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    • New York Releases Guidance Related to New Paid Sick Leave Law

      New York State has created a website and issued FAQs to assist NY employers and employees in the implementation and usage of its new paid sick leave law. As we’ve previously discussed, this new law applies to almost all private employers in the state. More FAQs are expected as some questions remain regarding the new law. Sick leave balances may be accrued or frontloaded, and for now, it appears employers may use a hybrid method depending on the situation. Of course, any employer choosing to go with a hybrid method must ensure there is no discriminatory intent or impact in its implementation. The guidance states that if an employer’s existing policies meet or exceed the requirements in the new law, including carryover and use requirements, then the employer need not change its policies. Specifically, it states, “the law does not present any further obligations on that employer.” It appears for now that if an employer provides more than required under the law, the employee will not be limited as far as its usage. In other words, the employer will not have to require that the employee “save” time to be used solely as sick time. We will update our blog if the proposed regulations indicate otherwise. For now, we recommend that whenever possible, an employer that decides to maintain a PTO style time off policy make best efforts to track whether time off is taken for sick time until New York State provides more clarity on this issue. This is also important to ensure an employer is complying with the law’s sick leave carryover requirements. Employees may request a summary of their sick time accrued and used in a current or past calendar year, and employers have three days to comply. Tread carefully, however. The new paid sick leave law provides that sick time can be used to due to the employee’s sickness or to care for a family member (and the definition provided is quite broad), but that the employer cannot demand confidential health information to verify the need to take sick leave. More FAQs are expected in the near future. In addition, proposed regulations should soon be released. There will be a comment period during which the public can voice any concerns about particular aspects of the proposed regulations. We will post a link to those proposed regulations when they become available. The guidance available thus far can be found here. If you have any questions regarding the issues discussed above or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Alina Nadir, the author of this piece, here or at (585) 258-2805.

    • NYS Election Law Amends Voting Leave Law Again, Reverting to Two-Hour Paid Time Off Requirement

      In 2019, the New York fiscal budget amended New York Election Law Section 3-110 to, among other things, allow workers to take up to three hours off work, without loss of pay, in order to vote in any election. Paul Keneally wrote about this amendment after it was announced in May 2019. You can read that post here: Employee Paid Time Off to Vote Law Changes in New York. In 2020, New York State budget legislation for the 2020-2021 fiscal year included an amendment to Section 3-110 that reverts back to the pre-2019 voter leave requirements. Effective April 3, 2020, employees are entitled to up to two-hours of paid time off, but only if the employee did not have “sufficient time” to vote. An employee is considered to have sufficient time to vote if that employee has four consecutive hours to vote either from the opening of the polls to the beginning of their work shift, or four consecutive hours between the end of a working shift and the closing of the polls. Employees also need to request the voting leave at least two business days prior to the election. Employers cannot require eligible employees to use other forms of earned leave time, such as accrued paid time off, to vote. Additionally, employers must post the new requirements in a noticeable place at least ten working days prior to an election and leave the notice up through at least the close of the polls. Employers should also update their employee handbooks accordingly. If you have any questions regarding the issues discussed above or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Stephanie Hoffmann, the author of this piece, here or at (585) 258-2814.

