State Guidance on the Implementation of the New York State Paid Sick Leave Law

December 28, 2020 State Guidance on the Implementation of the New York State Paid Sick Leave Law

KEEPING YOU INFORMED…

As outlined in our previous Memorandum to Clients, New York State enacted a new paid sick leave (PSL) law (Labor Law § 196-b) on April 3, 2020. Unlike other laws put in place during the pandemic, the new PSL law is permanent and requires private employers (only) with five or more employees to provide them with paid sick and safe leave benefits every calendar year.[1] In accordance with the new law, private sector employees began accruing paid sick leave on September 30, 2020 at the rate of not less than one hour for every 30 hours worked.

We are writing to remind you that, effective January 1, 2021, covered NYS private employers must begin allowing their employees to use their accrued paid (or unpaid) sick leave. In anticipation of the January 1, 2021 effective date, the NYS Department of Labor (DOL) has published proposed regulations[2] and guidance in the form of answers to frequently asked questions (FAQs).[3] Below is relevant information from both the proposed regulations and the answers to the FAQs. Once the proposed regulations are adopted, we will let you know if any changes were made from the proposed regulations described in this memorandum.

Employee Eligibility
All private sector employees in New York State, “regardless of industry, occupation, part-time status, overtime exempt status, and seasonal status,” are covered. This also includes employees of charter schools, private schools and not-for-profit corporations, as well as out-of-State employees who physically work in New York State. Public sector employees, including federal, State and local government employees, are not covered.

Permitted Uses

Sick Leave, which can be used for:

• • • • Mental or physical illness, injury, or health condition (does not require diagnosis or medical treatment/care at the time of the request for leave);
      • Diagnosis, care, or treatment of a mental or physical illness, injury or health condition (or need for medical diagnosis or preventative care).

Safe Leave, which can be used for:

• • • • An absence from work when an employee (or an employee’s family member) has been a victim of domestic violence (as defined by State Human Rights Law), a family offense, sexual offense, stalking, or human trafficking due to any of the following, as it relates to the previously mentioned offenses; to:
        • obtain services from a domestic violence shelter, rape crisis center, or other service provider/program;
        • participate in safety planning, relocate temporarily or permanently, or to take other actions to increase the safety of the employee (or the employee’s family member);
        • meet with an attorney or other social services provider;
        • 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 action necessary to ensure the health and safety of the employee, the employee’s family or to protect those who associate or work with the employee.

Calendar Year
Pursuant to the PSL law, a “calendar year” is defined differently based on its proposed use. For purposes of determining the size of the employer’s workforce, a “calendar year” means the period beginning January 1 and ending December 31. For other purposes, such as for an employee’s accrual and use of leave, an employer may set a “calendar year” as any 12-month period, including a fiscal year, a standard calendar year or the year anniversary of the employee’s start date.

Amount of Leave
The total amount of paid or unpaid sick leave that an employer is required to provide is based on the size of the employer’s workforce over a standard calendar year (Jan. 1 – Dec. 31) and the employer’s net income during the previous tax year. The number of employees during the calendar year is calculated by “counting the highest total number of employees concurrently employed at any point during the calendar year to date.” This includes part-time employees who are considered employed each day of the week. The resulting number is used to determine the amount of leave an employer is required to provide:

• • • An employer with four or fewer employees and a net income of $1 million or less in the previous tax year is required to provide up to 40 hours of unpaid sick leave per calendar year.
    • An employer with four or fewer employees and a net income of greater than $1 million in the previous tax year is required to provide up to 40 hours of paid sick leave per calendar year.
    • An employer with 5 to 99 employees must provide up to 40 hours of paid sick leave per calendar year.
    • An employer with 100 or more employees must provide up to 56 hours of paid sick leave per calendar year.

Immediate Accrual
Effective September 30, 2020, employees began accruing leave, and starting January 1, 2021, they may begin using their accrued leave. Leave must be accrued at a rate of not less than one hour for every 30 hours worked.

Rate of Pay

• • • Accrued PSL is paid at the employee’s regular rate of pay, or at the statutory minimum wage, whichever is greater.
    • Overtime exempt employees who are paid an hourly wage are assumed to work 40 hours per workweek.
    • Employers are not required to pay an overtime rate, even if the hours worked could be considered “overtime.”
    • Employees paid at more than one rate of pay must be paid at the “weighted average” of those rates (total regular pay divided by the total hours worked in a week).
    • An employer may not take a tip credit from an employee’s wage rate for PSL hours and is not required to pay for employees’ lost tips or gratuities as part of their PSL rate.
    • An employer is prohibited from reducing an employee’s rate of pay for leave hours.

Accruing PSL for “Hours Work”
Employees only accrue paid leave for hours actually worked, which includes “on-call,” training, and travel time hours and must account for all time worked, regardless of whether hours worked are in less than 30-hour increments. Employees paid on a non-hourly basis accrue sick leave based on the actual time spent performing work. However, bonus time and subject-to-call time do not count towards hours worked.

