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Pregnant Workers Fairness Act UPDATE

The EEOC has issued final rules clarifying how the Pregnant Workers Fairness Act (“PWFA”) is implemented. Those rules go into effect on June 18, 2024. These regulations clarify the availability of accommodations for limitations arising out of pregnancy, childbirth, and associated conditions.  

Employers don’t have to grant every accommodation request, just those accommodations that are “reasonable.” Without getting into a long discussion of how “reasonableness” is determined by legal decisionmakers, suffice it to say that accommodation requests often get watered down or negotiated out of existence.  These guidelines help set a baseline.

Predictable Assessments: The new rules are exciting because they propose four accommodations that are presumed reasonable—meaning that, if the employer wants to deny them, the employer has to prove that they aren’t reasonable. Those accommodations are: 1) keeping water nearby and breaks for drinking (for example, having a water bottle); 2) additional restroom breaks; 3) allowing standing, sitting, and alternating positions; and 4) allowing additional eating/drinking breaks. These accommodations are called “predictable assessments.”  

 

Limits on seeking additional documentation: Employers should not be seeking additional documentation in the following circumstances:  1) The need to adjust the workplace is obvious (for example, needing a larger uniform); 2) The employee has already provided sufficient information; 3) The employee is requesting one of the predictable assessments; 4) The employee requests time to pump or nurse; or 5) Non-pregnant or nursing employees would not be required to provide documentation for the same accommodation. 

 

New York Workers: Meanwhile, New York Pregnancy protections are gearing up. On June 19, 2024, New York employees will be entitled to a paid[1] 30-minute lactation break “each time such employee has reasonable need to express breast milk for up to three years following child birth.” While some employers are already wringing their hands about how often the need to pump might be “reasonable,” there is similar language in the FLSA (“a reasonable break time…each time such employee has need to express milk…”) 29 U.S.C. §218d (a)(1). Additionally, under New York’s Paid Prenatal Leave, on January 1, 2025, pregnant New York workers will be entitled to 20 hours of paid prenatal leave per calendar year, at the regular rate of pay, to be used to attend prenatal doctor’s appointments. This leave is in addition to New York statutory paid sick leave.  

 

Always contact a reputable workplace rights attorney to understand how new developments affect your rights! 

 

[1] This beats out the Federal PUMP Act, which only requires unpaid leave, unless the employee is not completely relieved from duty during the pump break.

Sticky: About this Blog, Disclaimer

Please note that the information contained in this blog is for informational purposes and is not to be considered legal advice. This blog does not create or imply an attorney-client relationship. Satter Ruhlen Law Firm makes no representation that the information herein reflects the most current state of the law.  This blog is not a substitute for consultation with an attorney licensed in your jurisdiction.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.

Do I have to disclose an ACD on my NY job application?

Earlier this year a client asked me, “Do I have to disclose an ACD on my New York job application?” The client was looking for a new job after having been arrested. Understandably, he had a lot of questions about how the arrest and possible conviction were going to impact his future job prospects. Long story short, the criminal matter (for which I did not provide representation, as I am not a criminal defense specialist), was resolved with an adjournment in contemplation of dismissal [“ACD”] – which provides for a full dismissal of the charges following a period of time, usually six months, as long as the defendant does not get arrested again during the adjournment period.

The client then posed the question: “Do I have to disclose the ACD on my job application?”

Excellent question.

Here’s how an ACD is treated in New York State in the context of finding a job. [Please note that New York City has different rules. Call an attorney if you’re not sure how to respond to employment questions about arrests!]

New York Executive Law §296.16 was amended in 2019 to provide that job applicants are not required to disclose information about an arrest that was followed by an ACD. However, an ACD is likely to show up on a pre-employment background check until the terms have been satisfied. If the applicant has exercised their right not to disclose, a prospective employer may assume the applicant is being dishonest and trying to cover up the arrest. Luckily, the New York law prohibits employers from taking an adverse action because of an ACD. Unluckily, employers may not be aware of this prohibition.

In this catch-22 situation, it is a very good idea to contact the New York State Division of Human rights, or a New York workers’ rights attorney, or both. After we talked, my client knew his rights as he went through the application process. I am happy to report that he got the job.

Always contact a workers’ rights attorney in your jurisdiction if you are concerned about how an arrest might affect your employment.

