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As employers are well aware by now, New York enacted statewide paid sick leave requirements for employers, which took effect on September 30, 2020. We provided an overview of requirements for the new law here. Under the law, New York employers must provide all employees with sick leave and grant employees the ability to use accrued sick time starting January 1, 2021. The amount of sick leave an employer must provide under the law varies depending on an employer’s size and net income.

Recently, New York State issued much anticipated guidance and in a seven page FAQ document regarding the State’s new paid sick leave law. That guidance can be found here.

Although the guidance doesn’t answer every single question employers will have, the FAQs provide clarification as to Definitions, Accruals, Permitted Uses, Who is Eligible, Leave Increments, Rate of Pay, Alternative Accrual System, and Collective Bargaining Agreement and Other Leave Laws, Employee Rights & Protections, and Miscellaneous Questions.

We have excerpted  below a few key FAQs for employers to consider as they continue to work through COVID-19 and employers consider necessary revisions to their leave policies:

If employers choose an accrual based method for calculating leave under the NYPSL, they should be aware that out of state telework may impact an employee’s entitlement. The FAQs suggest that employees are only eligible to accrue sick leave based on hours worked while physically within the state of New York:

DOES AN EMPLOYER HAVE TO PROVIDE SICK LEAVE TO EMPLOYEES WHO TELECOMMUTE OUTSIDE OF NEW YORK STATE?

Employees who telecommute are covered by the law only for the hours when they are physically working in New York State, even if the employer is physically located outside New York State.

With many employees are already working from home, it is also important to note that, under the new law employers cannot require employees to telecommute in lieu of taking sick leave:…
Continue Reading State Issues Guidance for NY Paid Sick Leave Law

In an August 13 decision the National Labor Relations Board upheld an administrative law judge’s decision denying William Beaumont Hospital’s motion for an in-person hearing for an unfair labor practice charge. The charge was brought by the Michigan Nurses Association  alleging “numerous Section 8(a)(3) and (1) violations during an organizing campaign.” The Board shot down the Hospital’s “list of sundry problems” which could potentially occur during a video hearing as speculative and premature, and found that in light of the Michigan Nurses Association’s claims of anti-union tactics the judge’s decision that the pandemic constituted “compelling circumstances” warranting a remote hearing was not an abuse of discretion. The decision can be found here.

Although the Board’s decision may usher in more frequent remote hearings in the future, it’s not all bad. The same day as the Board’s decision in William Beaumont Hospital, the NLRB’s Division of Advice published 5 new advisory memos addressing COVID-19 related questions posed by different Regional Offices. In each case, the Division applied established law and recommended dismissal. Although, each advisory memo was written in response to an individual unfair labor practice charge and the Division’s conclusions are binding only as to the parties involved in that particular case, they provide some insight as to how similar cases might be handled and make it clear  that COVID-19 pandemic or not – the same rules apply.

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Continue Reading NLRB Approves Video Hearing For Nurses Against Hospital’s Opposition – But It’s Not All Bad…

The IRS recently issued further guidance under the CARES Act expanding the categories of individuals eligible for coronavirus-related plan distributions and loans, and providing additional administrative guidance on relief offered under the Act.

Background

As described in our April 3, 2020 Advisory, the CARES Act:

  • eliminates the 10% early withdrawal penalty on up to $100,000 in coronavirus-related distributions for qualifying individuals;
  • allows qualifying individuals to include coronavirus-related distributions in income over three years;
  • allows qualifying individuals to repay coronavirus-related distributions to a retirement plan in one or more installments within three years;

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Continue Reading IRS Issues Guidance on CARES Act for Retirement Plans

JOIN US: TUESDAY, JULY 21, 2020 | 12:30PM EST

Four months ago, the Dow was close to 30,000, employment rates were at historic highs, the coronavirus was still “novel,” and millions had not yet taken to the streets in global protests against police brutality and racial inequality. The workplace we now return to exists in…

In response to the COVID-19 outbreak, Congress, the Department of Labor (“DOL”) and the Internal Revenue Service (“IRS”) have each offered temporary relief from certain legal requirements applicable to employee benefit plans. Some of this temporary relief impacts participants’ rights under ERISA-covered employee benefit plans.

