New York State laws amended to provide time off with pay to receive COVID 19 vaccination for employees in public sector and in the private sector

With respect to employees in the public sector,* New York State's Civil Service has been amended by adding a new section, §159-c, to read as follows: 

§159-c. Leave time for COVID-19 vaccination. 1. Every public officer,  employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee  of any municipality, employee of any school district or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New Yorkstate teachers' retirement system shall be entitled to absent himself or herself and shall be deemed to have a paid leave of absence from his or her duties or service for a sufficient period of time, not to exceed four hours per vaccine injection, unless such officer or employee shall receive a greater number of hours pursuant to a collectively bargained agreement or as otherwise authorized by the employer, to be vaccinated for COVID-19.

2. The entire period of the leave of absence granted pursuant to this  section shall be excused leave and shall not be charged against any other leave such public officer or employee is otherwise entitled to.

3. Nothing in this section shall be deemed to impede, infringe, diminish or impair the rights of a public employee or employer under any law, rule, regulation or collectively negotiated agreement, or the rights and benefits which accrue to employees through collective bargaining agreements, or otherwise diminish the integrity of the existing collective bargaining agreement.

With respect to employees in the private sector, New York State's Labor Law has been amended by adding a new §196-c to read as follows:

§196-c. Leave time for COVID-19 vaccination. 1. Every employee shall be provided a paid leave of absence from his or her employer for a sufficient period of time, not to exceed four hours per vaccine injection, unless such employee shall receive a greater number of hours pursuant to a collectively bargained agreement or as otherwise authorized by the employer, to be vaccinated for COVID-19.

2. The entire period of the leave of absence granted pursuant to this section shall be provided at the employee's regular rate of pay and shall not be charged against any other leave such employee is otherwise entitled to, including sick leave pursuant to section one hundred ninety-six-b of this article, or any leave provided pursuant to a collective bargaining agreement.

3. The provisions of this section may be waived by a collective bargaining agreement, provided that for such waiver to be valid, it shall explicitly reference this section of law.

*  See also Chapter 78 of the Laws of 2021 establishing a Coronavirus Disease 2019 [COVID-19] public employee death benefit for individuals who reported to their usual place of employment or an alternate worksite at the direction of their employer on or after March 1, 2020 and such individual contracted COVID-19 within 45 days of reporting to such workplace as confirmed by a laboratory test or by a licensed physician and such individual died on or before December 31, 2022.

Both Chapter 77 and 78 are now in effect and will be "deemed repealed" effective December 31, 2022.

 

An employee's suspension with pay pending disciplinary action may not constitute work for the purposes of qualifyiing for unemployment insurance benefits

§75.3 of the Civil Service Law, and some collective bargaining agreements, authorize the suspension of an employee with pay pending the hearing and determination of disciplinary charges filed against the employee alleging incompetency or misconduct. 

An employee [Claimant] was served with disciplinary charges and was suspended without pay from her employment for several 30-day periods. As relevant here, Claimant filed an original claim for unemployment insurance benefits effective January 15, 2018 and received benefits. The employer [Employer] then suspended Claimant with pay effective January 30, 2018, and Claimant did no further work for the Employer before being terminated from her employment effective January 25, 2019. Claimant then filed a subsequent claim for unemployment insurance benefits effective January 28, 2019. 

A Workers' Compensation Administrative Law Judge [ALJ] sustained the Department of Labor's administrative determination that Claimant was ineligible to receive further unemployment insurance benefits. The ALJ, in essence, held that a suspended employee is not performing any "work in employment" for which he or she could receive remuneration as required by §527[6] (emphasis supplied in Appellate Division's decision). 

Claimant appealed the ALJ's ruling to the Unemployment Insurance Appeal Board [Board]. The Board, sustaining the ALJ's determination, concluded that Claimant "had insufficient wages to meet the work requirements to re-qualify for a subsequent original claim and had not worked in employment and been paid remuneration for such work equal to at least 10 times [her] weekly benefit rate."

The Board had rejected Claimant contention that such monies did "constitute remuneration for work ... so as to count toward her eligibility to file a subsequent claim", citing the Board's decision set out in Matter of Appeal Board No. 569753* in support of her claim. Claimant appealed. 

Noting that Claimant performed no work for the Employer during the relevant period, the court said the question to be resolved is whether "the monies she received while suspended [with pay] constituted remuneration for work in employment so as to count toward her eligibility to file a subsequent valid original claim."

The Appellate Division then affirmed the Board's determination, explaining that to file a subsequent valid original claim, the applicant "must have worked in employment and been paid remuneration for such work since the beginning of such previous claim in an amount equal to at least [10] times the claimant's weekly benefit rate," citing Labor Law §527[6].**

The Appellate Division observed that the Board had adopted the decision of the ALJ, rejecting Claimant's argument that its decision in Appeal Board No. 569753 controlled, and opined that it perceived "nothing unreasonable in that distinction, which comports with the statutory language, and therefore [found] substantial evidence in the record to support the Board's determination that [Claimant] had not 'worked in employment and been paid remuneration for such work' in a sufficient amount to file a subsequent valid original claim."

* Claimant had relied upon Appeal Board No. 569753 in advancing her appeal to the Board, pointing out that in Board No. 569753 the Board held that an individual serving a paid suspension under the terms of a collective bargaining agreement was performing a service so as to fall within the statutory definition of employment. See https://uiappeals.ny.gov/system/files/documents/569753-appeal-decision.pdf.

