Author: Scott Horton

Scott has been practicing Labor & Employment law in New York for almost 20 years. He has represented over 400 employers and authored 100s of articles and presentations and wrote the book New York Management Law: The Practical Guide to Employment Law for Business Owners and Managers. Nothing on this blog can be considered legal advice. If you want legal advice, you need to retain an attorney.

New York Paid Sick Leave FAQs

New York State Offers Paid Sick Leave FAQs

New York State’s paid sick leave law somewhat quietly went into effect on September 30, 2020. At that time, the NYS Department of Labor had not issued any interpretative guidance for employers. Luckily, no employees are eligible to take leave under the law until January 1, 2021. And now, at least, the DOL has issued paid sick leave FAQs that answer some questions (while perhaps raising others).

Basic NYS Paid Sick Leave Requirements

New York’s 2021 budget legislation included mandatory sick leave for employees throughout the state, except employees of government entities. All private employers with more than 4 employees must provide paid sick leave.

“Small” Employers

Employers with up to 4 employees must provide employees with at least 40 hours of unpaid sick leave each year.

However, employers of this size who had net income over $1 million in the previous tax year must pay employees for this leave.

“Medium” Employers

Employers with between 5 and 99 employees must provide employees with at least 40 hours of paid sick leave each year.

“Large” Employers

Employers with 100+ employees must provide employees with at least 56 hours of paid leave each year.

Accrual

Existing employees began accruing sick leave on September 30, 2020.

Employees accrue leave at a rate of not less than 1 hour per 30 hours worked.

Alternatively, employers can frontload all of the leave at the beginning of the year.

Basis for Leave

Eligible employees may take accrued sick leave for any of these reasons:

  • Mental or physical illness, injury, or health condition of either an employee or an employee’s family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time employee requests leave.
  • Diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of, or need for medical diagnosis of, or preventative care for either the employee or an employee’s family member.
  • Absences related to domestic violence.

Click here for more details on the statutory requirements.

DOL’s Paid Sick Leave FAQs

For the most part, unfortunately, the State FAQs essentially restate the law without clarification or elaboration. Here are some topics of interest that the DOL addresses (or fails to):

Telecommuters

Employees who telecommute are “covered by the law only for the hours when they are physically working in New York State.” This clarification presumably refers to the accrual component, not the taking of accrued leave. Someone who is on sick leave is not “physically working” anywhere.

This nuance should not provide much administrative complexity for employees who live and work entirely in New York State. Arguably they wouldn’t accrue time if they happen to conduct some work outside of the state on an isolated basis (e.g., while on vacation). However, it probably wouldn’t be worth the trouble to carve that work out for sick leave accrual purposes.

On the other hand, employees who work from home outside of New York for a New York-based company apparently don’t accrue sick leave unless they come into the state to work. Such employees would have to work at least 30 hours in New York to accrue their first hour of NYS sick leave.

Finally, there is the case of employees who split their time working inside and outside of New York. This scenario may create the biggest administrative hassle.

Will your company track hours separately based on work location? Or will you just give employees the benefit of the doubt for accrual purposes? How would this affect whether you frontload sick leave at the beginning of the year rather than tracking accrual?

Employer Size

As discussed above, the amount of sick leave employees can take (and whether it’s paid) depends on the size of the employer’s workforce and its net income. The law itself left some gaps in evaluating those factors. The paid sick leave FAQs don’t fill all of them.

One of the FAQs indicates that the employer must count all employees at its New York State locations. So, it’s not a facility-based analysis. But, frankly, that conclusion wasn’t in much doubt based on the law itself.

The FAQs don’t clarify, for example, whether telecommuters who primarily work outside of New York, but occasionally come into a New York office, count.

They also don’t expand on the calculation of “net income.”

Preventative Care

The New York paid sick leave law allows employees to use accrued time for preventative medical care. The FAQ document more specifically acknowledges that leave is available for routine doctor, dentist, and eye doctor appointments.

Safe Leave

The paid sick leave FAQs use the term “safe leave,” which is not found in the law. The DOL uses it to refer to the scenarios where victims of domestic violence can take sick leave.

An FAQ notes that an employee can use “safe leave” even if they have not contacted the police about the alleged perpetrator.

Bereavement Leave

The paid sick leave FAQs explain that bereavement is not a basis for using accrued sick leave.

The New York Legislature tried to create a State bereavement leave law in 2019, but Governor Cuomo vetoed the legislation.

Rate of Pay

When employees use paid sick leave, their employers need only pay their regular rate of pay for the time off. There is no requirement to pay overtime if sick leave occurs when the employee otherwise would have been working overtime.

In addition, employees do not need to make up for lost tips during leave time. However, employers likewise cannot apply a tip credit toward sick leave. Thus, tipped employees must receive sick leave based on the applicable minimum wage if their normal working pay rate is lower.

