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Important Employment Updates

Employers to cover 100% of COBRA costs for employees:

The American Rescue Plan Act (ARPA) was signed into law on March 11, 2021. ARPA contains regulations relating to COBRA and an employer’s responsibility to its employees.

Specifically, ARPA requires: Employers to cover 100% of the employee’s cost of continuing health coverage under COBRA for up to six months if an employee has lost health coverage due to (a) a reduction in force or (b) the employee was involuntarily terminated. Basically, an employee terminated for any reason, other than gross misconduct, will fall within this provision. The COBRA subsidy period covered by ARPA is from April 1, 2021 to September 30, 2021. It applies to all employees who are or would’ve been covered during this six month period. It is not applicable if an employee is entitled to any other health insurance coverage.

For more information regarding your rights to the COBRA subsidy or to find out if you are entitled to additional benefits from your company due to a recent termination and/or receipt of a severance package, contact Sheree Donath at sheree@donathlaw.com.

Employer’s are required to give employees PAID time off to get the Covid-19 vaccine:

New York employers are required to provide employees time off to get a Covid-19 vaccination. This requirement became effective on March 13, 2021 and currently runs through December 31, 2022. The vaccination leave law applies to all private employers regardless of their size.

Per the new vaccination leave law:

  •  entitles employees to paid time off of up to four (4) hours for each vaccine injection. Employees are entitled to paid time off of up to four (4) hours for each dose of the vaccine they receive (i.e. so if the employee gets a Covid-19 vaccine that requires two doses and the employee has to go twice to be vaccinated, they are entitled to up to eight (8) hours of paid time off).
  • prohibits employers from requiring employees to use PTO or sick leave or any other leave
  • requires that employees be paid their regular rate of pay.
  • doesn’t affect rights under a collective bargaining agreement that may allow for additional time off.
  • prohibits employers from discriminating or retaliating against employees for exercising their rights under the vaccination law.

For more information regarding the vaccination law or updating employment policies, contact Sheree Donath at sheree@donathlaw.com or by clicking here.

Coming Soon  … legalizing recreational marijuana in New York’s effect on the workplace.

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My Employer Gave Me a Performance Improvement Plan. Is this an Uphill Battle That I Can Achieve or am I Going to be Fired Anyway?

Performance Improvement Plans, also known as a P.I.P or an action plan, are sometimes used to help employees improve their performance but are often used by employers as a means to terminate employees. They are a written record of the employee’s alleged deficiencies.

A performance improvement plan requires that the employee meet certain expectations within a 30, 60 or 90 day period. The expectations are ones that usually cannot be achieved in this short period of time and ones that come as a surprise to the employee receiving the plan.

A performance improvement plan generally comes after a performance review. The employee is left with a sense of confusion of how can I make the situation better, if at all. The employee struggles with what their options are and how to proceed.

A lowered performance review and/or receipt of a performance improvement plan is done to force the employee to make a decision. Fight to keep their job and achieve the seemingly unachievable goals, or resign from their job and lose out on benefits, unemployment and/or vesting. Employees often wonder whether they should quit or work through the performance plan.

Employees should take action upon receipt of the performance improvement plan and should respond to the plan, in writing. The performance plan should be reviewed to see if it violates any contracts, policies or company practices. The plan should be compared to the employee’s job description to see if the plan requirements are outside the parameters of the job. It should be determined whether the employee received any prior warnings. Whether there was a change in management that sparked the lower performance rating or performance plan. Or, among others, whether the employee is being placed on the plan for an improper or illegal reason.

If you have received a performance improvement plan or a poor performance review, you have options and you should take action to determine how to proceed.

EMPLOYEES CAN TAKE ACTION WHILE THEY ARE STILL EMPLOYED AND DO NOT HAVE TO WAIT UNTIL THEY ARE FIRED OR FORCED TO RESIGN!

For more information about your options contact Sheree Donath to schedule a consultation.

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Happy New Year from Donath Law, LLC

May 2021 bring you, your family and friends health, happiness, prosperity and everything you have been dreaming about this past year.

