Tag: domestic violence leave

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.

New York Paid Sick Leave Law

New York Paid Sick Leave Law Applies to All Private Employers

On April 3, 2020, Governor Andrew Cuomo signed 2021 budget legislation that included sick leave for employees throughout New York. In addition to illnesses and injuries, the leave is available for circumstances related to domestic violence. Employees begin accruing sick leave on September 30, 2020, and may use it starting January 1, 2021. New York paid sick leave benefits vary based on the size of the employer.

The law only applies to private (non-governmental) employers. New York public entities, such as municipalities and school districts, are not covered.

Leave Requirements Depend on Business Size

“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.

Sick Leave Accrual

Employees are eligible to accrue sick leave at a rate of not less than 1 hour per 30 hours worked. Employees begin accruing Sick Leave on September 30, 2020, or upon hire after that.

Employers can provide all of the leave at the beginning of the year if they prefer.

When Can Employees Take New York Paid Sick 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, as described below.

Absences Related to Domestic Violence

If an employee or an employee’s family member is a victim of either domestic violence, a family offense, sexual offense, stalking, or human trafficking, the employee may use available New York sick leave for time off to:

  • Obtain services from a domestic violence shelter, rape crisis center, or other services program;
  • Participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or their family members;
  • Meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding;
  • File a complaint or domestic incident report with law enforcement;
  • Meet with the district attorney’s office;
  • Enroll children in a new school; or
  • Take any other actions necessary to ensure the health or safety of the employee or a family member or to protect those who associate or work with the employee.

Covered Family Members

Employers must use the following definitions to determine an employee’s eligibility for New York paid sick leave.

“Family Member” includes the employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent. It also includes a child or parent of an employee’s spouse or domestic partner.

“Parent” means a biological, foster, step- or adoptive parent, or a legal guardian of an employee, or a person who stood in a legal parental role when the employee was a minor.

“Child” means the biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.

Calculating the Number of Employees to Determine Leave Allowance

The law instructs employers to use the number of employees who are employed by the company in the calendar year between January 1 and December 31 to determine how much leave they must provide to employees. This calculation is likely to confuse employers because total headcount typically varies throughout any one calendar year due to business needs, employer terminations, and voluntary resignations. Therefore, we anticipate that Department of Labor regulations will later clarify how an employer should calculate its size.

Employers may provide employees with additional sick leave beyond what the law requires.

Confidentiality Requirements

Employers must keep information about employees’ health and incidents of domestic violence, sexual offense, stalking, or human trafficking confidential. The New York paid sick leave law prohibits employers from requiring employees to disclose such confidential information in order to take accrued sick leave.

Sick Leave Increments and Carryover

Employers can require employees to take sick leave in reasonable increments. The minimum increment may not exceed 4 hours. Sick leave must be paid at either the employee’s regular rate of pay. (Or at minimum wage, if their regular pay rate is somehow lower.)

Accrued and unused sick leave may be carried over to the following year. An employer with less than 100 employees can restrict the use of accrued sick leave to a maximum of 40 hours per calendar year. Employers with 100 or more employees may have a policy that restricts the use of accrued sick leave to a maximum of 56 hours per calendar year.

Employers are not required to pay out accrued and unused sick leave upon termination of employment. However, they must notify employees if they do not plan to pay out unused leave.

Returning to Work

Employees have a right to return to the same position with equal compensation after sick leave. Employers may not retaliate against an employee for requesting or using accrued sick leave. Retaliation includes discharging, threatening, penalizing, or discriminating against an employee for exercising their rights under the law.

Recordkeeping

The law requires New York employers to keep payroll records documenting the amount of sick leave provided to each employee for a minimum of 6 years.

Upon request from an employee, an employer must give a summary of all used and accrued sick leave for the current and any previous years. Employers have 3 days to comply with such requests.

Employer Alternatives to Mandatory Sick Leave

Employers can satisfy the New York paid sick leave requirements through an alternative leave policy. However, the policy must offer at least as many hours and as beneficial of an accrual rate and carryover rules as the law requires. And employees must be able to use the leave for all of the reasons allowable under the law.

Employers with unions can negotiate alternatives to the New York paid sick leave requirements. The agreement must have been entered on or after September 30, 2020, and provide “a comparable benefit.” It also must specifically “acknowledge” the New York paid sick leave law.

Existing Sick Leave Requirements

The state law specifically allows that New York City may continue to enforce its existing sick leave law or amend it. But the NYC law must meet or exceed the New York paid sick leave law’s requirements.

The same provision says that “any paid sick leave benefits provided by a sick leave program enforced by a municipal corporation in effect as of the effective date of this section shall not be diminished or limited as a result of the enactment” of the New York paid sick leave law. This language seems to refer to local laws outside of New York City, such as the Westchester County paid sick leave law. But the language is somewhat ambiguous. It will be important to see how the Department of Labor clarifies the provision through its anticipated regulations.

Anticipated Regulatory Guidance

The Commissioner of Labor can adopt regulations for the enforcement of this new sick leave law. It is almost certain that regulations will be issued before the law’s September 30, 2020 effective date. Employers will need to rely on such guidance in reviewing their existing policies for compliance or to create new sick leave programs.

Get Ready To Comply

For now, employers should begin reviewing their current leave policies. One option will be to plan to transition to a paid-time-off policy that combines sick leave, vacation, and any other paid leave. This approach will be the easiest way for many employers to comply with the law while limiting the cost of additional paid leave.

However, employers should not expect to finalize their policies until the Department of Labor issues its regulations. These will likely answer many pertinent questions that will help determine the right approach for your organization.

These new sick leave requirements may prove particularly problematic for employers with existing collective bargaining agreements. They may need to either provide additional sick leave per the law on top of existing benefits or seek renegotiation of existing policies as soon as possible for a new agreement to take effect no earlier than September 30, 2020.

 

For more updates on the New York Paid Sick Leave law and other legal developments of interest to New York employers, subscribe to receive our email newsletter and follow Horton Law on LinkedIn.