I. The $349 billion allocated to the Paycheck Protection Program Runs Out of Money

The Small Business Administration is already tapped out of emergency loan funds approved last month to help companies stay solvent and avoid having to terminate workers.
https://www.yahoo.com/entertainment/sba-stimulus-loan-program-runs-181843384.html

II. Mandatory Sick Leave

Section 196-b, newly added to the New York Labor Law, mandates that employers, throughout all of New York State, provide their employees with sick leave. The amount of sick leave and whether such leave is compensated depends on both the number of employees and the employer’s revenue. The number of employees in a calendar year is determined by the twelve-month period running from January 1st to December 31st.

Number of Employees in Calendar Year	Sick Time Benefit for Each Calendar Year
4 or less	40 hours unpaid sick leave.
4 or less, with annual net income in excess of $1 million	40 hours paid sick leave.
5 to 99	40 hours paid sick leave.
100 or more	56 hours of paid sick leave

Employees can receive the sick time at the beginning of the calendar year, or it can be accrued throughout the year. However, sick leave must accrue at a rate of at least one (1) hour for every thirty (30) hours worked.

The employees may start to accrue sick time as of September 30, 2020 but the employer does not have to allow the use of such time until January 1, 2021. As of January 1, 2021, employees can use sick leave for the following reasons:

• A mental or physical illness, injury, or health condition of such employee or such employee’ family member (note that the illness, injury or health condition need not have been diagnosed or require medical care at the time the employee requests leave);
• A diagnosis, care, or treatment of a mental or physical illness, injury or health condition or the need for medical diagnosis or preventative care for an employee or employee’s family member;
• An absence from work due to domestic violence, a sexual offense, stalking, or human trafficking, so that the employee may seek services or assistance for themselves or a family member, including from a domestic violence shelter, rape crisis center, or other services program, to meet with a civil attorney or social services provider, to prepare for or participate in a criminal or civil proceeding, to file a complaint or domestic incident report, to meet with the district attorney’s office, to enroll children in a new school, or take other actions necessary to maintain, improve or restore physical, psychological, or economic health or safety of the employee or a family member.

When an employee requests leave, the employer cannot require that the employee disclose confidential information related to any mental or physical illness, injury, or health condition of either the employee or the employee’s family member, or any information related to absences resulting from domestic violence, a sexual offense, stalking, or human trafficking. Employers can set the minimum increment for the use of sick leave, but it cannot exceed four (4) hours.

Any unused sick time at the end of the calendar year shall be carried over to the following calendar year. However, employers are permitted to limit the amount of sick time used in each calendar year to the number of days set forth in this section. For example, if an employee works for an employer with over 100 employees and carries over twenty (20) hours of sick leave to the following calendar year, the employer can require the employee to use only fifty-six (56) hours in that calendar year, not seventy-six (76). Additionally, employers are not required to pay out any unused sick leave when an employee separates from the employer.

Under this section, the employer is required to provide the employee, within three (3) business days of a request, a summary of the amount of sick leave accrued and used by the employee during the current calendar year and/or any prior calendar year. Employers are required to maintain, for a period of at least six (6) years, a record of the amount of sick leave provided to each employee.

III. Prevailing Wage for Employees in Some Private Construction Projects

The 2020-2021 New York State budget further amends the New York Labor Law in adding prevailing wage requirements applicable to construction projects performed under private contract. This section expands the prevailing wage requirements to certain private projects that receive a public subsidy. Pursuant to this section, “covered projects,” defined as “construction work done under contract which is paid for in whole or in part out of public funds . . . when aggregated, is at least thirty percent of the total construction project costs and where such project costs are over five million dollars,” except as provided in section 224-c, are subject to the prevailing wage requirements of section 220 and 220-b.

“Construction” shall mean work, as defined by the public subsidy board (an entity created by section 224-c), to require the payment of prevailing wages and may involve the employment of laborers, workers, or mechanics.

What constitutes “paid for in whole or in part out of public funds” is defined to include (1) the payment of money by a public entity directly to or on behalf of the contractor, subcontractor, developer or owner that is not subject to repayment; (2) savings from fees, rents, interest rates, or other loan costs, or insurance costs that are lower than market rates costs, savings from reduced taxes as a result of tax credits, tax abatements, tax exemptions, or tax increment financing; savings from payments in lieu of taxes; and (3) money loaned by a public entity against repayment obligations on a contingent basis. Even if these requirements are met, there are several types of projects that do not qualify as “covered projects” and are not subject to the prevailing wage requirements.

The owner or developer of the covered project shall certify, under penalty of perjury, within five (5) days of the commencement of construction work, whether the project is subject to these requirements and must retain original payroll records for a period of six (6) years from the conclusion of the work. An owner can authorize the prime contractor to take responsibility for maintaining payroll records, but the two will be jointly and severally liable for any violations.

This requirement currently goes into effect on July 1, 2021, but could be delayed.

IV. Employers must provide face masks to workers.

Governor Cuomo says New York employers must provide face masks to workers. Employers in New York state must now provide protective faces masks for all workers, Gov. The Governor signed an executive order ensuring the move, which follows New Jersey.
https://www.governor.ny.gov/news/amid-ongoing-covid-19-pandemic-governor-cuomo-issues-executive-order-requiring-all-people-new
For all essential businesses or entities, any employees who are present in the workplace shall be provided and shall wear face coverings when in direct contact with customers or members of the public. Businesses must provide, at their expense, such face coverings for their employees. This provision may be enforced by local governments or local law enforcement as if it were an order pursuant to section 12 or 12-b of the Public Health Law. This requirement shall be effective Wednesday, April 15 at 8 p.m.

V. All people in New York must wear a mask or a face covering when out in public and in situations where social distancing cannot be maintained.

Governor Cuomo further issued an Executive Order requiring all people in New York to wear a mask or a face covering when out in public and in situations where social distancing cannot be maintained, such as on public transportation. The Executive Order will go into effect on Friday, April 17th. “any individual who is over age two and able to medically tolerate a face-covering shall be required to cover their nose and mouth with a mask or cloth face-covering when in a public place and unable to maintain, or when not maintaining, social distance.”

The attorneys in Forchelli Deegan Terrana LLP’s Employment & Labor practice group will continue to keep you updated on any changes to your requirements as an employer as updates become available. Should you have any questions, or wish us to assist you with the loan application, do not hesitate to contact me at the below contact information.

Battling the novel coronavirus is difficult for everyone. We are here if you need us. With best wishes for your, and your family’s health and safety.

Gregory S. Lisi, Esq.
Partner-in-Charge, Employment & Labor practice group
GLisi@Forchellilaw.com | 516.248.1700