Cannabis in the New York Workplace

Cannabis in the New York workplace? New York State has a law about that. satterlaw.com/blog (Picture of a man smoking)

In July 2022, Senator Schumer’s Cannabis Administration and Opportunity Act bill was introduced, seeking to decriminalize marijuana federally. There are a variety of reasons the bill may not have the votes to pass, but many states – including New York – have laws that prohibit discrimination against employees who use cannabis… sort of.

So, what are the rules about cannabis in the New York workplace? In New York, employees’ lawful off-duty conduct is technically protected.  And in March 2021, New York Labor Law was amended to specify that lawful off-duty conduct includes recreational use of marijuana.

Does this mean you can smoke up at work with impunity? NOPE. Please don’t do it – you’ll get fired.  (See our previous blog posts here  and here for more information about how marijuana can still get you fired.)  But it does mean that a New York employee who works in a non-safety sensitive position shouldn’t be getting tested for cannabis, and shouldn’t be getting into trouble for off-duty use unless the employee “manifests specific articulable symptoms of cannabis impairment” that interfere with job performance or safety. What are “articulable symptoms of cannabis impairment?” Very good question. Nobody knows. Bottom line, don’t be high at work.

Also, if there are state or federal regulations (for example Department of Transportation rules) that require testing, the employer can still test and take disciplinary action on the basis of a positive test. If you have specific questions about cannabis in the New York workplace, make sure you consult with a New York workplace attorney!

So, the workplace is not going to become a magical mystery tour any time soon.  But what you do after work is starting look a little more like your own business.

New York Law Restricts Employer E-Spying

surveillance camera

New York State recently passed a law requiring employers to give notice to employees if they monitor employees’ telephone, email, and internet activity.

 

Section 52-c of the New York Civil Rights Act requires employers to provide written notice of e-monitoring individually to new employees.  If the employee doesn’t sign an acknowledgement of the notice, the notice is invalid.  Further, the notice must inform the employee of monitoring of telephone, email, internet, or use of any electronic device (including computer, telephone, wire, radio or fax). Notice must also be posted in a conspicuous spot in the workplace.

 

The employer does not have to inform employees about computer system maintenance and protection such as spam filters and volume controls.

 

Realistically speaking, this means an extra form for New York employees to sign during the hiring process.  If a new hire refuses to sign, in all probability the employer could refuse to keep the person on the job.  Additionally, there is no private right of action, meaning employees can’t individually sue employers for violations of this law.  But employees can report employers to the New York State Attorney General, who can impose monetary penalties. Repeat offenders will be assessed increasingly stiff penalties.

 

The law goes into effect on May 7, 2022.  If you are concerned about how your employer is monitoring you, it’s not a bad idea to call the attorney general or speak with a workers’ rights attorney in your jurisdiction.

Expanded Protection For New York Whistleblowers

 

Whistleblower law in New York was abysmal.  The only people who seemed to be protected were folks who warned the public that a nuclear power plant was about to blow up. Anything less than a “substantial and specific” public safety threat was not covered; thus, employees who reported their employers for misconduct such as cooking the books did not get job protection, even when the boss went to jail.[1]

Enter the amended NY Labor Law Section 740, which takes effect on January 1, 2022. Here’s what the amendments do:

 

  • There is no longer a requirement that the reported violation constitute a substantial specific public safety threat – although reporting such a threat is still a protected activity.
  • Employees are protected from retaliation if they report conduct that they reasonably believe constitutes a violation of a law, rule, or regulation. What constitutes a “reasonable belief” remains to be seen, so it’s wise to make sure you have a good understanding of the violation you’re reporting before making the complaint.
  • Employees must make a good faith effort to notify the employer of the violation, giving the employer the chance to fix the problem. But that notification requirement is eased in situations where there is imminent or serious danger to public safety, the employee reasonably believes that the employer would take steps to conceal the activity (such as shredding incriminating evidence), the report would result in physical harm or result in endangerment of a minor, or the employee reasonably believes that the employer is already aware of the violation and will not correct it.
  • The amendments extend the statute of limitations to two years from the date of the violation, and entitle the parties to a jury trial.
  • Particularly bad conduct can result in an award of punitive damages.
  • Employers are required to post a notice of employees’ whistleblower rights in a conspicuous spot in the workplace.

 

Fair warning:  Employees who bring frivolous claims may be ordered to pay the employer’s attorneys’ fees and costs – which often amount to six figures.  So before you file a big court claim, it’s a good idea to speak to a workers’ rights attorney in your jurisdiction.

