New York State has adopted Sick Leave requirements for employers to follow under NY Labor Law § 196-b. With the new rule having become effective on 12/22/21, employers and their HR teams need to get up to speed quickly. 

The new rule requires employers of 3 different categorical sizes to provide a minimum number of paid sick leave hours for employees depending on the size of the employer and its net income. 

The rule does the following:

• Establishes standards of how employees shall accrue sick leave at a rate of no less than 1 hour per every 30 hours worked; 
• Protects employees from having to disclose confidential health information to employers as a condition to taking sick leave; 
• Sets up conditions for employees carrying over unused sick leave over to the following calendar year; 
• Creates protections to prevent employers from retaliating/discriminating against employees for exercising his/her sick leave rights; 
• Requires employers to provide written records of sick leave accrual upon employee request; 
• Requires that employees returning from sick leave be restored to their position prior to the sick leave with the same pay & other terms / conditions of employment; & 
• Allows for collective bargaining agreements to be entered into that provides for paid sick leave. 

Before the rule became effective, employers commented and expressed their concerns, under the regulatory process, and the government's responses have clarified the following facts:

• Newer employees will abuse sick leave because the rules allow employees to immediately use sick leave upon accrual; 
• Carrying over unused sick leave days to following years is problematic (per DOL, employers may either: (1) give employees the option to voluntarily elect to use & receive payment for paid sick leave prior to the end of a calendar year or carry over unused sick leave; or (2) only allow employees to carry over unused sick leave);
• Conflicts can arise between sick leave requirements and other leave policies if not clarified in the employer's policy manual;
• Employee abuse systems need to be in place within an employer's policy manual or issues will arise; and
• Collective bargaining agreements need to be addressed to comply with the new rule.

This new sick leave rule will continue to raise concerns by employers and employees, but proactive employees with great policy manuals / collective bargaining agreements, which have been updated to reflect the new rule will win the day. Otherwise, there are going to be a lot of discrimination and retaliation claims when sick leave issues arise. 

Governor Hochul signed Bill A07373 into law yesterday which permits employees to petition their employer (in writing, within ten (10) days after a layoff, or in advance of a layoff) to implement a "Shared Work" program in lieu of a layoff. While employers are not required to implement a Shared Work program, employers must respond to the employees' petition in writing within seven (7) days and may not discriminate or retaliate against any employees who bring a petition.

The Shared Work program was formed to assist employers in avoiding layoffs and maintain trained workers during an economic downturn by allowing employees to receive partial unemployment benefits while working reduced hours. 

Generally, homeowners are exempt from liability for construction-related injuries that happen in their home. 

However, homeowners become liable if they direct or control the method and manner of work. 

What does that rule mean to you?

The Appellate Courts, in O'Mara v. Ranalli, just taught us that it is a jury question where there is evidence that the homeowner did the following acts:

• Supplied the ladders used by the contractors;
• Being on site and giving direction nearly every day; and 
• Deciding not to permit the installation of stairs from the basement to the first floor in the face of the contractor insisting that it was needed for safer and easier access to the first floor.

Typically, when a construction worker gets injured on the job from an elevated fall, it's a slam dunk case against the GC. 

In fact, Labor Law § 240(1) imposes strict or absolute liability on general contractors, owners, and their agents regardless if the injured worker is partially at fault for falls at construction sites. 

The only real defense for the GC is that the injured worker was the sole proximate cause of the accident (called the, "recalcitrant worker" defense). But, how do you prove sole cause when everyone claims different facts? 

We just learned the answer in an appellate division case, Cordova v 653 Eleventh Ave. LLC.

The case was dismissed because "Surveillance footage of plaintiff falling from the ladder demonstrates that" it was solely the injured worker's fault. The ladder didn't move or shake, it was connected to the sidewalk bridge and scaffolding above and tied to the scaffold too. 

Moving forward, GCs should video your construction sites. It can save you a fortune. 

the videos alone are NOT considered interactive. If you are using this video to meet the training requirements, you must also: ask questions of employees as part of the program; accommodate questions asked by employees, with answers provided in a timely manner; or require feedback from employees about the training and the materials presented.