On April 28, 2020, the Dutchess County Supreme Court issued a Decision & Order, ruling in favor of an employee of the Town of Pleasant Valley, who brought an Article 78 proceeding to challenge her termination by the Town and its former Supervisor. In the Decision, the Court denied the Town's motion to dismiss in its entirety.

The employee, a former secretary and bookkeeper/controller, alleges she was wrongfully terminated by the Town Supervisor without a vote by the Town Board, and for reasons that are arbitrary and capricious. After her termination, at least one Town Board member made false and stigmatizing statements at a public meeting about the employee, when she was not present. The Court concluded that she may be entitled to a full name-clearing hearing, writing: "[T]he statements made against petitioner at the August 8, 2019 public Town Board meeting attack her moral character, accuse her of [wrong]doing and possible criminality. These statements "are stigmatizing in the constitutional sense because of their inevitable effect of foreclosing employment opportunities."

Laura Wong-Pan, Esq., represents the employee.

The Court's Decision & Order in the matter of O'Connor v. Town of Pleasant Valley can be accessed here.

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A series of emergency Federal and State employment-related laws and Executive Orders have been passed that deal with leave from work due to business closure, orders of quarantine or isolation, school closures, illness, and need to care for an ill family member.

From the Federal Government, the Families First Coronavirus Response Act requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The Department of Labor’s Wage and Hour Division (WHD) administers and enforces the new law’s paid leave requirements, which includes the ability to qualify for up to 12 weeks of leave under the expanded Family and Medical Leave Act. The new provisions apply from April 1, 2020 until December 31, 2020. More detailed information is found here.

On March 26, 2020, the Department of Labor provided additional guidance regarding how the Families First Coronavirus Response Act will be implemented. As stated in that guidance, employees may be asked to provide documentation to substantiate the request for the absence, including a copy of the quarantine or isolation order, or written statement from a health care provider, or written notice of the closure of the school or child care facility where the employee's child attends. The Department will be issuing implementing regulations sometime in the near future. The guidance is found here.

New York State Paid Sick Leave is also now available to certain employees for illnesses related to the coronavirus, or when employees are under an order of quarantine or isolation, or the closure of a school or child care facility where the employee's minor child(ren) attends. Private employers with more than 100 employees and all public sector employers must provide 14 days paid sick leave. Employers with between 11-99 employees, or 10 or fewer employees plus 2019 net income over $1 million, must provide 5 days paid sick leave. For more information, click here.

Also, under New York State’s paid family leave law, employees may be able to access up to 10 weeks of partial wage replacement to care for a close family member with a serious health condition. Information about the paid family leave law is found here.

If you have any questions, contact Law Office of Laura Wong-Pan PLLC at 845-218-1288.

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Paid sick leave might be a reality for millions of employees. On Friday March 14, 2020, the House of Representatives passed a Bill (H.R. 6201). introduced by Rep. Nita Lowey (D-NY) with bipartisan support (363 -40), intended to help employees and individuals through the Coronavirus crisis by, among other provisions, creating a new paid sick leave law, and amending the Family and Medical Leave Act (FMLA).

The paid sick leave portion is titled the “Paid Sick Days for Public Health Emergencies and Personal and Family Care Act.” If passed by the Senate, this might be the first time that paid sick leave for employees has been required by Federal law. This article summarizes the sick leave portions of H.R. 6201.

Entitlement to paid sick days leave

Under the Paid Sick Days portion of the Bill, full and part-time employees are entitled to their full salary or wages for 14 consecutive days (10 workdays) during public health emergencies.

Employees would accrue least 1 hour of paid sick time for every 30 hours worked, to be used after the first 60 days of work. But for public health emergencies, the paid sick leave would be earned and available to be used immediately.

There is no "use it or lose it" for sick leave accrued under H.R. 6201. Accrued sick leave can be carried over to the next year, and employees would be able to accumulate up to 56 hours of accrued sick leave, though none is paid out if employee is fired, laid off or quits.

When sick leave may be used

This is the key part of the Bill. It is intended to allow employees to take paid sick leave for certain situations, including when the employer’s business is closed due to Coronavirus or other public health emergency, and when the employee is subject to quarantine based on a recommendation of a Federal or State official or health care provider.

The Bill also prohibits employers from insisting that employees find someone to replace them while they are out sick, as a condition to being allowed to take paid sick leave.

Changes to FMLA

Family and Medical Leave Act (FMLA) is also temporarily amended to provide employees with extended leave at two-thirds of their regular salaries. This only applies to employees working for a business with fewer than 500 employees.

The FMLA provisions would apply to employees who have been employed for 30 calendar days. The usual FMLA requirements are that the employee must be employed for a year, worked for 1,250 hours, and works in a location where there are 50 employees within a 75-mile radius. These would not apply for public health emergencies.

Following the first 14 days of absence from work, workers who require further days of leave will be covered under the FMLA for up to 12 weeks.

FMLA can be used when the employee needs leave due to a public emergency (including the Coronavirus/COVID-19 outbreak), including for purposes of a quarantine by recommendation of a health provider or to care for a child of the employee, if the elementary or secondary school or place of care is closed due to a public health emergency.

Paid Sick Leave applies to CSE meetings and to victims of sexual violence:

The proposed Paid Sick Leave law also allows employees to take paid sick leave to attend Committee on Special Education (CSE) or other school meetings, or meetings at a place where the child is receiving care, regarding the child’s health condition or disability. This section addresses a gray area of FMLA, which was the subject of an August 2019 U.S. Department of Labor Opinion.

This sick leave law also extends paid sick leave to victims of sexual assault, domestic violence, or stalking, who (a) seek medical attention for themselves, their children, parent or spouse; or (b) consult with a victim services organization; or (c) obtain or assist in obtaining psychological or other counsel; or (d) seek relocation; or (e) take legal action, including preparing for or participating in a legal proceeding about the domestic violence, sexual assault or stalking.

Anti-Retaliation Section

Employers should not take any adverse actions against employees for exercising rights to paid sick leave, or they will be violating the Paid Sick Leave Act.

Tax Credits for Employers

There are provisions for potential tax credits for Employers. We will see what the Senate's response is to this proposal.

What is the next step?

The Bill passed the House of Representatives and is headed to the Senate. It is not enacted into law until it is passed by the Senate and signed by the President. At the time this is written, it was a subject of heated debate in the Senate.

© 2020, Law Office of Laura Wong-Pan PLLC All rights reserved

© 2020 by Law Office of Laura Wong-Pan, PLLC. All rights reserved.