 

 

[1] Healthcare workers had slightly better protections under NYLL 741.

New York State Minimum Wage Increasing 12/31/21

Money changing hands

Hello, fellow Upstaters!  You probably know by now that New York State private sector minimum wages are going up on December 31, 2021. This is pursuant to amendments to New York State minimum wage orders, which since 2016 have set a goal that the rate, eventually, will reach $15.00/hour for private sector workers statewide. As of December 31, 2021, minimum wage for private sector, non-hospitality or building trade employees in Upstate New York will increase to $13.20/hour.

 

But be careful before you take this opportunity to go on a shopping spree.  First, you might not be in a sector governed by the minimum wage orders (sorry, public employees).  Second, if you’re in New York City, the rules are different for you.  Third, hello food service workers!  You have to deal with stuff like tip credits, tip pooling, and other complications (hint: your wages are still far below everyone else’s because, allegedly, tips are supposed to make up the rest.)

 

Luckily, the New York State Department of Labor has created a wage calculator that will help you figure out whether, and how much, you benefit from this new increase. (Go try it out, it’s fun!)  Additionally, there’s a handy flyer that can give you some background information on where the strive for $15 has taken us so far.

 

As always, if you have questions about your wages, contact a workers’ rights attorney today!

Most New York Employers Can No Longer Drug Test Employees For Cannabis

Most New York Employers Can No Longer Drug Test Employees For Cannabis

On July 1, 2021, I blogged about the intersection of legalization of recreational cannabis use and an employee’s workplace rights in New York. At that time, the New York State Department of Labor [“NYS DOL”] had not yet weighed in on whether employers may continue to test employees for cannabis now that recreational use is legal in New York or addressed other issues created by cannabis legalization.  On October 8, 2021, however, NYS DOL released guidance clarifying workplace rights in the post legalization era.  Adult Use Cannabis And The Workplace – New York Labor Law 201-D (October 8, 2021).

Review of NYS DOL guidance tells us the following:

  • Drug testing for cannabis is now permitted only when federal, or state, law requires drug testing or makes it a mandatory requirement of the position. For example, when federal or state law mandates drug testing for drivers of commercial vehicles or other safety sensitive positions, cannabis drug screening, be it pre-employment, randomized, or in response to an accident or injury, is permissible.
  • To impose discipline against an employee suspected of being under the influence of cannabis at work, an employer must show that the employee manifests “specific articulable symptoms of impairment” that decrease the performance of their duties or interfere with an employer’s obligation to provide a safe workplace as required by state and federal occupational safety and health laws.

So, what exactly are “articulable symptoms of impairment?” The guidance does not provide a list of specific symptoms but explains that the symptoms must be “objectively observable indications that the employee’s performance of the duties of the position are decreased or lessened.” This appears to mean that neither a positive drug test for cannabis nor the smell of cannabis on one’s clothing can serve as the sole basis for an employer’s conclusion that an employee was impaired by marijuana at work and therefore subject to discipline.

Keep in mind that cannabis legalization does not prevent an employer from prohibiting cannabis use during “work hours,” which includes unpaid breaks and mealtimes, even if the employee leaves the worksite. Employers can also prohibit the use of cannabis during periods when an employee is “on call.” In addition, employers can also prohibit cannabis possession while at work and prohibit cannabis use, and possession, in company vehicles or on company property, even after regular business hours or shifts.  When a remote employee works from the confines of a private residence, however, an employer cannot prohibit possession of cannabis at the remote location because the term “worksite” does not include a remote employee’s private residence. N.Y. Lab L. §201-D. As such, an employer can only impose discipline of a remote employee if s/he exhibited articulable symptoms of impairment during work hours, not for possession of cannabis.

If you believe you have been improperly disciplined by your employer for legal use of cannabis, contact a workers’ rights attorney.

Paid Voting Leave

Need To Take Time Off From Work To Vote on November 2, 2021? 

On Tuesday, November 2, 2021, polls in New York will be open from 6:00 am to 9:00 pm.

Employees in New York are eligible for up to two hours of paid time off to vote in certain circumstances. 

Specifically, if you don’t have “sufficient time to vote” during your workday, NYS Election law gives you up to two hours paid time off to vote. Election Law §3-110. By contrast, you are deemed to have “sufficient time to vote” if you have four consecutive hours to vote either from the opening of the polls to the beginning of your shift, or four consecutive hours between the end of your shift and the closing of the polls. Id. 

