CDC Updated Guidance Regarding COVID-19 and Its Potential Impact on New York State COVID-19 Paid Leave

March 6, 2024

By Adam P. Mastroleo

On March 1, 2024, the Centers for Disease Control and Prevention (CDC) issued updated guidance related to COVID-19 prevention and treatment. Prior to March 1, 2024, the CDC recommended that individuals who test positive for COVID-19 should isolate for a minimum of five days following a positive test and also follow a period of post-isolation precautions.

The CDC’s new Respiratory Virus Guidance

The CDC’s new Respiratory Virus Guidance includes several changes to its prior COVID-19 specific guidance. Initially, the new guidance applies to individuals who contract respiratory illnesses including COVID-19, flu and RSV, and no longer focuses on COVID-19 alone. The guidance explains that this change was made to address the most common respiratory viruses that cause significant amounts of disease, especially in the fall and winters seasons.

Next, the new guidance eliminates the five day isolation requirement, and instead recommends that individuals with these respiratory illnesses stay home and away from others until at least 24 hours after both their symptoms are getting better overall and they have not had a fever without the use of fever-reducing medication. According to FAQs provided by the CDC, “improving symptoms” means that a person is starting to feel better, and the body is returning to normal after an infection. The guidance also encourages added precautions over the next five days after time at home is over.

Finally, the guidance states that it is intended to apply in general community settings but not in healthcare settings. The CDC offers separate and specific guidance for COVID-19 in healthcare settings, which can be found here. The CDC also states that it has been working with education partners to develop infection prevention and control guidance for schools, and that this guidance should be released prior to the 2024-2025 school year.

NYS COVID-19 Leave Statute

Employers across New York state are likely wondering what impact, if any, the change in CDC guidance has on New York’s COVID-19 Paid Leave statute.

By way of review, New York’s COVID-19 Paid Leave law states that employers are required to provide employees paid leave if they are subject to a mandatory or precautionary order of isolation or quarantine issued by the New York State Department of Health (NYSDOH) (or any governmental entity similarly authorized). The length of leave depends on the employer’s size and income.

As reported on our blog here, as of Sept. 14, 2022, the NYSDOH issued updated COVID-19 quarantine and isolation guidance stating that it would follow the CDC guidelines on quarantine and isolation. With respect to obtaining an order of isolation or quarantine, NYSDOH guidance currently states, “The New York State Department of Health is following the Centers for Disease Control and Prevention’s (CDC) isolation and precautions for people with COVID-19 guidance, which provides information to those who tested positive. Currently, only orders of isolation are required.”

Effect of the CDC Guidance on Employers’ Obligation to Provide NYS COVID-19 Leave

With the CDC’s elimination of the five day isolation requirement, New York employers are faced with the question of whether they must continue offering COVID-19 Paid Leave. Arguably, without a specific CDC isolation requirement, COVID-19 paid leave will no longer be required. However, the new CDC guidance still recommends that individuals who have respiratory illness, including COVID-19, stay home and away from others until at least 24 hours after both their symptoms are getting better overall and they have not had a fever. It is not clear if New York state will continue to interpret this as an isolation requirement that would entitle employees to COVID-19 Paid Leave. As such, whether New York employers must continue to provide COVID-19 Paid leave is unclear.

It is also worth noting that Gov. Hochul’s 2025 Executive Budget Proposal includes proposed legislation that would end the State’s COVID-19 Paid Sick Leave Law as of July 31, 2024. To date, that legislation has not been voted on or passed, but it may be adopted in the near future.

Bond will continue to monitor developments related to COVID-19 Paid Leave and will publish updated guidance and information as it becomes available. Employers with questions about COVID-19 Paid Leave, or any of the information contained in this memo, can contact Adam Mastroleo, any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are in regular contact.

New York City’s Earned Safe and Sick Time Act Amendment: Private Right of Action

February 6, 2024

By Lance D. Willoughby-Hudson

On Jan. 20, 2024, The New York City Council amended the City’s Earned Safe and Sick Time Act (ESSTA), to create a private right of action for employees claiming violations of ESSTA. The new law amends Section 20-924 of the New York City Administrative Code and allows employees to commence a civil action alleging a violation of ESSTA within two years of the date the employee knew or should have known of the alleged violation. The new law becomes effective March 20, 2024.

Currently, the sole redress for employees alleging violations of ESSTA is to submit an administrative complaint to the New York City Department of Consumer and Worker Protection (DCWP). The new amendment will allow employees to file both an administrative complaint with the DCWP and a civil action in a court of competent jurisdiction for the same alleged ESSTA violation. Employees are not required to file an administrative complaint with the DCWP prior to commencing an action in court for alleged ESSTA violations.