As you embrace this new year, consider what will make you happy and how to accomplish that goal.

If you are thinking about changes in your employment or your marriage, start this new year right, and contact Donath Law, LLC to find out your rights and options.

After a long year, let’s remember that we still have some control over our destiny. Let’s together make 2021 the best it can be.

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The EEOC Offers New Guidance Regarding Vaccines in the Workplace

The EEOC has been offering continuing guidance about discrimination laws in the workplace and how they relate to the current pandemic.

Yesterday, they updated their frequently asked questions to include a section on the new vaccine and requiring vaccinations.

Click on this link for more information and to read the frequently asked questions and response from the EEOC.

If you have questions or concerns regarding your employment, contact Sheree Donath at 516-804-0274 or sheree@donathlaw.com to find out your rights and options.

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My Severance Package Has a Non-Disparagement Clause – Is that Common?

Employees who are terminated from their employment may be offered a severance or separation package. Aside from the monetary component of the severance offer, there are various legal provisions that the employee is asked to agree to in order to receive the payment(s) that are being offered. One common provision found in a severance package is the non-disparagement clause.

Non-disparagement clauses generally seek to protect the company from the current or former employee stating anything negative about the company, its officers and its employees. They can be found in severance documentation and/or in employment agreements.

An example of a standard non-disparagement clause is the employee agrees not to make any statements, written or oral, or cause or encourage others to make any statements that defame, disparage or otherwise criticize the personal and/or business reputations, practices or conduct of the employer, officers, employees, affiliates, and/or the products and services of the employer.

Non-disparagement clauses can be more detailed, stating specifically, that the employee may not say anything negative or that may result in any harm to the business. Such statements cannot be verbal or be to the media, on social media, in writing, or in any future publications, among others.

Rarely, are departing employees offered mutual non-disparagement clauses. Employers are generally concerned about providing a mutual non-disparagement clause because depending on the size of the employer it may be difficult for the company to control the remaining employees and former employees of the business.

However, like all other components of a severance package, severance is a business exchange, the employer is seeking to buy something from the employee and in exchange have the employee agree to some limitations (i.e. release of claims, confidentiality, non-disparagement). Thus, employees have rights and should have the agreement reviewed and possibly negotiated so that the employee understands what they are signing, what they are giving up and what they may be receiving and possibly receive their own non-disparagement protections.

Severance and new employment documents should be reviewed before signing them so that the employee understands the legal terms within. For more information on why a severance package should be reviewed, click here.

To find out what terms generally appear in a severance package, click here.

To understand whether terms in the severance agreement can be negotiated and what items can be requested, click here.

If you received severance or separation documents that you would like reviewed and to determine if the offer within can be enhanced, contact Sheree Donath by clicking here or at sheree@donathlaw.com or at (516) 522-2743.

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New York’s Paid Sick Leave Law – Who Does it Apply to and How/When Does it Accrue?

In April, New York enacted mandatory sick leave laws to go into effect on September 30, 2020. While the law goes into effect at the end of the month, employees cannot start using any accrued sick leave until January 2021.

The amount of leave depends on the size of the employer and the employer’s net income from the prior year. The same is true as to whether the employee is entitled to paid or unpaid sick leave.

Employers must count both full-time and part-time employees. It still unclear whether employees that work outside of New York would also be included in the count.

How is the amount of time due to employees calculated?

Employers with4 or fewer employees in any calendar year and a net income of $1 million or less = at least 40 hours of unpaid sick leave in each calendar year

Employers with 4 or fewer employees in any calendar year and a net income of more than $1 million = at least 40 hours of paid sick leave in each calendar year

Employers with 5 -99 employees in any calendar year = at least 40 hours of paid sick leave in each calendar year

Employers with 100 or more employees in any calendar year = at least 56 hours of paid sick leave in each calendar year

An employee is to be paid their regular rate of pay or minimum wage, whichever is greater.

How is sick leave accrued?

Sick leave is accrued at a rate not less than one (1) hour for every 30 hours worked.

