New York, N.Y. (January 8, 2021) - 2020 was certainly a year for the books. While the international community experienced shut downs and standstills as the COVID-19 pandemic swept the globe, everyone had to adjust to a "new normal." Although many New York and New Jersey businesses closed their doors, and court operations went virtual starting in March, that did not stop new legal developments from paving the path to a new pandemic-centric landscape. Below is a recap of the major 2020 changes to employment law in New York and New Jersey.
New York was, of course, one of the most affected states at the onslaught of the pandemic, which led to swift executive and legislative action. Governor Andrew Cuomo expanded on federal COVID-related leave of absence laws by signing a state law that provided New York employees with leave and benefits while subject to a mandatory or precautionary quarantine or isolation, as follows:
- Employers with 10 or fewer employees are required to provide unpaid job-protected sick leave or a combination of unpaid leave and five days of paid leave until a quarantine or isolation ends, dependent upon the employer's net income.
- Employers with 11 to 99 employees must provide at least five days of paid leave, with unpaid leave to cover the remainder of the quarantine.
- Public employers and private employers with 100 or more employees are required to provide at least 14 days of paid leave during the quarantine or isolation.
After the above requirements are met, New York employees become eligible for Paid Family Leave and disability benefits. Importantly, the terms "disability" and "family leave" were also expanded to cover employees' inability to perform duties or their need to take leave as a result of government-issued quarantine or isolation. Finally, employers are obligated to return employees to their previously-held positions following the leave, and retaliation or discrimination based on taking COVID-related leave is deemed unlawful.
State Law Changes
The national shift in priorities ushered in lasting amendments to existing laws in New Jersey and New York. Unsurprisingly, these changes focus primarily on employee health and the availability of sick leave.
New York made a significant amendment to its state budget for 2021 to include a new permanent requirement for sick leave, separate from COVID-19 legislation, as follows:
- Employers with five to 99 employees must provide 40 hours of paid sick leave per year;
- Employers with 100 or more employees must provide up to 56 hours of paid sick leave per year;
- Employers with four or less employees and a net income totaling $1 million or more must provide 40 hours of paid sick leave per year;
- Employers with four or less employees but a net income below $1 million must provide 40 hours of unpaid sick leave per year.
The rate at which sick leave accrues for all of the above categories must total at least one hour of sick leave for 30 hours worked, and employers may frontload the full hour requirement at the beginning of the year if they prefer. Unused sick leave may be carried over, but employers are under no obligation to provide more hours than mandated or pay separated employees for unused sick leave time.
The rate of pay for sick leave for all above employer categories is the greater of the employee's regular rate of pay or the minimum wage. Covered employees can use sick leave due to a multitude of reasons ranging from illness, injury, diagnosis, treatment, preventative care, domestic violence, sexual offenses, and seeking aid or services from attorneys or law enforcement to remediate or prevent said violence or offenses.
New York City also revised its Earned Sick and Safe Time Act (ESSTA) to match the requirements of the state's Leave Law. Notably, the amendment eliminated the 120-day waiting period for newly hired employees' use of accrued leave, although employers are able to restrict usage until January 1, 2021. Reporting requirements under ESSTA have also been amended to require that each paycheck detail the amount of accrued sick leave and use during the pay period, as well as the total accrual balance. The amendments also expand the scope of prohibited retaliation and enforcement mechanisms for redressing violations.
In a major development for New Jersey, the state amended the NJ-WARN Act, a law that becomes applicable in certain cases of mass layoffs and plant closures. The key change imposes a requirement on employers in certain circumstances to provide each employee severance pay totaling one week for every full year of employment. Notably, there is no cap on the number of years worked to compute severance, which is potentially extremely burdensome on the employer.
Another notable amendment to the NJ-WARN Act is the 90-day advance notice requirement prior to mass layoffs or plant closures, increased from the previous 60-day notice requirement. The notice requirement will kick in whenever layoffs in a 30-day period lead to the termination of 50 or more employees. Failure to provide the requisite notice will also result in expanded severance pay requirements of four weeks of pay in addition to the now-mandatory severance pay just discussed. An exception exists for mass layoffs necessitated by the pandemic. These new requirements only apply to employers with 100 or more full-time employees, or 100 or more combined full and part-time employees who work a combined 4,000 or more hours each week. The addition of part-time workers for purposes of determining covered employers under the law is a significant change that employers must keep in mind going forward.
New Jersey also introduced legislation specifically aimed at making the current benefits and leave laws COVID-inclusive. Benefits are enhanced for employees who are unable to work due to COVID-related circumstances during the pandemic, under the Earned Sick and Safe Leave Law, Family Leave Act, and Temporary Disability Benefits Law. Additionally, the state expanded the New Jersey Earned Sick and Safe Leave Law to include employees' use of earned leave when they are unable to work due to work, school, or child care closures, as well as isolation or quarantine restrictions from actual or suspected infections, during a Governor-declared state of emergency.
The definition of a "serious health condition" rendering an employee eligible for family leave under The New Jersey Family Leave Act now includes "an illness caused by an epidemic of a communicable disease, a known or suspected exposure to a communicable disease, or efforts to prevent spread of a communicable disease, which requires in-home care or treatment of a family member of the employee." The prior requirements of advance notice and certification of leaves were also eliminated in light of this amendment.
The New Jersey Temporary Disability Benefits Law adopted the same expanded definition of "serious health condition" and "sickness" to mirror the above amendment. Additionally, the definition of "compensable disability" now includes leave taken to care for a family member "suffering from accident or sickness." The seven-day waiting period also no longer applies when an employee's condition falls within the new expanded definition and the employee seeks benefits relating to their own serious health condition.
Further, New Jersey implemented Executive Order 192, which sets forth mandatory requirements for employers with workforces that are physically present at a worksite or office. These requirements include social distancing, physical barriers where possible, face mask requirements for anyone entering the worksite, sanitation stations, daily health checks such as temperature screenings, immediate separation of employees appearing to have COVID symptoms, prompt notification to all employees of any known exposure to COVID, and cleaning and disinfecting worksites in the event of an employee COVID diagnosis.
Finally, New Jersey adopted the CROWN Act. The statute is designed to protect employees who have hairstyles such as braids, locks, and twists from discrimination on the basis of their hairstyles, which are commonly associated with African-Americans.
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