Bulletin: New York State Sick Leave, new FMLA forms, and New Jersey Misclassification Poster

New York State Sick Leave Law.

For New York employers only: Effective September 30, 2020, New York's new statewide sick leave law went into effect, and employees began accruing sick time as of that date (although employers may choose to not permit use of the accrued sick time until January 1, 2021). The good news is that, for employers located in New York City or Westchester County, the new statewide law for the most part does not depart substantially from the local sick leave laws that have been in effect for several years. However, some significant differences already are apparent, and the bad news is that the state has not yet released any regulatory guidance, leaving many questions unanswered. Regardless, New York City and Westchester employers should update their sick leave policies, and employers outside of those locations will need new policies, in very short order. We regularly assist with drafting and administering these types of policies.

New Family Medical Leave Act (FMLA) forms.

The US Department of Labor has released updated forms for use by covered employers (generally, those with 50 or more employees at or within 75 miles of the worksite) in complying with the FMLA. They are available here: https://www.dol.gov/agencies/whd/fmla/forms. These include, among others, the Notice of Eligibility & Rights and Responsibilities, provided to an employee at the time of a request for FMLA leave, and the Designation Notice, used to confirm that the requested leave in fact will be deemed FMLA-qualifying.

Our philosophy generally is that if the government provides model forms, employers ought to use them, and these new forms are convenient (unlike in the past) in that they may be completed and saved electronically. However, we do suggest that employers consider preparing their own forms based on these new templates, without the portions that are unnecessary and not required by law. (For example, there is no reason for the employee receiving the forms to see the instructions to the employer.)

The rules regarding notice and information under the FMLA are complex. We regularly assist employers in the preparation and proper use of the required FMLA forms.

New Jersey "misclassification" poster.

For New Jersey employers only: The NJ Department of Labor and Workforce Development has issued a required poster, addressing the matter of employees who are misclassified as independent contractors, and found here: https://www.nj.gov/labor/forms_pdfs/lsse/mw-899_520_missclassification11x17.pdf. The poster must be posted "in a place or places accessible to all employees in each of the employer's workplaces." For employers who have not yet reopened for in-person work, to whom the poster should be transmitted and how are matters to discuss with counsel.

New Jersey's assault on employers who utilize the services of individual independent contractors continues unabated. We strongly recommend that employers read the misclassification poster in full, and consider whether its contents may require reconsidering the classification of any independent contractors previously or currently engaged.