Unused and accrued sick leave can be carried over to the following year. However, employers can limit the amount of time used in one year to 40 hours or 56 hours during one calendar year. The law does not require payment of unused, accrued sick time upon an employee’s departure.

Employers can also frontload the sick leave an employee is entitled to, but if they do, they cannot then reduce the amount of sick leave based on the actual time worked by the employee.

Sick leave will begin to accrue on September 30, 2020 to be used starting January 1, 2021. For those employees hired January 1, 2021 or after, the sick leave can be used once it accrues.

What are some reasons an employee can use New York Paid Sick Leave?

Employees can use sick leave:  

(1) to care for an employee or employee’s family member’s mental or physical illness, injury or mental health condition, whether it has been diagnosed, or requires medical care at the time the leave is requested; or

(2) for the diagnosis, care or treatment of an employee’s or employee’s family member’s mental or physical illness, injury, or health condition, or for preventative care for the employee or family member; or

(3) when an employee or the employee’s family member has been a victim of domestic violence, a family offense, sexual offense, stalking or human trafficking receives assistance, attends events related to this experience, or takes any other action(s) to protect the health of safety of the employee or employee’s family member.

NYPSL also offers definitions of relevant terms such as “family member”, “parent” and “child”.

Must employers keep records of the sick leave? Yes.

Employers must keep records of sick leave provided to employees for six (6) years. Employees can make oral or written requests for the leave. The employer is obligated to provide a summary of the leave accrued and used by the employee. Employers cannot require employees to disclose confidential information pertaining to the request.

Can an employer retaliate against an employee for their use of NYPSL? No.

Employers are prohibited from retaliating against employees who use NYSPL. Employees must be returned to the same position, same pay and other terms and conditions of employment they maintained prior to their use of the sick leave.

It is expected that the Department of Labor will provide additional guidance and regulations to assist employers/employees with this new law.

There are other leave laws that are currently in effect, including, without limitation: FMLA, New York Paid Family Leave, Family First Coronavirus Response Act, New York City Paid Safe and Sick Leave Law.

For more information about your rights and options, contact Sheree Donath at sheree@donathlaw.com or at 516-522-2743.

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Does Hybrid/Virtual Back To School = A Hybrid/Remote Work Schedule?

As parents try to navigate the evolving requirements for their children to go back to school, they are also faced with the hardship of wondering what will happen with their employment. Faced with uncertainties about the number of days children may attend school in person or virtually, causes anxiety about their working relation. Some employers have extended work from home situations into next year, while others are mandating a return to in office work.

As school opening plans remain fluid, employees may want to engage in discussions with their employers now to determine their options and what will work best for the employer and the employee. In an effort to maintain a positive working relation, below are some possible options that employers and employees should consider:

(a) a full work from home option

(b) partial work from home option, with the flexibility to alter days in the office and working from home

(c) a flexible work schedule allowing employees to work different hours or different days to complete their work

(d) a modification of the employees schedule from a full time to part time schedule

(e) determining if the employer has or will provide onsite childcare or if the employee can bring their child to work with them

(f) seeking a childcare allowance as part of the employee’s compensation

(g) seeking a leave of absence

The above list is not an exhaustive list, but rather suggestions of how to modify an employee’s current work situation and would need to pertain to each individual situation.

Under the Families First Coronavirus Response Act, employees can also seek time off to care for their children due to the closures of schools. For more information on the FFCRA click here.

Employers must be careful to abide by the laws in allowing parents to care for their kids. Employers making decisions regarding employees requests for accommodations must do so in a fair and non-discriminatory fashion. Failure to do so, may result in claims of gender, familial status and/or caregiver discrimination and retaliation, amongst others.

Employees working from home may also be entitled to expense reimbursement for those expenses associated with the cost of a home office (i.e. computers, printers, ink, pens, paper, etc.). This too should be discussed with the employer to determine what the employer’s expense plan may require for reimbursement.

For counseling and guidance on your current work situation or to find out your options, contact Sheree Donath at 516-522-2743 or at sheree@donathlaw.com.