    • Energy Policy and the Fracking Battle in the November Election

      This article was published in The Daily Record on October 19, 2020 - Download the Reprint With the Presidential election less than three weeks out and the pandemic hitting the State, questions about energy policy and fracking are popping up in various ways. Although it has been a few years since this column has addressed fracking or hydraulic fracturing in New York, a means of oil and natural gas development, the practice has been widely used in other states. Notably, our neighbor Pennsylvania has tapped into the Marcellus Shale formation to produce natural gas and create thousands of industry jobs, spin-off industry and economic activity. The fracking boom has also benefitted Ohio, West Virginia and midwestern states like the Dakotas. Hydraulic fracturing is a method of obtaining oil and natural gas from shale rock in which drillers bore deep wells to reach the shale and then directionally drill laterally to open veins of shale containing the resources. After drilling, well production crews inject water and sand mixtures to create fractures in the shale formations. Fracking has raised concerns based on the chemicals used in the well development process, as well as the large quantities of fracking water that needs to be recycled from the process. The potential for spills, discharges or improper recycling has raised concerns from various opponents of the practice. In simple economic terms, fracking has lead to a boom in oil and natural gas development in the last decade or so, to the extent that the United States has become the largest oil and gas producer in the world. This has lead to record low energy prices and the ability for the country to export rather than import resources. A recent Wall Street Journal article notes that since 2018 nearly 90% of the oil and gas drilling projects have been horizontal drilling to support fracking, rather than traditional vertical drilling. Hence, any significant change to fracking regulation will dramatically impact energy development and access to oil and natural gas. New York effectively shut down fracking in the State based on NYS Department of Environmental Conservation environmental impact review in 2015. The economic impacts are still being felt. Pennsylvania’s Marcellus Shale natural gas development has virtually exploded from around 3 trillion cubic feet in 2013 to 6.2 trillion cubic feet in 2018. As a result, our neighbor state produces about one-fifth of the nation’s natural gas and has seen substantial new economic development, as well as well-head impact fees which benefit local communities. In contrast, according to an Institute for Energy Research report New York produces less than one percent of the natural gas that it consumes forcing the import of the majority of the gas for consumption. Since the State cut off hydraulic fracturing in the Marcellus it eliminated access to 12 million acres of natural gas resources. Consequently, according to an Energy Information Administration review of New York natural gas consumption, in 2018 of $10.77 billion in gas purchased, $10.67 billion was imported from outside the State. The 2020 COVID-19 pandemic has dramatically impacted the State budget and lead to an estimated $14 billion budget gap. Although circumstances would seem to call for an evaluation of all potential economic development and revenue sources, that has not been the case. As part of the 2021 NYS Budget Governor Cuomo included legislation which permanently banned fracking. The Governor’s press release suggested that since banning fracking in 2015 areas of the Southern Tier, where the Marcellus Shale would have been developed, have instead experienced a clean energy boom of some 4,100 jobs since 2017. Unfortunately, this strict adherence to a clean energy agenda in Albany ignores the fact that New York sends billions out of the State to purchase natural gas that is accessible within its own boundaries. Further, the fracking ban prevents the development of industry and spinoff jobs, support services and local economic development across much of New York. On the national level, fracking has been mentioned numerous times on the Presidential campaign trail and at debates. The Trump administration has implemented a market-based approach to energy policy, encouraging sound development of energy resources across the country. The expansion of United States oil and natural gas resources has lead to a boom in the industry, job growth and reduction in energy prices. The President has also pointed to a substantial decrease in oil and gas imports as a key means to strengthen the economy and maintain independence from foreign sources. Hence, the Trump Administration does not support a ban on fracking to obtain oil and natural gas resources. Vice-President Biden has been a bit more nuanced in his position on fracking and energy development. In general, his campaign position has called for a limited ban on fracking, on federally controlled lands, suggesting this is an initial step to reduce production and address climate change concerns. Further, while on the campaign trail in Pennsylvania in recent weeks, he has argued that he will not ban fracking. While a political season certainly brings campaigns to take liberties with positions, this recent position seems to be at odds with his policy and prior statements. The Biden campaign website states that “the Green New Deal is a crucial framework for meeting the climate challenges we face.” Among other things, the Biden plan intends to “[e]nsure that the US achieves a 100% clean energy economy and reaches net-zero emissions no later than 2050.” Further, when pressed on the issue of fracking in a March 2020 Democratic Presidential candidate debate, Vice-President Biden agreed with Senator Bernie Sanders opposition to fracking, saying “[n]o more, no new fracking.” If Vice-President Biden wins the election in November and proceeds to implement his energy plan, along the lines of the Green New Deal, it has the potential to dramatically impact the nation’s energy landscape. First, due to the overwhelming percentage of hydraulic fracturing wells developed a ban on the practice would effectively shutter the oil and natural gas industry. This would cause a significant loss of industry jobs, ancillary support services and jobs, as well as local development supporting the fracking process. In addition, regardless of the intent to transition to a fossil-fuel free energy plan in the long-term, in the near term it would naturally cause the country to shift to other sources of oil and natural gas, likely from other nations. This would cause consumers to bear higher energy prices as well as the risk of market sources outside of the country. Regardless of one’s perspective on the Presidential candidates, the policy choices on energy use and development are in stark contrast. While President Trump is interested in maintaining fracking for oil and natural gas, Vice-President Biden is likely to restrict the practice in significant ways. With one debate left, perhaps the moderator can ask substantive questions so voters can get a clear understanding of the differences that exist in this critical energy area. For additional information about the issues discussed above, or if you have any other Environmental Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or George S. Van Nest, the author of this piece, here or at (716) 847-9105.

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