Employees who receive different rates of pay for different tasks must receive sick leave pay based on the weighted average of their pay rates.

Local Laws

The DOL’s FAQ document specifically mentions local laws in Westchester County and New York City.

Westchester County’s law provides that domestic workers accrue paid sick leave at the rate of one hour for every 7 days worked. An FAQ says that this benefit will remain available to domestic workers in Westchester.

Another FAQ confirms that “New York City may continue to enforce the provisions of the New York City Paid Safe and Sick Leave Law to the extent that such provisions meet or exceed the end standard or requirements for minimum hour and use set forth in the New York State Paid Sick Leave Law, as determined by the Commissioner of Labor.”

Paid Family Leave

An FAQ says that employees can choose to use paid sick leave during New York Paid Family Leave only if their employer allows them to. Doing so may permit an employee to receive their full salary rather than the lesser amount the Paid Family Leave program provides.

Carryover

The FAQs acknowledge that employees may be able to accrue more sick leave than they could take in any calendar year because the law requires employers to permit employees to carry unused time over from one year to the next.

Carrying over time may have no impact where the employer frontloads the full annual allowance at the beginning of the year. But, for employees who must accrue time, it enables them to have time available immediately each year.

Employees also keep all accrued time if they change positions within a company.

Unused Leave

The paid sick leave law does not require employers to pay out unused sick leave upon separation from employment. However, an FAQ cautions that “seasonal employees who maintain an ongoing employment relationship with their employer maintain their leave accruals through such breaks in employment.”

Donating Time

An FAQ allows that employers can permit employees to donate unused sick leave to other employees. However, this must be completely voluntary on the donating employee’s part.

Employers considering this approach should be mindful of potential implications. For example, employers cannot limit any employee’s total sick leave accrual over multiple years. Thus, some employees may have time to donate that they might never be able to use themselves. Plus, employees have different pay rates; therefore, donating time between employees could impact the cost of the sick time to the company.

Notice

The DOL confirms that employees can take sick leave without any particular amount of advance notice, as long as they make an oral or written request before taking leave. And employers may permit an employee to use available leave even if they didn’t notify the employer before taking the time off.

The full paid sick leave FAQs document is available here.

Your Company’s Next Steps

If you haven’t already determined how your company plans to implement the New York paid sick leave law, now is probably the time to act. If you’re not going to frontload sick time in January, then you need to start tracking employee accrual as of September 30, 2020. Regardless, you should review existing leave policies, including vacation and paid-time-off policies, to determine your overall approach to paid leave starting in 2021. Many companies have the option of structuring paid leave such that there is minimal additional labor cost. But this will likely require deliberate steps before the new year begins.

It remains to be seen whether the DOL will fill in more gaps before employees can start taking NYS paid sick leave. If your company falls into coverage gray areas or otherwise can’t determine how the law applies to you, then you should monitor potential further guidance from the State.

Horton Law will continue to track any developments. Sign up for our email newsletter or follow us on LinkedIn to stay updated.

2021 Paid Family Leave

2021 Paid Family Leave in New York

We are now in the third year of New York’s Paid Family Leave Program. It continues to get more costly for employees. But the benefits also get better. Here a primer on New York’s 2021 Paid Family Leave Program.

Employee Contributions

The New York Department of Financial Services (DFS) has announced the maximum employee-contribution rate for 2021. It will increase from 0.270% to  0.511% of the employee’s gross wages, up to an annual maximum. This maximum annual contribution will be $385.34 in 2021 compared to $196.72 in 2020.

The contribution rate increased from 0.153% to 0.270% in 2020. That changed the maximum annual contribution from $107.97 to $196.72. Thus, the maximum annual contribution has nearly doubled since last year and increased overall by 350% in just 3 years.

This means an additional annual cost of up to nearly $300 for many employees from 2018 to 2021. And additional increases remain likely each year.

2021 Paid Family Leave Benefits

But it’s not all bad news for workers. DFS also confirmed that the weekly paid family leave benefit will increase again in 2021. The weekly benefit rate increases from 60% of the employee’s average weekly wage to 67%. This percentage only applies up to the first $1,450.17 of weekly earnings. An employee who earns more than that can only receive $971.61 per week in paid family leave benefits.

The maximum leave allowance also increases from 10 weeks in 2019-2020 to 12 weeks in 2021. That is the last scheduled increase in the length of the paid leave allowance, which began at 8 weeks in 2018.

Preparing for 2021

Companies should confirm their 2021 paid family leave premiums with their insurance carriers. Then make sure that next year’s payroll will include the correct contribution rates.

If your paid family leave policy reflected specific rates for paid family leave in 2020 (or earlier), then you might want to update that component.

This is also an excellent opportunity for employers to review which employees are eligible to opt out of the paid family leave program. Employers must offer qualifying employees the chance to waive coverage (and corresponding paycheck deductions). However, the waiver automatically expires if the employee later becomes eligible for paid family leave.