If an employee files both a civil suit and a DCWP complaint against the employer for the same alleged ESSTA violation, the DCWP will stay its investigation until it receives notice that the civil suit has been withdrawn or dismissed without prejudice. Once DCWP receives notice of a final judgment or settlement of the civil action, DCWP may dismiss the complaint unless it determines that the complaint alleges a violation that was not resolved by such judgment or settlement. The employee must notify DCWP within 30 days after the time for any appeal has lapsed that such complaint is withdrawn, dismissed without prejudice, or resolved by final judgment or settlement.

Employees who prove a violation of ESSTA may recover:

  • Three times the wages that should have been paid pursuant to ESSTA or $250, whichever is greater, for every instance where an employee is not compensated properly by the employer for safe and sick time taken.
  • $500 for every instance where an employee requested safe and sick time that was (a) wrongfully denied by the employer and not taken by the employee; (b) wrongfully conditioned upon a requirement that the employee search or find a replacement worker prior to approval; or (c) wrongfully subjected to a requirement that the employee work additional hours to make up for the original hours for which the employee was scheduled, without the mutual consent of the employer and employee.
  • Full compensation for wages and benefits lost, plus $500 and equitable relief as deemed appropriate, for every instance of retaliation and interference.
  • $2,500, full compensation, including wages and benefits lost; and equitable relief, including reinstatement, as deemed appropriate for each instance of unlawful discharge from employment.
  • $500 for each employee covered by a policy that does not provide or allow for the use of safe and sick time pursuant to ESSTA.

In addition, the amendment permits an employee to seek injunctive relief and declaratory relief, attorney’s fees and costs, and any other relief that the court deems appropriate.

The amendment also expands ESSTA’s civil penalty provisions for entities found to be in violation of provisions regarding the accrual and use of sick or safe time or retaliation, on a per employee basis, of up to $500 to be paid to the city for the first violation. Subsequent violations that occur within two (2) years of any previous violation, entities will be liable of up to $750, not to exceed $1,000 for each succeeding violation.

If you have any questions about the information presented in this news alert, please contact Lance Willoughby-Hudson, any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are regularly in contact.

New Year, New OSHA Reporting Rule

January 24, 2024

By Michael D. Billok and Natalie C. Vogel

A new Occupational Safety and Health Association (OSHA) rule, “Improve Tracking of Workplace Injuries and Illnesses,” recently took effect on Jan. 1, 2024. This rule requires certain high-hazard employers with 100 or more employees to electronically submit OSHA Forms 300 and 301 by March 2 of each year—starting this year. Below is a list of general questions and answers relating to the new rule.

Read More >> New Year, New OSHA Reporting Rule

Second Department Weighs in on Employees Fully Paid But Who Seek Liquidated Damages for Not Being Paid Weekly: You Can’t Get Something for Nothing

January 19, 2024

By Michael D. Billok, Rebecca J. LaPoint, and Assitan Diakite*

On Jan. 17, 2024, the New York State Appellate Division, Second Department decided a pivotal case for employers after years of uncertainty. In Grant v. Global Aircraft Dispatch, Inc., the Second Department decided against following Vega v. CM & Associates Construction Management, LLC, a First Department decision that carried steep consequences for employers in New York for violations of New York Labor Law Section 191 (Section 191).

Read More >> Second Department Weighs in on Employees Fully Paid But Who Seek Liquidated Damages for Not Being Paid Weekly: You Can’t Get Something for Nothing

Eyes on 2024: Will the SEC Continue Its Aggressive Enforcement of Whistleblower Laws in 2024?

January 17, 2024

By Colin M. Leonard and Samuel M. Brewster

The Securities and Exchange Commission (the SEC or Commission) made clear in 2023 that it intends to aggressively enforce its whistleblower protection laws, namely Rule 21F-17, which prohibits employers from taking any action that impedes an individual from communicating potential securities violations to the Commission.

Read More >> Eyes on 2024: Will the SEC Continue Its Aggressive Enforcement of Whistleblower Laws in 2024?

U.S. Department of Labor Announces Final “Independent Contractor” Rule

January 11, 2024

By Adam P. Mastroleo and Samuel M. Brewster

As we previously reported here, on Oct. 11, 2022, the U.S. Department of Labor (DOL) issued a Notice of Proposed Rulemaking that would revise the analysis for determining independent contractor status under the Fair Labor Standards Act (FLSA or Act).  On Jan. 9, 2024, the DOL announced its final rule.

