Late on Monday, October 19, 2020, the New York State Department of Labor began issuing guidance on the New York State Sick Leave Law, which was added to the State’s Labor Law in April of this year. As a reminder, this law mandates most private sector employers provide paid safe and sick leave to all of their employees upon commencement of employment at an accrual rate of at least one hour of sick leave for every thirty hours worked. The State’s guidance and FAQs can be found here on the New York State Department of Labor website. While this guidance clarifies some of the questions that arose after the law was issued, it does not address many aspects of the new law. For that reason, we anticipate the State will continue to update the guidance and FAQs and possibly issue more detailed regulations, hopefully before employees can begin using this leave on January 1, 2021.
Below are some of the important points addressed by the current guidance and FAQs:
- Accruing Hours. Employees will only accrue sick leave during hours physically worked in New York State. Sick leave accrues during time that would be considered hours worked, such as on-call time, training time, and travel time. It does not accrue during time spent taking sick leave or during non-working hours. When employees are paid on a non-hourly basis, accrual of sick leave is measured by the actual length of time spent performing the work.
- Caps on Accrual. Employers may impose a cap on accrual, which corresponds to the total amount of sick leave an employee is entitled to receive. For example, if an employee is entitled to accrue 40 hours of paid sick leave per year, an employer can stop the accrual of sick time for the remainder of the year once an employee has accrued 40 hours of sick leave.
- Pay. An employee is entitled to receive their normal pay for leave. If an employee uses leave during hours that would have been overtime, the employee is not entitled to the overtime rate of pay. An employee is not entitled to any tips or gratuities that might have been earned during the time that sick leave is taken, but an employer also may not take a tip credit during leave time. If an employee is paid different rates for different tasks, the employer must use a weighted average of those rates.
- Donating Unused Leave. Employers may allow employees to donate unused leave to other employees, as long as this practice is voluntary. However, employers are not required to allow donation.
- Posting. Employers must notify their employees, in writing or by posting a notice in the workplace, of any restrictions in their leave policy affecting the employee’s use of leave, including any limitations on leave increments, prior to the leave being earned.
And below are some of the open issues that we hope will be addressed by future guidance:
- How employees are counted for purposes of determining employer size and the corresponding amount of sick leave entitlement. Is the count based on the highest number of employees on payroll at any point during the year, or the total number of employees on the payroll regardless of when they worked?
- What constitutes an “ongoing employment relationship” for purposes of determining whether seasonal workers may maintain their leave accrual through a break in employment?
- Whether employers must allow carryover of all hours accrued in an employee’s sick leave bank where they front-load sick time, and, regardless of whether hours are front-loaded or accrued over time, whether employers can cap carryover at the amount an employee would be entitled to use in the coming year (i.e., 40 or 56 hours, depending on employer size).
- Whether an employer may impose any restrictions on the type and timing of notice an employee must provide before using leave, particularly if the leave is foreseeable.
- Whether there are any parameters regarding the interaction between sick leave and other types of leave where an employer has a combined “Paid Time Off” policy.
- The type of supporting documentation that employers may require when an employee requests to use their sick leave.
While this guidance is a good first step, we expect the State will be updating the guidance and FAQs as more questions come to light, particularly because of the gaps in information that we have highlighted in this LEGALcurrents.
Employers should continue to think about how to address the law’s requirements, but it may be best for employers to wait to finalize a new sick leave policy until the State provides additional information because future guidance could require further changes to a planned policy.
Harter Secrest & Emery’s Labor and Employment attorneys are here to answer any questions you may have and to assist your organization in complying with these new paid sick leave requirements. If you would like more information on the regulations, contact any Labor and Employment team member at 585.232.6500 or 716.853.1616.