Finally, employers might find that these changes coupled with unique COVID-19 issues increase the utilization of paid family leave in 2021. First, the benefits are higher and last longer, making it more financially viable for employees to take time off from work. Plus, since employees have to pay more for the program, they might feel even more entitled to use it. These factors might require employers to replace more worker hours next year or otherwise allow for lost productivity.

 

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Opioid Addiction

EEOC Issues New Guidance on Opioid Addiction

On August 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued technical guidance on opioid addiction and employment. Workforce substance abuse is on the rise and can cause many expensive problems for businesses and industries. These problems can range from a loss of productivity, injuries, disruption of operations, and increased health insurance claims. While employers may prohibit the illegal use of drugs and alcohol at the workplace, they may not discriminate against a person based on drug addiction or alcoholism.

Americans with Disabilities Act

The Americans with Disabilities Act of 1990 (ADA) prohibits disability discrimination in areas including employment, transportation, and public services. Title 1 of the ADA focuses on the workplace and requires employers to make reasonable accommodations for employees with disabilities. The EEOC has enforcement responsibility for Title 1 of the ADA.

The ADA does not protect an employee or job applicant who is “currently engaging” in the illegal use of drugs. However, it does extend protections to employees who:

  • who have been successfully rehabilitated and who are no longer engaged in the illegal use of drugs;
  • are currently participating in a rehabilitation program and are no longer engaging in the illegal use of drugs; and
  • are regarded, erroneously, as illegally using drugs.

EEOC Technical Documents on Opioid Addiction

Two new technical documents from the EEOC intend to provide clarity to existing requirements under the ADA.

The EEOC notes that this guidance “is not a new policy,” but instead explains existing principles.

“Use of Codeine, Oxycodone, and Other Opioids: Information for Employees”

This guidance document explains that those using prescription opioids, addicted to opioids, or who were addicted to opioids in the past may have the right to reasonable accommodations. The EEOC states that employers can’t fire a worker who lawfully uses opioids unless the employer first considers whether there is a way for them to perform their duties safely. The guidance defines “opioids” to include prescription drugs such as codeine, morphine, oxycodone, hydrocodone, and meperidine and illegal drugs like heroin.

Click here to access “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees.”

Disqualification from a Job

The legal use of an opioid seldom automatically disqualifies an employee for a job. Conversely, employers can fire (or not hire) employees for illegally using opioids, even if there aren’t any safety or performance concerns.

In the case of legal opioid use by prescription, the employer must first consider whether the employee can do the job safely and effectively.

Reasonable Accommodations

Employers must provide reasonable accommodations to a job applicant or an employee who needs them because of a medical condition that qualifies as a disability under the ADA unless it would impose an undue hardship on the employer. Reasonable accommodations can include a change in the way things are generally done at work, including different breaks or work schedule, a change in shift assignments, and temporary transfers.

Employers may need to accommodate employees’ opioid use when the employee:

  • takes prescription opioids to treat pain;
  • is recovering from opioid addiction; or
  • has a medical condition related to an opioid condition.

Employees may request a reasonable accommodation from their employer at any time. In evaluating the accommodation request, an employer must engage in an “interactive process” with the employee. In some cases, the employer may ask the employee to submit medical documentation to support their request. An employer does not have to provide the accommodation requested if an alternative accommodation would also enable the employee to perform the essential functions of the job.

For more on reasonable accommodations, click here.

Sick Leave for Treatment or Recovery

When an employee requests to take a leave for treatment or recovery, an employer may be required to allow the individual to use accrued paid leave or permit the employee to take time off without pay if no qualifying paid leave is available.

Drug Testing

This EEOC guidance document emphasizes that if a business has a drug-testing program, employers should give any applicant or employee a chance to provide information about lawful drug usage.

“How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed”

This guidance document lays out the legal road map for healthcare providers. The guidance begins by describing workers’ ADA rights and the process of reasonable accommodations for disabilities. Then the guidance offers medical professionals tips on how to write and provide employers with medical documentation about a person’s condition.

When a patient asks for a reasonable accommodation, the employer may ask for medical documentation of the employee’s disability. This EEOC guidance on opioid addiction suggests that medical providers might include the

  • Medical professional’s qualifications and the nature and length of the relationship with the patient;
  • Nature of the patient’s medical condition;
  • Patient’s functional limitations in the absence of treatment;
  • Need for a reasonable accommodation; and
  • Suggested accommodations.

Click here to access “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed.”

Review Your Company Policies and Procedures

Not everyone understands the implications of disability discrimination laws related to opioid addiction. Employers should take this opportunity to review their policies and procedures related to employee drug use. Additional training for managers can also help avoid inadvertent violations of the ADA.