in 2022

Remaining in effect for the duration of 2022 is a measure enacted in March 2021 requiring New York employers to provide employees up to four hours of paid leave per COVID-19 vaccine injection, including booster shots.

State Sick Leave Rules Adopted

As clarified by recently adopted rules, New York Labor Law § 196-b allows employees to use sick leave for mental or physical illness, injury, or health condition, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time of the request for leave. This includes recovering from the side effects of a COVID-19 vaccination. The amount of leave depends on employer size and income as described below. Importantly, the comments to the adopted rules state that employers must count the number of employees nationwide, and not just those in New York State when determining their size:

  • Employers with four or fewer employees and a net income of $1 million or less: 40 hours of unpaid sick leave per calendar year

  • Employers with four or fewer employees and a net income of greater than $1 million: 40 hours of paid sick leave per calendar year

  • Employers with five to 99 employees: 40 hours of paid sick leave

  • Employers with 100 or more employees: 56 hours of paid sick leave per calendar year

New York Paid Family Leave Amendments

Effective January 1, 2022, the New York State Workers’ Compensation Board adopted amendments to the regulations for the New York Paid Family Leave Benefits Law clarifying that when Paid Family Leave (PFL) is taken intermittently, the maximum number of intermittent leave days an employee may take is based on the average number of days the employee works per week. The regulations initially capped intermittent PFL at 60 days. This 60-day cap has been removed, allowing for additional days of intermittent PFL for employees who work an average of more than five days per week.

New York State also amended the PFL law to expand the definition of “family member” to include siblings, effective January 1, 2023.

For 2022, the new maximum weekly benefit for PFL is $1,068.36. The maximum annual contribution for 2022 is $423.71.

New York HERO Act Obligations Extended

The New York HERO Act (“HERO Act”), enacted in May 2021 and amended in June, has two key requirements for employers. Section 1 of the HERO Act requires that employers create and maintain infectious disease exposure plans (“safety plans”). This requirement has recently been extended until at least January 15, 2022, because the New York State Health Commissioner renewed the designation of COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to public health.

Section 2 of the HERO Act requires employers in the State with 10 or more employees to allow employees to form a “workplace safety committee” in order to review workplace policies relating to occupational health and safety. Details regarding the requirements under Section 2 were released on December 22, 2021, in the form of a proposed rule, which will not take effect until after the rulemaking process, including a public hearing scheduled for February 9, 2022, is completed.

Statewide Mask Mandate for Public Spaces

In December 2021, Governor Kathy Hochul issued a statewide order requiring masks to be worn in most indoor spaces, including private office facilities, unless all present are fully vaccinated. That order remains in effect until at least February 1, 2022.

Whistleblower Protections for Employees Expanded

Taking effect on January 26, 2022legislation signed by Governor Hochul will increase coverage for workers who allege they have been retaliated against for reporting suspected wrongdoing. The legislation broadens the scope of private-sector whistleblower protections previously limited to claims of health care fraud and the reporting of health and safety concerns. The amended law requires employers to post a notice regarding employees’ rights with respect to whistleblowing under Sections 740 and 741 of the New York Labor Law, but, as of this Insight’s publication date, the New York State Department of Labor has not yet updated its webpage regarding posting requirements to reflect this change.

Electronic Monitoring in the Workplace

Effective May 7, 2022, New York State employers will be required to provide notice to an employee upon hire where the employer “monitors or otherwise intercepts” telephone calls, emails, or internet usage or access using “any electronic device or system.” The notice must be in writing or sent electronically, and employees must acknowledge receipt in writing or electronically. For current employees, employers should also post an electronic monitoring notice in a “conspicuous place,” readily available for viewing by employees subject to electronic monitoring.

New York City Updates

Paid COVID-19 Child Vaccine Leave

Effective December 24, 2021, and retroactive to November 2, 2021, New York City enacted legislation that provides an employee with up to four hours of paid leave for the COVID-19 vaccination of the employee’s child, or to provide care for the child due to the vaccine’s side effects. An employee is entitled to four hours per COVID-19 vaccine injection, per child.

Vaccine Mandate for Private Employers

Effective December 27, 2021, New York City employers must exclude unvaccinated individuals from workplaces in New York City. By the effective date, all workers who enter the employer’s office/facility must either (1) submit proof of at least one dose of a vaccine (and a second within 45 days) or (2) request a reasonable accommodation based on a disability or sincerely held religious belief.

Minimum Wage and Exempt Salary Threshold

The New York City minimum wage remains $15.00 per hour, a rate that went into effect for all city employers on December 31, 2019. The exempt employee salary threshold remains at $1,125/week ($58,500/year).

Salary Listings in Job Positions

On December 15, 2021, the New York City Council passed legislation that will require most employers advertising job openings for positions performed in New York City to include in the posting the minimum and maximum salaries offered for the position. The bill was not signed by outgoing Mayor Bill de Blasio. Accordingly, Mayor Eric Adams has until January 14, 2021, to either veto or sign it, in which case it would take effect 120 days later. The mayor may also leave the measure unsigned, in which case, pursuant to the New York City Charter, it would take effect on May 15, 2022.   

What New York Employers Should Do Now

Employers across the state face a wide range of changes in laws that affect numerous policies and procedures throughout the employment context. To ensure compliance for 2022, employers with a New York State or City workforce should do the following:

  • Review and revise employee handbooks to ensure that they are up to date.

  • Review and revise policies and procedures to ensure compliance with various sick leave laws, including COVID-19-specific leave and vaccination laws, and vaccine and/or mask mandates that are likely to be extended as the most recent surge of coronavirus cases.

  • Ensure compliance with minimum wage laws in accordance with the changes reflected across the state.

  • Begin planning to ensure timely compliance with pending laws that are not yet effective.

©2022 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XII, Number 9
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About this Author

Susan Gross Sholinsky, Labor Employment Attorney, Epstein Becker Green Law Firm
Member of the Firm

SUSAN GROSS SHOLINSKY is a Member of the Firm in the Labor and Employment practice, in the New York office of Epstein Becker Green. She counsels clients on a variety of matters, in a practical and straightforward manner, with an eye toward reducing the possibility of employment-related claims. In 2013, Ms. Sholinsky was named to theNew York Metro Rising Stars list in the area of Employment & Labor.

212-351-4789
Nancy Gunzenhauser Popper Labor Employment Attorney Epstein Becker Law Firm
Member of the Firm

NANCY GUNZENHAUSER POPPER is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green.

Ms. Popper:

  • Counsels clients on compliance with EEO laws, the Americans with Disabilities Act, the Family and Medical Leave Act, worker classification issues, and other federal, state, and local statutes governing the workplace

  • Advises employers in all facets of the employment relationship, from pre-employment considerations and hiring to terminations and post-employment...

212-351-3758
Associate

Nicole Zolla is an employment law counselor with a litigator’s perspective and experience. She represents employers in all stages of employment litigation, from responding to pre-litigation demands to defending claims in federal and state courts and before city, state, and federal government agencies. Clients ranging from startup companies to international corporations have relied on Nicole to help defend them against claims of accessibility violations, discrimination, hostile work environment, and retaliation. As the workforce continues to change with new legislation and guidelines,...

212-351-4551
Law Clerk - Admission Pending

Kamil Gajda is a Law Clerk – Admission Pending – in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green.

212-351-4524
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