Here’s an example.  If you must work from 9:00 am to 5:00 pm on Tuesday, November 2, 2021, the election law deems you as having “sufficient time to vote” and therefore not eligible to paid voting leave.  This is because the polls are open until 9:00 pm – which is four consecutive hours after the end of your shift at 5:00 pm.  If, however, you work from 9:00 am to 6:00 pm on Tuesday, November 2, 2021, you can get paid voting leave because the polls are open for only three consecutive hours after the end of your shift. The total amount of paid time off you are entitled to depends on several factors, including travel time from your workplace to your polling place, waiting time at your polling place, traffic, among other things. The maximum paid time off to vote is capped at two hours. 

Please note the following: 

  • You are required to give your employer at least two working days prior notice of your intention to take paid time off to vote, but not more than ten working days’ notice. The term “working days” is defined as any day that your employer is open for business. 
  • Your employer cannot require you to use personal time off or any other form of earned leave time to vote. 
  • Regardless of your vaccination status, masks are required for all individuals entering polling locations. 

If, you believe your employer is impermissibly denying you paid time off for voting, contact a workers’ rights attorney or the New York State Department of Labor.  

UPDATE:  The COVID-19 Vaccination and Your Workplace.  Know Your Rights!

This article is an update of our January 27, 2021 blog post

As more and more employers implement mandatory vaccination policies for employees, it’s important for employees to understand why the requirement is legal, and what their options are.

Legal challenges to vaccine mandates have not, so far, been successful.  Applications for injunctive relief have been denied, and a federal court in Texas has rejected wrongful termination and public policy arguments.  New York City Municipal Labor Committee, et al. v. City of New York, et. al, Index No. 158368/2021 (New York Co. September 22, 2021); Bridges, et al v. Houston Methodist Hospital, et al., H-21-1774 (SD Tex. June 12, 2021).

This said, employees who are afflicted with disabilities that make it dangerous for them to be vaccinated, as well as employees with sincerely-held religious beliefs, may be able to seek a reasonable accommodation. Each employer has its own process for requesting those accommodations, and determining whether there is a reasonable accommodation available involves an interactive process that requires the cooperation of both employer and employee. Below, we recap several FAQs from our previous vaccination article.

Can my employer demand that I receive the COVID-19 vaccine as a condition of employment?

Yes. Requiring the vaccine is not a medical exam, nor does it seek information about your current health status or impairments. A vaccine mandate does not in itself violate discrimination laws if the mandate allows a case-by-case assessment of whether there a reasonable accommodation could be provided for those who need it.

What if I do not want to be vaccinated because of my disability or because of my sincerely-held religious beliefs?

If your disability or religious beliefs prevent you from being vaccinated, you may request an accommodation from your employer.  When you request an accommodation, your employer needs to determine if you, as an unvaccinated employee, pose a “direct threat” to the health and safety of yourself or others, and whether the threat can be eliminated or reduced by a reasonable accommodation.

If the  assessment results in a finding of direct threat, your employer will try to determine if there is a reasonable accommodation that would allow you to continue to work. This interactive process includes getting information from you and your doctor or religious leader. It is important for employees to cooperate in the interactive process; failure to do so can result in termination. Keep in mind that your employer does not have to provide the specific accommodation that you request. Also, if your employer genuinely cannot come up with a reasonable accommodation, you may be terminated.

Can my employer ask for proof that I have received the COVID-19 vaccine?

Yes. Simply requesting proof of a COVID-19 vaccine is not likely to elicit information about a disability and, as such, is not a disability-related inquiry that would trigger ADA or other health information privacy protections. However, if you have not been vaccinated due to a medical condition, you’ll need to be prepared to request an accommodation, which will require you to provide  medical information to allow the employer to determine what kind of accommodation can be provided.

Do I have ADA protection if my employer administers the COVID-19 vaccine ? 

Yes. The pre-vaccination medical screening questions are likely to elicit information about your health. When these questions are asked by your employer (this might happen in the healthcare context), they meet the ADA definition of a “disability-related” inquiry, and, as a result, you are entitled to ADA protection. The ADA requires that the disability-related screening questions be “job related and consistent with business necessity.” If you are concerned that your employer’s mandatory vaccination program does not meet this threshold, contact an attorney for advice.

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