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April, 2019
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Dear Clients, Colleagues and Friends,
It is challenging to keep up with the changes to the legal landscape that are occurring on a daily basis. As always, we will do our best to keep you abreast of the ones that have caught our attention over the past several weeks. In this issue, we will address: the new change in NYS law regarding granting employees time off to vote; NYC proposed ban on pre-employment marijuana testing; a recent federal appellate court decision banning hostile work environments focused on an individual's disability; and a recent decision from NYS's highest court regarding payment of home health care workers. As always, feel free to contact us with any questions by emailing cbook@mb-llp.com
Wishing all of you a happy Passover, happy Easter and enjoyable Spring!
NYS Changes Law Regarding Voting
 Time Off for Employees

The amendment to New York Election Law Section 3-110 provides that all registered voters may request up to three hours of time off, regardless of their schedule, without loss of pay, to enable the employee to vote in any public election. The amendment will take effect immediately after Governor Cuomo signs the budget (which had not happened as of April 10, 2019) and will likely apply to requests for time off for the New York state primary on June 25, 2019.
Prior to this amendment, employees were eligible to request up to two hours of paid time off to vote if they did not have four or more consecutive hours off between: (i) the time when the polls opened and they began their shift; or (ii) the end of their shift and the closing of the polls. The new amendment removes the requirement that the employee not have sufficient time before or after work when the polls are open to vote, and allows employees up to three hours of paid time off. Employers may designate whether the time off will be taken at the beginning or end of the employee's shift.
To be entitled to voting time off, employees must be registered to vote and must provide at least two days' advance notice of the need for time off to vote. The law is silent on whether an employer can require proof of voting after the employee takes paid time off, or whether the employer may charge time off taken by an employee to vote against the employee's general paid time off bank provided by the employer's paid time off policies.
Employers are advised to update their employee handbooks to reflect this change.
NYC Bans Pre-Employment
Testing for Marijuana Use
The New York City Council passed legislation on April 9, 2019 which will prohibit employers from requiring a prospective employee to submit to drug testing for the presence of tetrahydrocannabinols (THC), the active ingredient in marijuana, as a condition of employment. The law, which is expected soon to be signed into effect by the mayor, will amend the New York City Human Rights Law and make it a discriminatory practice to require a job applicant undergo pre-employment marijuana testing. We expect that there will be exceptions. Stay tuned.

Second Circuit Rules ADA Prohibits
Hostile Work Environments
A recent decision by the U.S. Court of Appeals for the Second Circuit, Fox v. Costco Wholesale Corporation, No. 17-0936-cv (Mar. 6, 2019), has ruled that an employee can assert a hostile work environment claim under the federal Americans with Disabilities Act (ADA).
The plaintiff employee suffers from Tourette's Syndrome and Obsessive-Compulsive Disorder. Among other things, he complained that other Costco employees mocked him for his verbal and physical tics in plain view of his supervisors, who said nothing. The hostile work environment created by his co-workers because of his disability caused the plaintiff great stress, and eventually required him to take a medical leave.
In reaching its conclusion, the court reasoned that because the ADA borrowed language from Title VII of the Civil Rights Act of 1964, and the U.S. Supreme Court already held that Title VII provides for hostile work environment claims, "it follows that disabled Americans should be able to assert hostile work environment claims under the ADA, as can those protected by Title VII."
Employers will want to update their handbooks and policies prohibiting discrimination, retaliation, and harassment to reflect this change in the law. Proper implementation of such policies, including promptly investigating complaints and taking remedial action as appropriate, can serve as a defense to liability in relation to hostile work environment claims.
NY Court Of Appeals Reviews
24-Hour Shift Compensation
The New York Court of Appeals recently decided that employers of home health care attendants who regularly work 24-hour shifts at clients' homes do not have to pay those workers a minimum wage for each hour of their shift. Andryeyeva v. New York Health Care, 2019 NY Slip Op 02258 (Mar. 26, 2019). The Court upheld an interpretation of a NYS DOL wage regulation that allows employers to exclude payment from such workers for sleep and meal times if certain criteria are met.
Specifically, the 1972 Minimum Wage Order (12 NYCRR Part 142) as interpreted by DOL allows withholding for eight hours of scheduled sleep time provided the worker is able to get in five hours of actual sleep. Additionally, employers do not have to pay for three hours of meal breaks if the employee actually takes them. If those conditions are not met, the employer is required to pay the employee for each hour of the full 24-hour shift.
In sum, employers of home health care aides working 24-hours shifts must pay when the employee is interrupted during sleep and meal breaks for any time worked and must pay for the entire break when the employee does not receive the requisite hours of sleep. If the aide does not receive the minimum break time because the patient needs assistance, the aide must be paid for 24 hours of work time. This significant additional cost warrants employers' careful compliance with DOL mandated minimum sleep and meal times.




Moskowitz & Book, LLP  | cbook@mb-llp.com  | http://mb-llp.com/

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