Now that we have begun this new year, it is important for employers to plan for the new laws that have recently taken effect or that will take effect in 2023. This article summarizes the new legal requirements to help New York employers in 2023.
Paid Family Leave
Effective January 1, 2023, New York’s Paid Family Leave program has expanded the family members covered under the program, and now includes siblings (biological, adopted, half-siblings, and stepsiblings) in the definition of family members covered under the law. Additionally, the rate paid for Paid Family Leave will increase. Like in 2022, employees who now take Paid Family Leave will receive 67% of their average weekly wage. This rate is capped at 67% of the New York State Average Weekly Wage (the “NYSAWW”), and has now increased in 2023 to $1,688.19, which will increase the maximum weekly benefit under the law to $1,131.08. Employers should also note that New York has reduced payroll deductions for employee contributions to 0.455% of their gross wages paid to the Paid Family Leave fund. This contribution is capped as a percentage of the NYSAWW at $399.43 annually.
Paid Vaccination Leave
New York State’s paid vaccination leave law has been extended through December 31, 2023. This law applies to all private employers and select public employers, and requires employers to provide employees with a sufficient period of time to receive a COVID-19 vaccination. The law still remains the same and provides employees with up to four hours of paid leave at a time per vaccination. Employers must pay employees at their regular rate of pay during this leave and the leave may not be deducted from other forms of leave for which an employee may be eligible.
Minimum Wage Increase
Effective December 31, 2022, the New York State minimum wage rate has increased from $13.20 to $14.20 an hour for Upstate New Yorkers (this does not include workers in New York City, Long Island and Westchester, where the minimum wage is already, and will remain, $15 per hour).
Tip Credit Increase
Effective December 31, 2022, the cash wage for service employees outside of New York City, Long Island or Westchester increased from $11.85 and tip credit to $2.35. Food service workers outside of New York City, Long Island or Westchester also saw an increase in cash wage to $9.45 and tip credit to $4.75.
Salary Threshold Increase
Effective December 31, 2022, the salary threshold for both executive and administrative employees working outside of New York City, Long Island, and Westchester will increase to $1,064.25 per week up from $990.00 in 2022.
Wage Transparency Bill
On December 21, 2022, Governor Hochul signed into law a statewide salary transparency law that requires, by September 17, 2023, New York employers with four or more employees to disclose compensation or the range of compensation (including minimum and maximum salary or hourly range of compensation) that the employer in good faith believes to be accurate, as well as the job description for the corresponding position. This law does not supersede or preempt any local law (including New York City and Westchester’s transparency laws).
Electronic Poster Requirement
Effective December 16, 2022, employers must now make available to all employees electronic copies (either through their website or via email) of all documents required to be physically posted in the workplace pursuant to state and federal law. Additionally, employers must provide employees with notice that the documents required for physical posting are available to be viewed electronically.
As of February 20, 2023, employers will be expressly prohibited from taking any sort of disciplinary action against an employee for using any form of leave that is legally protected by federal, state or local law. Examples of these protected types of leave in New York include paid family and sick leave, jury duty leave, domestic violence leave, and voting leave. Employers with no-fault attendance policies should take note of this new law as the legislation expressly prohibits employers from assessing any demerit, occurrence, any other point or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action. While this new law does not prohibit the use of no-fault attendance policies, employers may not assess points for absences from protected leaves.
Adult Survivors Act
On May 24, 2022, Governor Hochul enacted the Adult Survivors Act, which provides adult survivors of certain sexual offenses one year (beginning November 24, 2022) to file a claim against an alleged abuser and also against purported enablers of the alleged abusers. This means under vicarious liability or negligence standards, employers may be liable for the conduct of their employees for possibly decades after an alleged incident.
Protections for Nursing Employees
New York State’s current law protecting nursing employees requires employers to provide reasonable unpaid time to allow employees to nurse for up to three (3) years following childbirth and prohibits employers from discriminating against such employees who choose to nurse and/or express milk in the workplace. Additionally, under the current law employers are required to make reasonable efforts to provide a lactation room or location for mothers to nurse. Effective June 7, 2023, the law will require employers to designate a specific lactation room or location upon request of an employee to nurse in the workplace. As of June 7, 2023, the law will have the following similar requirements as to New York City’s nursing laws and will require the following for the lactation room or location:
The location must be (1) in close proximity to the employee’s work area; (2) well lit; (3) shielded from view; and (4) free from intrusion from other persons in the workplace or public.
At a minimum, the location must include a chair, a working surface, nearby access to clean running water and, if the workplace has electricity, an electrical outlet. More importantly, the location cannot be a restroom or toilet stall.
If the employer cannot designate the room or locations solely for nursing, it must be made available to nursing employees when needed and cannot be used for any other purpose while it is being used for nursing. Employers must provide employees with notice as soon as practicable when the location is being used for nursing.
If employees have access to refrigeration in the workplace, employers must permit employees access to the refrigeration for the purpose of storing expressed milk.
Employers must note that New York’s Health and Essential Rights Act (the “HERO Act”) is still relevant despite the fact that the New York State commissioner of health ended the designation of COVID-19 as an airborne infectious disease. An amendment of the HERO Act which took effect on December 28, 2022 still requires employers to recognize a workplace safety committee within five (5) business days of its establishing. Failure to do so will result in penalties of $50 a day until the violation is remedied.
With all of these new laws at the beginning of a year, employers should take the time to evaluate their procedures and policies to ensure compliance with all laws currently in effect. For the laws that have not yet, but will soon, come into effect, employers should proactively prepare to change any policies or procedures to ensure implementation when the time comes. If you have any questions, please do not hesitate to contact Portnoy, Messinger, Pearl & Associates, Inc. for assistance.