On April 9, 2022, Governor Kathy Hochul signed the State’s fiscal year 2022-2023 budget bill into law. A copy of the budget bill can be found here.
As part of the budget bill, the Social Services Law was amended to add new Section 367-w, which provides for bonuses to be paid to certain healthcare and mental hygiene workers. A copy of New York State Social Services Law Section 367-w (“Section 367-w”) can be found here. The purpose of the bonuses is to recruit and retain healthcare and mental hygiene workers, as well as to reward them for their service during the pandemic. In order to be eligible for the bonus, an employee must work for a covered employer in a covered title and earn a base yearly salary of $125,000 or less, not including bonuses or overtime pay, during a designated “vesting” period. For the purposes of Section 367-w, an “employee” includes individuals employed on a full-time or part-time basis, employed on a salaried, hourly or temporary basis, and, significantly, individuals working as independent contractors.
Pursuant to Section 367-w, covered employers include, but are not limited to, school districts, BOCES, public or nonpublic schools, charter schools and approved preschool programs for students with disabilities.
Employees in the following titles may be eligible for the bonus:
“Physician assistants, dental hygienists, dental assistants, psychiatric aides, pharmacists, pharmacy technicians, physical therapists, physical therapy assistants, physical therapy aides, occupational therapists, occupational therapy assistants, occupational therapy aides, speech-language pathologists, respiratory therapists, exercise physiologists, recreational therapists, all other therapists, orthotists, prosthetists, clinical laboratory technologists and technicians, diagnostic medical sonographers, nuclear medicine technologists, radiologic technologists, magnetic resonance imaging technologists, ophthalmic medical technicians, radiation therapists, dietetic technicians, cardio-vascular technologists and technicians, certified first responders, emergency medical technicians, advanced emergency medical technicians, paramedics, surgical technologists, all other health technologists and technicians, orderlies, medical assistants, phlebotomists, all other health care support workers, nurse anesthetists, nurse midwives, nurse practitioners, registered nurses, nursing assistants, and licensed practical and licensed vocational nurses.”
In addition to the above, Section 367-w lists a number of other titles that are eligible for the bonus, provided the employees in such titles perform certain functions for the State. Counselors, psychologists, and social workers are among these titles. However, additional guidance is needed to clarify whether school counselors, school psychologists and school social workers are eligible for the bonus payments. In addition to the above, additional titles may be added by the Commissioner of Health, or relevant agency commissioner as applicable, and approved by the director of the budget.
An employee’s eligibility for the bonus will be based upon the number of hours worked per “vesting period,” which are six (6) month periods of time between October 1, 2021, and March 31, 2024, to be determined by the Commissioner of Health. Employees are eligible to receive bonuses for no more than two (2) vesting periods per employer, with a maximum of $1,500 per “vesting period” (for a maximum total bonus of $3,000 per employee across all employers). Employees who are continuously employed and work an average of at least 20 but less than 30 hours per week during a vesting period will be entitled to a $500 bonus, employees who are continuously employed and work an average of at least 30 but less than 35 hours per week during a vesting period will be entitled to a $1,000 bonus, and employees who are continuously employed and work an average of at least 35 hours per week during a vesting period will be entitled to a $1,500 bonus. Notably, the use of leave time, including unpaid leave under the Family and Medical Leave Act, counts towards calculating an employee’s average hours worked during a vesting period. Moreover, full-time employees who are exempt from overtime under New York State Law or Regulation during a vesting period (and therefore presumably do not have the number of hours they worked tracked) will be entitled to a $1,500 bonus per vesting period.
Employers are responsible for tracking employees’ hours to determine eligibility for the bonuses, as well as for submitting claims to the State for the bonus payments. Employers must submit claims for the bonus payments within thirty (30) days of an employee’s eligibility for a bonus vesting under the State’s schedule and must provide payment to the employee within thirty (30) days of receiving the bonus payment from the State. Employers must maintain contemporaneous records of all tracking and claims-related information and documents required to substantiate any claims for bonus payments for at least six (6) years and provide these records upon request to the State or relevant federal agency. The State will determine and publish the dates of the vesting periods and well as develop and issue forms and procedures for employers to use to identify the number of hours employees worked during each vesting period and to use to submit claims for the bonus payments for eligible employees. As of the date of this memorandum, the State has not yet established the vesting periods or published such forms or procedures. Keane & Beane, P.C., will update our clients once the State publishes the vesting periods and the forms and procedures to track employee work hours and bonus eligibility. Bonus payments are to begin in the State’s 2023 fiscal year.
Consult Counsel Regarding Specific Questions
If you have any questions or concerns regarding the bonuses, this Legal Alert or require further assistance with this topic, please contact one of our Education Law Attorneys.
 However, Section 367-w further provides that the payment is conditioned upon the employee not terminating, through action or inaction, the employment relationship with the employer, in accordance with any employment agreement, including a collectively bargained agreement, if any, between the employee and employer, prior to the date the bonus payment is scheduled to be made.
 Covered employers also include: counties; cities; towns; villages; institutions of higher learning; programs funded by the Office of Mental Health, the Office of Addiction Services and Supports, the Office for People with Developmental Disabilities, the Office for the Aging; county health districts; part-county health districts; cities, towns, villages and consolidated health districts with separate boards of health; and certain providers that participate in the Medicaid program.