** §527[6] of the Labor Law provides as follow: "Work requirement. An individual who has filed a previous valid original claim pursuant to this section must have worked in employment and been paid remuneration for such work since the beginning of such previous claim in an amount equal to at least ten times the claimant's weekly benefit rate in order to be able to file a subsequent valid original claim.

Click HEREto access the text of the Appellate Division's ruling.

 

Special Military Benefits and Post-Discharge Benefits available to employees of New York State as the employer through December 31, 2021

The Governor's Office of Employee Relations has signed Memoranda of Understanding with the Civil Service Employees Association, Council 82, District Council 37, NYS Correctional Officers and Police Benevolent Association, Police Benevolent Association of New York State, Graduate Students Employee Union, Public Employees Federation, and United University Professions, extending current special military benefits for service in connection with the war on terror, and certain benefits in connection with return from military duty for duty related to the war on terror that exceeds 180 days' duration through December 31, 2021. 

The same benefits provided in these MOUs are extended to State personnel designated Managerial or Confidential employees for the purposes of Article 14 of the Civil Service Law [the Taylor Law].

Provisions of the MOUs are not grievable.

The existing special military benefits extended under these MOUs are administered in accordance with previously issued memoranda.

New York State Departments and Agencies should consult the following memoranda to ensure proper administration of these benefits:

GIB 2001-04	Special Military Benefits for State Employees Activated in Connection with the Events of September 11, 2001
AM 2001-06	Special Military Leave for Employees Activated in Connection with the Events of September 11, 2001
AM 2002-01	Frequently Asked Questions about Special Military Leave in Connection with the Events of September 11th
AM 2002-03	Training Leave at Reduced Pay for Military Duty Not Related to the Events of September 11th and Extension of Special Military Leave in Connection With the Events of September 11th
AM 2004-01	Clarification of Special Military Leave Benefits
AM 2007-01	Memoranda of Understanding on Extension of Special Military Benefits and New Post-Discharge Benefits

Questions concerning these benefits should be directed to the Attendance and Leave Unit of the New York State Department of Civil Service [(518) 457-2295].

 

Taxable Fringe Benefit Essentials - A Webinar for Government and Tax Exmpt Employers

The Tax Exempt and Government Entities Division of the Internal Revenue Service [IRS] is hosting a free Webinar titled Taxable Fringe Benefit Essentials for Employerson April 14, 2021 at 1:00 p.m. (ET).  

This Webinar will cover the most common fringe benefits and explain if those fringe benefits are taxable.

Officers and employee of government and tax exempt entities and other interested parties may enroll to watch this free Webinar that is designed to explain what a fringe benefit is and how to value a fringe benefit by clicking here to register .

Additional information is available at Webinars for Tax Exempt & Government Entities. 

 

 

 

Providing electronic records in response to Freedom of Information Law requests

In this proceeding pursuant to CPLR Article 78 to compel the production of certain documents pursuant to the Freedom of Information Law [FOIL]* sought by the Petitioner [Plaintiff], the Appellate Division explained:

1. As a general rule, a governmental entity [Agency] responding to a FOIL request is not required to create any new record or data that is not already possessed and maintained by it as such.

2. Pursuant to Public Officers Law §89[3][a], some information maintained in an electronic format may be retrieved, compiled, and disclosed if doing so requires only a "reasonable effort".

Here, said the court, the Records Access Officer [Custodian] of the records in question stated that he lacked the technical sophistication to manually transfer the email addresses onto an Excel spreadsheet in order to provide an electronically formatted response to the Plaintiff's FOIL request.

However, the Appellate Division said Custodian did not address whether any other employee of the Agency could, with a reasonable degree of time and effort, create "an Excel spreadsheet" that would comply with the terms of Plaintiff's FOIL request. Citing Data Tree, LLC v Romaine, 9 NY3d at 466, the court opined that "[i]t cannot be said, therefore, that the [Plaintiff's] amended petition fails to state a cause of action, as it presents a question of fact as to whether reasonable efforts by [the Agency's] employees could be undertaken to provide an electronically formatted response."

The Appellate Division also noted that Supreme Court should not have granted that portion of the Agency's motion to dismiss that part of the Plaintiff's amended petition alleging FOIL violations pertaining to the Petitioner's request for a copy of the Custodian's email and its recipient list. The amended petition, said the court,  described a portion of the email as being defamatory toward Plaintiff.

Addressing the alleged "defamation," the court indicated that in an electronic response by the Agency's attorney [Counsel], the Petitioner was told that the Custodian was not required to respond to "factual characterizations and legal conclusions," which might be a cryptic reference to any potential allegation that the Custodian's email at issue was defamatory. However, said the court, Counsel stopped short of addressing whether the email and its recipient list would or would not be provided by the Agency and the Agency gave no further response related to this request.

Finally, as the Agency did not advise Petitioner of the availability of an administrative appeal as required by 21 NYCRR 1401.7(b), the Appellate Division said that the Supreme Court erred in concluding that the Petitioner's administrative appeal was time barred. Accordingly, the Appellate Division concluded that Supreme Court should not have granted that branch of the Agency's motion which was to dismiss so much of the amended petition as related to that FOIL request and remitted the matter  to Supreme Court "for a determination on the merits after the Agency serve and file their answer and, if necessary, complete the administrative record."

* Public Officers Law Article 6.

Click HERE to access the text of the Appellate Division's decision.