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Dear Clients/Friends/Colleagues:
Happy Fall/ Almost Winter! The holiday season is almost upon us, as well as year-end planning. Of course, your legislators have been very busy with "gifts" for you in the form of new regulations, anti-sexual harassment training requirements, and forms to complete. We are sure there is plenty more in the works for 2019, especially in New Jersey. Below are several newsworthy developments of the past few months. Please be in touch with us regarding any of the below or any other employment law or workplace legal issue that you may have.
FYI, Chaim Book will be speaking on December 4 at the Business Fundamentals Bootcamp. The topic will be: "Common Pitfalls of Employee Interactions & How to Avoid Them." The event will be at the Holiday Inn in Hasbrouck Heights, NJ. There will be a lot of great networking opportunities. Please contact us if you would like to receive a 50% discount to attend. You can also go to https://www.supportingstrategies.com/bootcamp-buj18
for more information.
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NYC Employers Must Provide Workplace Lactation
Rooms
The NYC Council recently passed legislation which requires that employers with 15 or more employees provide a lactation room to any employee needing to express breast milk. The legislation also requires that these employers provide employees with written information on the room's availability. If the bill is signed by the mayor, which is expected, it will take effect 120 days after the date of signature.
The bill requires that employers provide a lactation room, other than a bathroom, that is private, sanitary, and includes an electrical outlet, a chair, a surface on which to place a breast pump and other personal items, and nearby access to running water. The room must be in reasonable proximity to the employee's work area. If an employer provides a room that is also used for other functions in addition to being used as a lactation room, the room must solely function as a lactation room at any time that the employee is using it for lactation purposes. Employers must also provide a refrigerator suitable for breast milk storage.
In addition to providing a lactation room, employers will need to develop a written policy regarding the lactation room, which must be distributed to all employees at the time of hire. The policy must state that employees have the right to request a lactation room and provide instructions as to how to make the request. Employers will be required to respond to requests for a lactation room within five business days. Additionally, the policy must provide a procedure to follow when two or more individuals need to use the lactation room at the same time.
Employers who have further questions about this new legislation or who require assistance creating a lactation room policy should contact Chaim Book at [email protected] or Brita Zacek at [email protected].
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Department of Labor Releases New FMLA Forms
The U.S. Department of Labor recently released new Family and Medical Leave Act notices and certification forms, which are valid until August 31, 2021. All employers with 50 or more employees are covered by the FMLA and thus required to offer up to twelve weeks of unpaid FMLA leave to employees who require leave for qualifying reasons.
The following new forms are now available for download on the DOL website:
Notice of Eligibility and Rights and Responsibilities: The Notice of Eligibility advises an employee if he or she is eligible for leave and is to be provided to any employee that applies for FMLA leave. Employers must provide the completed form to the employee within five business days, absent extenuating circumstances, after being told by an employee that he or she needs to take leave or after the employer otherwise learns of an employee's need to take leave. If an employer determines that the employee is not eligible to take leave, it must provide at least one reason why the employee does not meet the established eligibility requirements.
Designation Notice: The Designation Notice informs the employee whether his or her leave request is approved. Once an employer has sufficient information to determine whether an employee qualifies for leave, it has five business days, absent extenuating circumstances, to notify the employee. If an employer requires the substitution of paid leave in conjunction with the use of leave, the Designation Notice must inform the employee of the employer's policy. Also, if an employer wants a returning employee to provide a fitness-for-duty certification before returning to work (which is always recommended), a statement to that effect must be included on the Designation Notice, accompanied by a list of the essential functions of the employee's position or a job description. If the employee's request for leave is not designated as leave, the employer must notify the employee of any additional information that may be required in order to designate the time as leave.
Employee Rights Under the FMLA: This poster must be posted in a conspicuous location where it can be readily seen by all employees and applicants for employment. The General Notice or its contents, must also be distributed to each employee; this requirement may be satisfied by including a leave policy, which includes all required information, in an Employee Handbook.
Certification of Health Care Provider for Employee's Serious Health Condition: This form is for use when an employee requires leave for his or her own serious health condition.
Certification of Health Care Provider for Family Member's Serious Health Condition: This form is for use when an employee requires leave for a son, daughter, parent or spouse who has a serious health condition.
Certification for Qualifying Exigency for Military Family Leave: This form is for use when an employee requires leave for a qualifying exigency arising out of the fact that the employee's spouse, son, daughter or parent is a covered military member on active duty or has been notified of an impending call or order to active duty in support of a contingency operation
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Certification for Serious Injury or Illness of Current Servicemember for Military Family Leave: This form is for use when an employee requires leave to care for a covered Servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the covered Servicemember.
Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave: This form is for use when an employee requires leave to care for a covered Veteran with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the covered Veteran.
Employers with questions regarding these forms or their obligation to provide FMLA leave should contact Chaim Book at
[email protected] or Brita Zacek at
[email protected].
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Westchester County Enacts Paid Sick Leave Law
Following in the footsteps of New York City, Westchester County has enacted a paid sick leave law which will take effect on March 30, 2019. The law requires that employers provide up to 40 hours of sick leave per year to all employees that have worked in Westchester County for more than 80 hours in a calendar year. Sick leave must accrue at a rate of 1 hour for every 30 hours worked, or, in the alternative, employers can frontload sick leave by providing employees 5 days at the beginning of each calendar year. When the accrual method is used, employees must be allowed to carry over unused, accrued sick time to the following year, though employees' use of sick leave in a given year can be capped at 40 hours.
For employers with 5 or more employees working in Westchester County, the sick leave must be paid at the employee's normal rate of pay. Employers with less than 5 employees may provide unpaid sick leave.
Earned sick leave may be used for the following reasons:
- For an employee's mental or physical illness, injury or health condition; an employee's need for medical diagnosis, care or treatment of such illness, injury or health condition; or an employee's need for preventative care;
- Care of a family member with a mental or physical illness, injury or health condition; for the family member's need for medical diagnosis, care or treatment of such illness, injury or health condition; or for the family member's need for preventative care;
- Care of an employee or family member when it has been determined by public health authorities that the employee's or family member's presence in the community may jeopardize the health of others because of his or her exposure to a communicable disease; and/or
- Closure of the employee's place of business or a day care or elementary or secondary school attended by an employee's child where such closure is due to a public health emergency.
For purposes of the law, "family members" include an employee's child, spouse, domestic partner, parent, sibling, grandchild or grandparent; and the child or parent of an employee's spouse, domestic partner or household member.
Employers must provide both current employees and new hires with a copy of the ordinance along with "written notice of how the law applies to that employee" within 90 days of the effective date of the law (i.e., June 28, 2019) or at the beginning of employment, whichever is later, and must display a copy of the ordinance and a notice of rights poster in a conspicuous location accessible to employees. Employers are also required to maintain records reflecting both the hours worked and sick hours accrued and used by employees for a period of three years.
Unlike NYC's sick leave law, the Westchester County law provides employees with a private right of action for violations of the law. Employees may recover the greater of $250 or three times the wages that should have been paid for each instance of undercompensated sick time taken, and $500 for each instance where employees have been unlawfully denied requested sick time. Other available remedies include reinstatement and back pay, attorneys' fees, the costs of an administrative hearing, and other monetary and equitable relief.
The attorneys at M&B are available to assist with updating sick leave policies and employee handbooks in order to comply with the new law. Please contact Chaim Book at [email protected] or Brita Zacek [email protected] for more information.
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345 SEVENTH AVENUE, 21ST FLOOR; NEW YORK, NY 10001
O: (212) 221-7999 F: (212) 398-8835
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