It’s Time, as Bruce Buffer would say! New York State’s general paid sick leave (“PSL”) mandate while it goes into effect on September 30, 2020, employers will not need to permit employees to use PSL until January 1, 2021. But, keep in mind that the regulations go beyond the statewide COVID-19 Emergency Leave Law obligation and go into effect come month’s end. As employers begin and/or continue to wrestle with compliance, ambiguities, and potential problems with the pending mandate, MYPTHRM is here with a reminder of the statewide general PSL law’s key provisions and potential problem areas for employers to monitor for the remainder of the year.
Does your PTO policy comply with New York’s new paid sick leave law?
New York is one of 15 other states and the District of Columbia in requiring statewide employer-provided paid leave. (The other states are Arizona, California, Colorado, Connecticut, Maine, Maryland, Massachusetts, Michigan, Nevada, New Jersey, Oregon, Rhode Island, Vermont, and Washington). Despite the statewide mandate emerging earlier this year, many New York employers are familiar with the existing New York City Earned Safe and Sick Time Act and the Westchester County Earned Sick Leave and Safe Time Leave Laws.
Regardless, all New York employers should be bracing for the statewide law’s impact because the statewide PSL law does not preempt these local mandates. Moreover, there are some provisions of the statewide law that expressly require more generous PSL benefits and protections for employees as compared to the local ordinances.
Complicating the PSL landscape in New York is that there are a number of ambiguities under the state’s general PSL law, including, but not limited to, whether: (a) employer size is determined on a state or nationwide basis given this calculation determines certain benefit obligations; (b) employers can impose a usage waiting period for new-hires beyond January 1, 2021, at which time employers must permit the use of PSL; (c) frontloading PSL in lieu of accrual eliminates year-end carryover obligations, and (d) employers can impose a cap on year-end carryover of unused PSL given the law does not reference a cap at this time.
As of September 1, 2020, NYS has not released guidance or regulations on the fast-approaching law. As a result, we have been recommending to our NYS clients and employers that they should begin compliance preparation.
Here is MYPTHRM’s synopsis of the statewide general PSL law’s requirements.
Amount of Sick Leave
- Employers with at least 100 employees in any calendar year must provide employees at least 56 hours of paid sick leave;
- Employers with between five (5) and 99 employees in any calendar year must provide employees at least 40 hours of paid sick leave;
- Employers with four (4) or fewer employees in any calendar year and a net income of greater than $1 million in the previous tax year must provide employees at least 40 hours of paid sick leave, and
- Employers with four (4) or fewer employees in any calendar year and a net income of $1 million or less in the previous tax year must provide employees at least 40 hours of unpaid sick leave.
Rate of Pay, Accrual and the Calendar Year
Employees must be compensated for their paid sick leave at their regular rate of pay or minimum wage, whichever is greater.
Similar to the requirements under New York City’s Earned Safe and Sick Time Act (New York City Sick Leave Law), employees will accrue sick leave at a rate of at least one (1) hour for every 30 hours worked beginning on the commencement of employment or September 30, 2020, whichever is later.
For the purposes of determining an employer’s size, a calendar year is defined as the 12 month period from January 1 to December 31. For other purposes, including the employee’s use of sick leave, a calendar year can mean any other regular, consecutive 12-month period, as determined by an employer.
Covered Reasons for Taking Leave
Sick leave may be taken for an employee’s or employee’s covered family member’s physical or mental illness, injury, or health condition regardless of whether it has been diagnosed or requires medical care at the time the employee requests the leave. Sick leave may also be taken for purposes generally characterized as “safe leave” meant to protect victims of domestic violence, family offense, sexual offense, stalking or human trafficking, and other reasons relating to the care of an employee and his or her family.
Prohibition Against Discrimination, Retaliation and the Disclosure of Confidential Information
Discrimination and retaliation against employees that request or use sick leave is strictly prohibited, and employees must be restored to the same position with the same pay, terms, and conditions of employment before the leave.
Employers also cannot require disclosure of confidential information relating to a physical or mental illness, injury or health condition, or confidential information relating to absence due to domestic violence, sexual offense, stalking, or human trafficking as a condition for providing sick leave.
Record-keeping and Other Requirements
Employers can set a reasonable minimum increment for the use of sick leave, including and up to four hours. Unused sick leave can be carried over to the following calendar year. Employers are not required, however, to pay employees for unused sick leave at the end of the calendar year or upon separation from employment.
Under the State Sick Leave Law, employers are required to maintain records of the amount of sick leave provided to employees. Upon an employee’s oral or written request, employers must provide employees with a summary of the amount of their sick leave used and accrued in the current and/or preceding calendar year within three business days.
Interaction with Existing Leave Policies, Laws and Collective Bargaining Agreements
Employers with an existing sick leave or time off policy that provides employees with an amount of leave that meets or exceeds the requirements of the new state law, and satisfies its accrual, carryover, and usage requirements, are not required to provide additional sick leave.
The State Sick Leave Law also does not preempt laws or ordinances enacted by cities with a population of 1 million or more that meet or exceed the requirements for minimum hours or use. Accordingly, New York City’s Sick Leave Law still applies to employees in New York City. It is not clear, however, how the new state law interacts with the city’s sick leave law. Based on New York City’s Sick Leave Law’s interaction with other leave laws, leave provided by the State Sick Leave Law may run concurrently. Furthermore, the new state law provides paid sick leave in excess of what is provided by the city’s sick leave law for employers of at least 100 employees. In those instances, any sick leave provided for by the new state law in excess of the city’s sick leave law would be, at a minimum, appended to the lower standards provided by the city law. Regulations to be issued by the New York State Department of Labor (NYSDOL) should provide additional guidance.
Different requirements apply to employers that enter into a collective bargaining agreement on or after September 30, 2020, the effective date of the new state law. These employers may, under a collective bargaining agreement, provide comparable benefits in the form of leave, compensation, or other employee benefits, or may provide sick leave that is different from what is required by the new state law as long as the collective bargaining agreement acknowledges the provisions of the State Sick Leave Law explicitly.
Employer Takeaways
The NYSDOL will likely issue guidance before the end of the month, but employers are well-advised to seek advice now to review existing sick leave and PTO policies, and their implementation, in order to ensure compliance with the State Sick Leave Law. Managers and human resource personnel should be trained to handle requests for sick leave under the new state law. Payroll records should be updated to include the amount of sick leave provided to each employee. It is also advisable for employers to include sick leave tracking on employees’ wage statements.
With paid leave laws expanding and growing in complexity, employers need a “trusted partner” to keep them up-to-date. Your Part-Time HR Manage, LLC is your “trusted partner” for solutions and recommendations on addressing compliance with this law and paid leave requirements.
To learn how MYPTHRM can become your “trusted partner” or to stay up-to-date on Paid Sick Leave developments, click here to sign up for MYPTHRM’s Weekly Legal Update or to request additional information. Or, if you prefer, give us a call at 516.522.0078 or email us at [email protected].
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My Part-Time HR Manager provides advisory services to our clients and newsletter subscribers. None of the information contained herein should be construed as legal or financial advice, nor is My Part-Time HR Manager engaged to provide legal or financial advice. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult your legal or your financial advisor if you want assurance that our information, and your interpretation of it, is appropriate to your particular situation.