Read More >> U.S. Department of Labor Announces Final “Independent Contractor” Rule

Update: The NYSDOL’s Proposed Regulations Increasing the Exempt Salary Levels Have Been Adopted as Final Regulations

December 27, 2023

By Subhash Viswanathan

On Dec. 27, 2023, the New York State Department of Labor (NYSDOL) published a Notice of Adoption of its proposed regulations in the State Register, which means the minimum weekly salary to qualify for the executive and administrative exemptions will officially increase effective Jan. 1, 2024. The NYSDOL did not make any changes to its proposed regulations, so the following increases will occur:

Read More >> Update: The NYSDOL’s Proposed Regulations Increasing the Exempt Salary Levels Have Been Adopted as Final Regulations

A Ban No More? Gov. Hochul Vetoes Noncompete Bill

December 26, 2023

By Kevin G. Cope and Bradley A. Hoppe

On Dec. 23, 2023, Gov. Kathy Hochul vetoed Senate Bill S3100, blocking the Legislature’s attempt to ban noncompete agreements across the state. The proposed legislation sought to add a new section to the New York Labor Law banning essentially all noncompete agreements throughout New York. The proposed legislation seemingly had no exceptions, including the almost uniformly accepted exception for situations involving the sale of a business. The sweeping language of the proposed legislation also raised concerns that other types of agreements, including broad nonsolicitation agreements and nondisclosure agreements, could be banned as well. These concerns, among others, drew harsh criticism from the business lobby and employers throughout the state.

Senate Bill S3100 passed the New York State Senate on June 7, 2023, and passed the New York State Assembly on June 20, 2023. However, the proposed legislation was not delivered to the governor’s office until Dec. 12, 2023. During this delay, lobbyists pushed hard for the governor to either veto the proposed legislation or amend it. Following delivery, the governor’s office sought to accomplish the latter, attempting to negotiate a salary threshold that would allow employers to enter into noncompete agreements with employees making over a set yearly income. However, Gov. Hochul and the Legislature could not agree on an acceptable salary threshold, resulting in the governor vetoing the proposed legislation on the last day of the legislative session.

Noncompete agreements remain permissible in New York State, so long as they are reasonable in scope and no broader than necessary to protect a legitimate interest recognized by law (e.g., protection of confidential and/or trade secret information and customer relationships and goodwill). The Legislature will need to go back to the drawing board should it wish to ban noncompete agreements in the new legislative session and will likely need to narrow the scope of the ban should it expect Gov. Hochul to sign it. Bond will be closely monitoring this situation and will provide updates on any proposed noncompete bans in the new year, including with respect to the Federal Trade Commission’s proposed rule seeking to ban certain noncompetes nationwide.

For any questions about this issue, please feel free to contact Bradley A. Hoppe, Kevin G. Cope, any attorney in Bond’s litigation or labor and employment practices or the attorney at the firm with whom you are regularly in contact.

Reminder: The New York Minimum Wage Will Increase on Jan. 1, 2024

December 21, 2023

By Subhash Viswanathan

Effective on Jan. 1, 2024, the minimum hourly wage in New York will increase from $15 to $16 in downstate New York (New York City and Nassau, Suffolk and Westchester counties), and from $14.20 to $15 in upstate New York. In all regions of New York, the minimum wage will increase by $0.50 on Jan. 1, 2025, and by another $0.50 on Jan. 1, 2026.

Read More >> Reminder: The New York Minimum Wage Will Increase on Jan. 1, 2024

New York Further Restricts Employers’ Use of Non-Disclosure Provisions in Certain Settlement Agreements

December 11, 2023

By Adam P. Mastroleo and Hannah K. Redmond

Effective Nov. 17, 2023, New York General Obligations Law 5-336 was amended to further restrict employers’ use of non-disclosure or confidentiality provisions in settlement agreements when the factual foundation involves discrimination, harassment or retaliation. Since its enactment, the law has broadly prohibited non-disclosure provisions in agreements to settle discrimination claims “unless the condition of confidentiality is the complainant’s preference.”[1]

Read More >> New York Further Restricts Employers’ Use of Non-Disclosure Provisions in Certain Settlement Agreements

New York State’s Clean Slate Act: Highlights for Private Employers Including Healthcare and Human Services Employers

November 30, 2023

By Natalie C. Vogel and Roger Bearden

On Nov. 16, 2023, New York State Gov. Kathy Hochul signed legislation, also known as the Clean Slate Act, to automatically seal from public access criminal records for most individuals convicted of a crime.

The Act takes effect in one year, on Nov. 16, 2024, and its key intent is to increase employment opportunities for individuals with criminal histories who have no recent criminal convictions. The law amends New York’s criminal procedure law, the executive law, the correction law, the judiciary law and the civil rights law with respect to the automatic sealing of select convictions. New York follows several other states, such as California, Connecticut, Colorado, Pennsylvania, Oklahoma and Utah, who have also enacted similar laws.