This Advisory focuses on the impact of the temporary relief on ERISA participant notice requirements, and also briefly summarizes that temporary relief.
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Continue Reading COVID-19 Relief Triggers ERISA Participant Notice Requirements

On June 3, the Internal Revenue Service (“IRS”) issued Notice 2020-24 providing temporary relief from the physical presence requirement for participant elections that are required to be witnessed by a plan representative or a notary public, including spousal consents.  The relief covers the period from January 1, 2020 through December 31, 2020 (the “Relief Period”).  While specifically intended to facilitate the payment of coronavirus-related distributions and plan loans under the CARES Act, as described in our Advisory of April 3, 2020, Notice 2020-24 applies to any participant election that requires the signature of an individual to be witnessed in the physical presence of a plan representative or notary.
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Continue Reading IRS Issues Temporary Relief from Physical Presence Requirement for Spousal Consents Under Retirement Plans

On May 27, 2020, the Department of Labor published final regulations establishing a new electronic disclosure safe harbor for ERISA-covered retirement plan (but not health and welfare plan) documents. This new safe harbor does not replace the DOL electronic disclosure safe harbor issued in 2002 (the “2002 safe harbor”), but instead offers employers additional methods for electronic disclosure of plan documentation. Compared to the 2002 safe harbor, the new safe harbor is broader in scope with respect to how electronic disclosures may be made and to whom, but is subject to several administrative requirements and limitations.

We have summarized the new safe harbor rules below to help employers decide which electronic disclosure safe harbor may work best for them.
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Continue Reading DOL Establishes New Electronic Disclosure Safe Harbor for ERISA-Covered Retirement Plans

The Internal Revenue Service (“IRS”) recently issued guidance relaxing several cafeteria plan rules to help employees deal with unanticipated COVID-19 expenses. Employers that sponsor cafeteria plans will need to decide whether to amend their plans to adopt these optional rule changes. We have summarized the rule changes below, including some important employer considerations.

Note that the IRS also issued recent guidance clarifying the retroactive application of CARES Act relief for high deductible health plans and extending the period in which premium expenses may be reimbursed. These changes will be addressed in a separate post.

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Continue Reading IRS Issues Cafeteria Plan Relief, Providing Employers Significant Discretion

The uncertainties surrounding the COVID-19 pandemic have made it difficult for employers to predict the long-term impact of the pandemic on their businesses. In response, many employers are looking for ways to preserve cash reserves by reducing or deferring benefit and compensation costs, without taking the more drastic step of permanently reducing their workforces. We have summarized below some of the near term cash preservation measures that employers might consider with respect to their benefit and compensation arrangements.
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Continue Reading COVID-19: Employee Benefit Measures for Preserving Cash and Saving Jobs

In response to the increased media presence in hospitals, the Department of Health and Human Services (“HHS”) issued guidance this week reminding health care providers that the COVID-19 outbreak does not change HIPAA’s privacy rules with respect to giving the media access to treatment areas. The guidance reinforces and amplifies existing HHS guidance by providing examples of its application to the COVID-19 public health emergency.

A patient receiving treatment in a health care facility is typically surrounded by protected health information (“PHI”), which includes health information in any form or medium (e.g., oral communications, life function monitors, charts, etc.). HHS’s guidance provides several examples of PHI in treatment areas, including how the mere presence of a patient in the area of a health care facility dedicated to treating a specific disease, such as COVID-19, reveals the patient’s diagnosis. As such, members of the media entering a health care facility’s treatment areas immediately have access to PHI they can see, hear and record.

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Continue Reading HIPAA Compliance Failures Make for Bad Television