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Some Helpful Links for Employers and Employees as Workplaces Begin to Reopen With Social Distancing Requirements, Among Others

While many businesses will continue having their employees work remotely from home, others will begin bringing employees back to the workplace shortly. In doing so, there are guidelines that employers must follow and information that employees should be aware of upon their return.

The below links are provided to help both employers and employees to know their rights and obligations. These are meant to offer some guidance to the workforce, but is not an inclusive list of resources.

https://www.osha.gov/Publications/OSHA3990.pdf

https://www.dol.gov/coronavirus

https://www.eeoc.gov/coronavirus

https://dhr.ny.gov/coronavirus-discrimination

https://www1.nyc.gov/site/cchr/media/covid19.page

Feel free to contact Sheree Donath for answers to questions that are specific to your rights as an employee and what you can or should expect from your employer.

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What is Your Ideal Job Offer? Rank Your Priorities

Amidst the uncertainty in today’s world, one thing you can do is determine what your ideal job would look like if you had the ability to choose or create that role. Whether you are currently working from home, are working part time or are presently unemployed, now is a good time to reflect upon life and assess what is truly important to you in the future. In doing so, one thing to evaluate is what you want (or expect) from your job or your employer. There are many items to consider. Some of the considerations may be essential and others nothing more than a dream, but ultimately, if you don’t know what you are looking for, then you will never be able to achieve your goal.

So during this period of reflection, take the time and rank your job priorities. Below is an non-exhaustive list of items for consideration. Review them, consider them, then make a list in order of importance to you. This list is not in any particular order and is not meant to sway your decision as to importance. What is valuable to you, may not be valuable to your spouse, friend, relative, colleague, or a stranger on the street. This list is meant simply to assist you in creating your own categorization of what you are looking for in the currently changing world and job market. In creating your list, keep this thought in mind: in order to be truly happy with my job/career, I would like my job to offer … . Now start to create a list that you can use to obtain your goal.

Start your list with, “I am seeking the following from my job/career” and begin ranking your priorities so that you can negotiate these terms into your next offer letter/employment contract.

(a) How are you looking to be compensated? salary, commission, bonuses, equity, stock options, deferred compensation

(b) Will you receive or do you need health insurance?

(c) Are you looking for a flexible work schedule?

(d) Are you looking for the ability to work from home?

(e) Will you be required to relocate yourself and/or your family?

(f) Will you be subject to restrictions on your future employment (i.e. no non-solicitation or non-compete provisions) or will you have the freedom to change jobs?

(g) Are you going to be an at will employee or will you receive a contract with a set term of employment?

(h) Will you receive severance if you are terminated without cause or resign for good reason?

(i) Do you want/need paid vacation time? Paid sick leave? Paid time off?

(j) Are you looking to be a partner? Owner? Employee? Consultant?

(k) Do you want a specific title?

(l) Is this a position with promotional opportunities?

(m) Will you have direct or indirect reports? Do you want to manage others?

(n) Will you receive expense reimbursements?

(o) Are you being offered perks like gym membership, car allowance, monthly stipend, free coffee, etc.?

(p) Will you be working in a collaborative work environment?

(q) Do you have the ability to work on your own and without much oversight?

(r) Is there frequent business travel or no business travel at all?

Remember in making your list, that the above is not exclusive, so do not forget to add additional items to your list that are not listed above but may be extremely important to you.

Click here to contact Sheree Donath to schedule a consultation to obtain assistance in negotiating terms of new employment or if you have received a job offer that you would like to have reviewed, discussed and negotiated.

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Important Information to Understand the Families First Coronavirus Response Act

The United States Department of Labor released guidance regarding the Families First Coronavirus Response Act which goes into effect on April 1, 2020.

For more specific information related to this act, review the questions and answers posted at www.dol.gov/agencies/whd/pandemic/ffcra-questions.

Donath Law, LLC is available to answer any questions that employees have regarding this new act or the current state of their employment. For assistance, contact Sheree Donath at 516-522-2743 or at sheree@donathlaw.