No Requirement to Telecommute or Work Remotely
An employer cannot require an employee to work from home (or telecommute) instead of using his/her accrued sick leave. An employer may, however, offer the options of working from home or telecommuting, and if an employee voluntarily agrees, that employee retains his/her accrued paid or unpaid sick leave.

Front-Loading and Carry-Over
As an alternative to accruing one hour for every 30 hours of work completed, an employer may front-load an employee’s paid sick leave hours by providing the full amount of sick leave required by the PSL law at the beginning of each “calendar year.” Although employers may front-load sick leave at the beginning of the calendar year, the employer may not revoke or reduce the front-loaded leave at some later point in time if the employee works fewer hours than initially anticipated. In addition, sick leave left unused over the course of a year must be carried over to the next “calendar year.” Employers may limit employee use of carried over sick leave to the number of hours the employee is entitled to each calendar year (for example, 40 hours for employers with 5 to 99 employees). However, this may result in employees maintaining leave balances that exceed the amount they are permitted to use in a single year.

Requesting Sick Leave
An employee is entitled to use sick leave upon written or oral request. If an employee provides notice of his/her intent to use accrued sick leave, there is no minimum amount of notice required.

Documentation Requirements

• • • An employer may not require medical or other verification regarding sick leave, unless the sick leave lasts for more than “three consecutive previously scheduled workdays or shifts.”
    • Except where prohibited by law, if an employee’s sick leave lasts for three consecutive days or shifts, the employer may request documentation from the employee confirming sick leave eligibility. An employer cannot require the employee or the individual providing documentation, including healthcare providers, to disclose the employee’s reason for leave, except as required by law. Requests for documentation are limited to the following:
      • Documentation from a licensed medical provider supporting the existence of a need for sick leave, the amount of leave needed, and the date upon which the employee may return to work; or
      • An attestation from an employee of the employee’s eligibility to take sick leave.
    • An employer cannot require an employee to pay for any costs or fees associated with obtaining verification of eligibility in order to use sick leave.
    • An employer may not require an employee to provide confidential information, including the nature of illness, its prognosis, treatment or other related information and may not require an employee to provide any details or information regarding the employee’s use of safe leave.
    • An employer may not require an employee’s attestation to explain the nature of the illness or details related to domestic violence, sexual offense, family offense, human trafficking or stalking that necessitates the use of safe leave.

Leave Increments
An employer may require that PSL is used in increments, with the maximum increment set at four hours (or less, if the employer allows for leave in smaller increments, such as 30 minutes, one hour; etc.). If an employer requires employees to take PSL in increments, an employer must notify employees either in writing or by posting a notice in the workplace, “prior to leave being earned.”

Existing Policies
If an employer has an existing leave policy that meets or exceeds the PSL law’s accrual, carryover and use requirements, which includes those covered by a collective bargaining agreement, then the employer has no further obligations pursuant to this law.

Collective Bargaining
Any collective bargaining agreement (CBA) entered into after September 30, 2020 may provide employees with benefits that differ from the PSL law, as long as those benefits are “comparable” to those required by the law. For purposes of the PSL law, the DOL considers contractual leave time to be comparable to the leave provided by this law. A CBA may combine multiple leave benefits, regardless of the labels (e.g., annual or vacation time), to satisfy the “comparable benefit” requirement. To ensure compliance, the law requires the CBA to reference Labor Law Section 196-b. The DOL additionally recommends, to “avoid confusion or misunderstanding,” that the CBA “explicitly” identify and label which benefits are deemed comparable to the PSL law.

Retaliation
Employees have the right to use sick leave without retaliation and must remain in or be restored to their previous position of employment prior to when the sick leave was taken.

Recordkeeping
Employers must keep employee payroll records for six years. Each employee record must include the amount of sick leave accrued and used on a weekly basis. If an employee requests a summary of the amount of sick leave that he/she has accrued and used (current or previous calendar years), an employer must provide this information within three business days.

Interaction with Other Leave Laws
The PSL entitlement is separate from other State and federal leave requirements and must be paid in addition to any of those entitlements, which includes Paid Family Leave (PFL). An employee can take PSL and PFL at the same time, provided that this has been approved by his/her employer. This may allow an employee to receive up to his/her full salary for all or part of the leave.

Penalties
Failure to provide sick leave (an employee benefit) is equivalent to failure to pay wages, which may result in civil/administrative actions and/or criminal penalties.

If you have any questions regarding the proposed regulations, the DOL’s guidance, or need assistance in reviewing or amending any applicable documents or agreements, please contact Alyson Mathews, Lauren Schnitzer, Michelle A. Mahabirsingh or one of our other attorneys by calling 631-694-2300.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

[1] Employers with fewer than five employees and a net income of $1 million or less in the previous tax year must provide up to 40 hours of unpaid sick leave every calendar year.

[2] The DOL New York Paid Sick Leave proposed regulations are available at: https://www.ny.gov/new-york-paid-sick-leave/new-york-paid-sick-leave.

[3] The DOL New York Paid Sick Leave FAQs are available at: https://www.ny.gov/sites/ny.gov/files/atoms/files/PSL_FAQ_PaidSickLeaveFAQ.pdf.

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