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BusinessColumnistsCarrie Mason-Draffen

Despite state of emergency, employees expected to show up

New York doesn’t require employers to let workers stay home when an emergency is declared, in most cases.

New York State does not require employers to

New York State does not require employers to let employees stay home during bad weather, even if a state of emergency has been declared by government officials. Photo Credit: Howard Schnapp

DEAR CARRIE: Can my employer refuse to recognize a “state of emergency?” The governor declared a state of emergency for the Jan. 4 blizzard, which was pretty bad. Despite that, supervisors told us that the company doesn’t honor such declarations. In fact, if we call out for any reason, the absence affects our performance appraisals, which determine whether we receive salary increases. But what about company liability if we are ticketed or arrested for being on the road during a state of emergency? Is the company required to assume responsibility? And would our employer be responsible for our hospital bills and other expenses if we are injured in a car crash on our way to or from work during a state of emergency? Those declarations usually say that just essential personnel should be on the road, such as first responders. — Foul-Weather Confusion

DEAR FOUL WEATHER: Your employer has the law on its side, but its explanation to you was wanting. To simply say that one’s company “doesn’t honor such declarations” leaves more questions than answers.

Here’s the legal response.

“Unlike some states, New York does not require employers to let employees stay home during a weather emergency, even when a state of emergency has been declared by government officials,” said employment attorney Richard Kass, a partner at Bond, Schoeneck & King in Manhattan.

But of course there is an exception.

“The one exception is for volunteer emergency responders, such as volunteer firefighters,” he said. “Private-sector employees who have previously identified themselves to their employer as volunteer emergency responders must be given the day off when a state of emergency has been declared, unless the employer can show that that would cause the employer an undue hardship.”

It would seem logical that a state of emergency declaration would mean the equivalent of a snow day for most employees, but that isn’t how it works, especially in the private sector.

“If citizens are ordered not to travel, then a legal argument could be made that employers may not require employees to violate that order,” Kass said. “However, there do not seem to be any reported court cases in New York where that argument has been considered.”

Many companies require employees who miss a day because of bad weather to cover the absence with a vacation or personal day. They don’t typically go as far as your employer and exact retribution on performance appraisals, Kass said.

“It is rare for an employer to hold a weather-related absence against an employee,” he said, “unless that employee already has a poor attendance record for non-weather-related reasons.”

DEAR CARRIE: Can a public- or private-sector employer decide against providing benefits under the New York State Paid Family Leave law, which took effect Jan. 1? — Matter of Choice?

DEAR MATTER: One clarification right off the bat. Employers don’t pay for the leave benefits. Employees pay for them through mandated payroll deductions. With that money, companies buy insurance to cover the benefits, which allow eligible employees to receive some pay when they are out caring for a seriously ill family member or a newborn.

And almost every private-sector employer in New York is covered, even those with as few as one employee. So it’s not up to companies to decide whether to participate.

That said, some jobs are exempt from the law. Exempt jobs include those of teachers and other professionals who work for religious, charitable or educational institutions and disabled employees who work at a sub-minimum wage under an approved Department of Labor program.

Public-sector employees are exempt but can opt in through a collective bargaining agreement. Seasonal and temporary workers who don’t work enough hours or weeks to meet certain thresholds can opt out, meaning they don’t have to pay and don’t get the leave.

The law offers eligible workers eight weeks of leave at 50 percent of their average weekly wage, which is capped at 50 percent of the state average weekly wage.


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