New York City’s Earned Safe and Sick Time Act (ESSTA or Act) provides covered employees with the right to use safe and sick leave as it accrues for a delineated list of circumstances. On Aug. 11, 2022, the New York City Council introduced a proposal to amend the ESSTA’s definition of “employee.” Under this proposal, certain independent contractors would qualify as employees and receive benefit coverage under the Act. The proposal would require hiring entities to engage in detailed analyses of individuals providing services to determine wither they are independent contractors or employees.
With 2022 nearing its end, many states and counties look to pass new employment laws and regulations at the turn of the year. While this is not intended to be a complete update of New York employment law, this article details a few highlights in this area.
On June 24, 2022, in Dobbs v. Jackson Women’s Health Org., 2022 WL 2276808 (June 24, 2022), the U.S. Supreme Court overruled Roe v. Wade 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) and held that (i) the U.S. Constitution does not confer a right to abortion and (ii) the authority to regulate abortion is held by the states. The statute at issue in Dobbs was Mississippi’s Gestational Age Act, which banned abortion after 15 weeks except in a medical emergency or in the case of severe fetal abnormality. Employers across the nation must now determine how to evaluate and respond to the far-reaching implications of this decision.
In connection with Mental Health Awareness Month, the United States Department of Labor (USDOL) has sought to assist employers in better understanding how to comply with the Family Medical Leave Act (FMLA) as it relates to mental health conditions. Accordingly, on May 25, 2022, the USDOL issued new guidance (Guidance) and frequently asked questions (FAQs) on providing FMLA leave to employees to address their own mental health conditions or to care for a covered family member with a mental health condition.
On Nov. 1, 2021, Governor Kathy Hochul signed a bill into law amending the definition of family member for purposes of the New York Paid Family Leave Benefits Law (PFL) to include biological or adopted siblings, half-siblings and step-siblings. This amendment takes effect on Jan. 1, 2023. Currently, family members for purposes of PFL include a child, parent, grandparent, grandchild, spouse and domestic partner.
Our previous information memo discussed several issues that employers should be aware of when considering whether to provide an incentive to employees to encourage them to receive the COVID-19 vaccine. On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued updated guidance to employers on workplace COVID-19 vaccination policies, including guidance on employer-offered COVID-19 vaccine incentives.
Many employers are grappling with the decision of whether to provide an incentive (e.g., a cash payment, other form of financial incentive or increased time off) to employees to encourage them to receive the COVID-19 vaccine. Employers wishing to implement a COVID-19 vaccine incentive program should be aware that such a program will likely be considered a “wellness program” which implicates a myriad of legal issues, including issues under the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act (GINA), and Health Insurance Portability and Accountability Act (HIPAA).
The long-awaited stimulus relief bill has officially been enacted. On Dec. 21, 2020, Congress passed the Consolidated Appropriations Act, 2021 (Bill), several months after aid had lapsed for many individuals and businesses from the first stimulus bill passed early-on in the COVID-19 pandemic. Congress came together to push through a 5,593 page, $900 billion stimulus package intended to help those individuals and businesses who continue to struggle economically as a result of the ongoing pandemic. After expressing bipartisan criticism of its contents, President Trump finally signed the Bill on Dec. 27, 2020.
If you are a municipal employer in New York State struggling to find the answer to that question, you are not alone. In the absence of express language in your collective bargaining agreement, a definitive response is elusive. So elusive that the Second Circuit Court of Appeals has reached out to New York’s Court of Appeals for guidance. Whatever answer the Court of Appeals returns, if any, the value of a carefully negotiated and precisely drafted collective bargaining agreement cannot be overstated.
Administrators of qualified retirement plans have always had to deal with the problem of “missing participants” – that is, terminated vested participants for whom the administrator does not have a current mailing address or other contact information, and participants who refuse to respond to communications from the administrator. This problem frequently comes to light when a terminated participant nears retirement age or otherwise becomes entitled to receive a plan distribution, because at that time the administrator must contact the participant about distribution options, beneficiary designations, and other matters. And when a terminated participant approaches age 70½, the necessity of locating him or her becomes more urgent, because plan distributions generally must begin shortly after that age is reached.
Besides being an administrative problem, the inability to locate terminated participants can represent legal risks. The U.S. Department of Labor (DOL) has asserted that a plan’s inability to locate terminated participants can constitute a breach of duty on the part of the plan’s fiduciaries, in violation of ERISA. Lost or missing participants can also lead to plan disqualification risks; for example, if “required minimum distributions,” mandated under the Internal Revenue Code, cannot be made.
The "Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for the fiscal year 2018" a.k.a. the Tax Cuts and Jobs Act of 2017 (the "Tax Act") will, among other things, likely make negotiations in connection with sexual harassment or sexual abuse claims more difficult, and settlements for such claims more expensive for employers.
In response to disasters such as hurricanes and earthquakes, the general community comes together to assist those in need — donating our blood, time, money, and belongings. We respond similarly when one of our co-workers experiences an illness, death, accident, fire, or other severe financial hardship. Employers often ask us: “What can we do?”
Helping your employees and co-workers can be as easy as 1-2-3, once you crack the Code. The Internal Revenue Code, that is. If you know where to look, you can find some real win-win options.
Tax-Free Employer Payments: Employers may make direct payments (i.e., “qualified disaster relief payments”) that are tax-free to employees AND deductible by employers.
Employer-Sponsored Public Charities: Another more flexible (and perpetual) option is to form a public charity in as little as a single day. An emergency assistance fund backed up by an employer-sponsored public charity can boost workplace morale and enhance an employer’s familial culture. The employer and employees may make tax-deductible donations which are provided (directly and tax-free) to other employees/former employees affected by disasters and other hardships.
Leave-Based Donation Programs: Employers can adopt leave-based donation programs whereby employees donate leave time to be paid by the employers to a charity. The employees will not be taxed on the donated leave, nor will they be able to claim a charitable deduction on their individual tax returns. Employers may take a deduction for the employees’ contributions without regard to the normal limitations on corporate charitable donations.
In addition to the above, the IRS, DOL, and PBGC have granted multiple forms of relief to taxpayers impacted by the hurricanes and other disasters, and President Trump recently signed the “Disaster Tax Relief and Airport and Airway Extension Act of 2017,” which, among other things, provides emergency tax relief for individuals and employers.
Watch for an upcoming Bond Client Alert providing more detail on all of these relief programs.
We want to send our best wishes to the entire Bond family (all of our friends, colleagues, and clients) already affected by the recent storms and those currently in the path of Hurricane Nate. Our thoughts are with you and we are ready to help.
Author’s Note: Many thanks to first-year Bond associate Stephanie Fedorka for her assistance with this blog article. Her research time does not constitute a charitable donation to anyone other than the author.