Employment Law Alert: Reopening resources, with a side of voting and marijuana

Employment Law

Jun 8

Employee Voting in New York

New York State has changed the law in this regard for the second time in as many years, returning to the pre-2019 law. The change affects employee rights with respect to the June 23 primary elections. There is a posting requirement effective June 9, 2020 for most employers, explained below. The law and requirements are as follows:

A Registered Voter is entitled to time off to vote, without a loss of pay, if the Registered Voter does not have sufficient time to vote outside of his/her scheduled working time. An employee has such “sufficient time” if s/he has four (4) consecutive hours either between the opening of polls and the beginning of his/her working shift, or between the end of his/her working shift and the closing of the polls.
1. Example: if polls are open until 9:00 p.m. and an employee is scheduled to work from 9:00 a.m. to 5:00 p.m., the employee has sufficient time to vote. Thus, the employee is not eligible for time off from work to vote.
If the employee does not have sufficient time to vote as explained above, then s/he may take off only as much time as is required to vote, up to a maximum of 2 hours, without any loss of pay. The employer may designate whether time off is provided at the beginning or end of the employee’s shift, and does not have to provide time off mid-shift.
Employers must conspicuously post a notice setting forth the provisions of the law, at least 10 days before every election and until the close of polls on election day. For employers who are not open on weekends, that means by June 9, 2020 to be timely for the June 23rd primaries. A copy of the poster is on the second page here: https://www.elections.ny.gov/NYSBOE/elections/TimeOffToVoteNotice.pdf.
An employee who requires working time off to vote must notify the employer at least 2 working days but no more than 10 working days prior to the election.
We note that due to the pandemic, Governor Cuomo’s executive orders have relaxed the rules regarding absentee ballots. We have sought guidance from the Board of Elections on the effect of those orders on the requirements above, and have not received a response. We recommend seeking individualized guidance regarding what questions may be asked of employees in this regard, and what documentation may be requested.

Pre-Employment Marijuana Screening in New York City

Effective now, New York City employers generally are prohibited from testing prospective employees for the presence of marijuana or tetrahydrocannabinols as a condition of employment. There are limited exceptions including, among others, with respect to positions requiring a commercial driver’s license; or requiring the supervision or care of certain children, medical patients, or vulnerable persons.

Reopening Resources in New York and New Jersey

As all parts of the States currently are in various stages of reopening, we are providing the below list of resources regarding reopening plans. As the materials have become voluminous and different rules affect different industries, businesses should obtain individualized guidance. We note that industry-specific guidance issued by trade or professional associations/organizations may provide a useful “short cut” to gathering all of the material for particular industries, but also may not be a substitute for individualized guidance.

New Jersey Resources:

NJ FAQs about Phased Reopening: https://covid19.nj.gov/faqs/nj-information/general-public/how-does-new-jersey-plan-to-lift-restrictions-what-does-a-responsible-and-strategic-restart-of-new-jerseys-economy-look-like
NJ Executive Orders (many details of reopening particular industries are contained here): https://nj.gov/infobank/eo/056murphy/approved/eo_archive.html
NJ Division of Consumer Affairs – Guidance for Healthcare Professionals: https://www.njconsumeraffairs.gov/COVID19/Pages/professionals.aspx
NJ Department of Health Guidance on Resuming Elective Surgeries: https://www.nj.gov/health/news/2020/approved/20200519a.shtml
NJ Division of Consumer Affairs – Guidance regarding Other Licensees and Registered Businesses (Non-Healthcare): https://www.njconsumeraffairs.gov/COVID19/Pages/professionals.aspx

New York Resources:

NY’s Reopening Plans: https://forward.ny.gov/ny-forward
To determine whether your business is eligible to reopen, NY’s interactive tool is here: https://www.businessexpress.ny.gov/app/nyforward
Guidelines for various industries permitted to reopen in Phase 1: https://forward.ny.gov/phase-one-industries
Guidelines for various industries permitted to reopen in Phase 2: https://forward.ny.gov/phase-two-industries
Statewide guidance on various industries and services: https://forward.ny.gov/statewide-guidelines. Please note after you have read the guidance, that the business designee should sign, affirming that it is operating according to such guidance and other specific health and safety requirements issued for the industry. Business affirmation webpages can be found at the above link or here: https://forms.ny.gov/s3/ny-forward-affirmation.
In order to reopen when appropriate, as designated by NY’s phased reopening plans, each business must develop a Safety Plan which must be maintained on-site and be made available to the NY Department of Health or other local health official, if requested. NY has developed template plans for businesses to use, and a list of resources that may address industry-specific issues/obstacles. The general Safety Plan Template is found here: https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/NYS_BusinessReopeningSafetyPlanTemplate.pdf
FAQs regarding New York Forward and business reopening: https://esd.ny.gov/nyforward-faq

Other Resources:

The following supplement the resources for best safety and health practices upon reopening, and may provide additional resources for specific industries.