On March 12, 2021, and effective immediately, Governor Cuomo signed a new bill requiring employers to provide up to “sufficient time off” for an employee to receive COVID-19 vaccination, up to a maximum of four hours per injection. If an employee must receive multiple injections for the vaccination, the employee is entitled to four hours of vaccine leave for each injection. This leave is only available for employees receiving their own COVID-19 vaccination.

The COVID-19 vaccination leave must be paid at the employee’s regular rate of pay and runs independently of any other leave bank an employee is entitled to (e.g., paid sick leave, vacation, etc.). COVID-19 vaccination leave is available until December 31, 2022.

Employers are prohibited from discriminating or retaliating against employees who take or request COVID-19 vaccination leave. Furthermore, while employers may not require employees to provide advance notice before utilizing leave, an employer may request proof of vaccination. The state also released an FAQ regarding vaccination leave, available here.

Action Items

The New York City Fair Chance Act (FCA) was recently expanded to provide additional protections to applicants and employees with respect to criminal background searches. Currently, the ban-the-box law prohibits criminal history inquiries prior to a conditional offer of employment. The FCA’s protections will now also apply to applicants and employees with pending arrests, and employees with criminal convictions.

Beginning July 1, 2021, HB 2063, the Virginia Overtime Wage Act (VOWA), will create new state overtime wage requirements for employers that differ from the federal Fair Labor Standards Act (FLSA). Although the same basic federal regular rate calculation is adopted into the new state rules for hourly employees, there is a different regular rate calculation for non-exempt salaried employees. Specifically, their regular rate will be calculated as “one-fortieth of all wages paid for that workweek.” This new definition will create additional exposure for employees who are misclassified as overtime exempt, given that the 1.5x overtime rate (rather than a 0.5x rate) will be in addition to the wages already paid. Additionally, the new regular rate is based on a 40-hour workweek, rather than the total hours actually worked as is used under the FLSA.

The following is an example of a nonexempt, salaried employee wage calculation under the new rules:

• $800 weekly salary / 40 hours = $20.00 per hour (regular rate)
• $20 (regular rate) x 1.5 = $30 per hour (overtime rate)
• 10 hrs. overtime x $30 per hour = $300
• $800 weekly salary + $300 overtime = $1,100 gross weekly wages

Further, the statute of limitations for violations of the VOWA is three years, one year longer than the two-year statute of limitations under FLSA. Also, the potential damages have been expanded. Overtime wage violations are subject to double damages, including prejudgment interest, without the availability of a “good faith” defense. For “knowing” violations, employees may be able to recover treble damages.

Action Items

Recently enacted SB 95 relaunched California’s statewide emergency paid sick leave (EPSL). Even though the bill is effective as of March 29^th, it is retroactive back to January 1, 2021. Employers with more than 25 employees are subject to the current rules. Employees (not independent contractors) are eligible for leave if they are unable to work or telework because of one of the following reasons:

The U.S. Department of Labor (DOL) is still working through opinion letters issued during the Trump Administration. Most recently, on February 19, 2021, the DOL withdrew a couple of opinions, including:

• FLSA2019-6 | Further clarification of a “retail or service establishment” for purposes of overtime exemption.
• FLSA2019-10 | Compensability of time spent in a truck’s sleeper berth. Note that to the extent that FLSA2019-10 withdrew prior opinion letters, those letters are reinstated.

Additionally, the DOL recently announced plans to withdraw the Independent Contractor Final Rule, issued by the department on issued on January 7, 2021, because it is not consistent with current case law. It also intends to rescind a current regulation on joint employer relationships under the Fair Labor Standards Act, published in the Federal Register and which took effect on March 16, 2020, in light of current litigation against the rules that vacated most of the regulations.

Action Items