To be eligible for automatic sealing of their records, individuals must complete their sentences (including probation or parole time) and do not reoffend within a stipulated period of time. This statutory period ranges from three years for misdemeanors to eight years for eligible felonies. The clock restarts if parole or probation is revoked or if there is a new conviction. All records of sex crimes, and Class A felonies (such as first or second-degree murder, first degree kidnapping), except those related to drug possession, are ineligible for sealing.

The law provides for several exceptions where sealed records could still be accessed and used for law enforcement, in criminal proceedings under certain circumstances, and other necessary purposes such as determining suitability for various licenses, and for employment and other activities where federal or state law requires or authorizes a criminal background check to be performed prior to granting licenses to or employing individuals in certain jobs.

Busting Myths

Myth: The law will erase all criminal records.
Fact Check: The law automatically seals certain criminal records but does not expunge them. Notably, the Clean Slate Act would only seal convictions under New York's penal law. The Act would not seal criminal convictions under federal law or the criminal law of any state other than New York. Sealing is not automatic when the convicted individual has a criminal charge pending or is on probation or under parole supervision when the statutory time period for automatic sealing elapses.

Myth: Law enforcement will not have access to criminal records.
Fact Check:
Records automatically sealed under this Act could still be accessed and used by law enforcement for permissible purposes including to assess the employment of law enforcement officers, or when conducting investigations.

Myth: Background checks for vulnerable populations, such as children, the disabled and the elderly, are now compromised because employers can hire individuals with criminal records.
Fact Check:
Entities, including those that work with children, the elderly or vulnerable adults, that are required or authorized by law to conduct a fingerprint-based background check, are not impacted by the Clean Slate Act. Under the Act, such background checks are considered relevant and necessary prior to the employment of individuals working with these vulnerable populations and will include criminal records which have been sealed under this Act. The Act will also not seal the records of individuals who are required to register as a sex offender.

Myth: Gun licenses will be issued without a proper background check.
Fact Check:
The law does not apply when licensing officers are processing a firearm license application. In this instance, the criminal records will not be sealed.

Myth: Individuals who have a criminal record may get preferential treatment for a job over an individual with no criminal record.
Fact Check:
New York state law prohibits discrimination against an individual because of their criminal conviction status. The Clean Slate Act does not impact this protected status. This means that New York employers cannot make employment decisions such as terminating a current employee or refusing to hire an applicant because of their pre-employment criminal conviction record. Article 23-A of the New York State Correction Law provides an exception to this rule, where an employer may still deny employment based on a criminal conviction record if the employer can establish a direct relationship between one or more of the previous criminal offenses and the specific employment sought; or where there is an unreasonable risk to the property or to the safety or welfare of specific individuals or the general public. Employers must consider several factors when making the above determination. New York City employers must also consider the intersection of the Fair Chance Act, which prescribes additional requirements for inquiring about or making decisions based on an individual’s criminal record. Once the Clean Slate Act is in effect, employers should be aware of their additional obligations under New York state law. For example, employers should not consider sealed criminal records in employment decisions. Further, employers that receive unsealed criminal records in response to a request for criminal conviction history should provide the employee or applicant with a copy of the criminal records received, a copy of Article-23 of the New York State Correction Law and notice to the employee or applicant of their right to correct any incorrect information pursuant to the regulations and procedures established by the Division of Criminal Justice Services. Legal counsel is recommended when considering criminal conviction history in employment decisions.

Myth: Sealed conviction records can later be used against an employer as evidence of employer negligence.
Fact Check:
The Clean Slate Act provides that a conviction record that was sealed pursuant to the Act and was not provided to an employer upon request for conviction record history cannot be introduced as evidence of negligence against the employer.

Considerations for Healthcare and Human Services Employers

For healthcare and human services employers, the Clean Slate Act broadly preserves access to criminal records where federal and state statutes have previously required such employers to screen potential employees in the interest of protecting patients or service recipient safety. Depending on their specific regulatory requirements, employers may be required to perform various background checks such as a Criminal History Record Check, a Staff Exclusion List (SEL) clearance through the New York State Justice Center, and the Statewide Central Register (SCR) database check through the New York State Office of Children and Family Services. As part of these checks, employers will be able to access permissible criminal records, including records that were automatically sealed under the Clean Slate Act.

As detailed above, the existing provisions of Corrections Law Article 23-A, continues to apply to any employer using such records in its employment decisions, including the requirement that there be a nexus between the prior criminal conduct and the reason an employer chooses not to employ a particular person.

Next Steps

Employers should review and update policies specifically related to hiring, background screening, use of conviction records and nondiscrimination policies. Once the law is effective, it is recommended that employers consult with legal counsel prior to taking an employment action in New York State based upon an individual's criminal history.

If you have any questions about the information presented in this information memo, please contact Natalie Vogel, Roger Bearden, any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are regularly in contact.