On April 3, 2020, New York State enacted a Statewide mandatory sick leave law (SLL) affecting all private employers in the State. The law requires all private employers to provide up to 40 or 56 hours of paid or unpaid leave (depending on size and net income) annually for covered absences. Under the SLL, employees became eligible to start accruing leave time on September 30, 2020, for use starting on January 1, 2021. The New York State Department of Labor (DOL) recently issued guidance and answers to frequently asked questions (FAQs) to assist employers in complying with the SLL.
The guidance and FAQs provide direction on the application of the SLL in several areas, including the following:
- Employers must use the period from January 1 to December 31 to determine their total number of employees.
- For other purposes, including use and accrual of leave, employers may use any 12-month period as the “calendar year.”
- Employers with multiple locations must count the total number of employees across all locations in determining how many employees they have for purposes of the SLL.
- Out-of-state employers must provide sick leave to employees who physically work in New York State.
- All private-sector employees in New York State are covered, regardless of industry, occupation, part-time or seasonal status, and overtime-exempt status.
- Although employees of federal, state and local governments are not covered, employees of charter schools, private schools and not-for-profit corporations are covered.
- Employees are immediately eligible to accrue leave under the SLL, and there is no minimum period of employment before an employee can use sick leave.
- Employees who telecommute are covered by the law only for the hours when they are physically working in New York State.
- An employer cannot require an employee to work from home or telecommute instead of taking sick leave, but can offer those options.
Front-Loading Leave and Carryover
- Employers may front-load sick leave at the beginning of the calendar year as an alternative to allowing employees to accrue one hour of leave for every 30 hours worked. However, front-loaded leave may not be revoked or reduced after being granted, including if the employee works fewer hours than what would entitle the employee to the amount of front-loaded leave under the hours accrual method.
- The SLL allows employees to carry over unused sick leave hours each calendar year. The FAQs suggest that if an employer front-loads the full 40 or 56 hours (whichever is applicable) at the beginning of the calendar year, that accrued unused leave does not have to be carried over. However, the DOL’s position on this issue remains unclear.
Rate of Pay
- Sick leave is paid at the employee’s regular rate of pay, even if an employee uses leave during hours that would have been overtime if worked.
- Employers are not required to pay employees for lost tips or gratuities, but cannot take a tip credit from an employee’s wage rate for sick leave hours.
Requesting Sick Leave
- An employee is entitled to leave upon making an oral or written request prior to using accrued sick leave.
- As long as an employee makes a request to use sick leave, there is no specified minimum notice requirement.
Existing Leave Policies
- If an employer, including one with a collective bargaining agreement, has an existing leave policy that meets or exceeds the accrual, carryover and use requirements of the SLL, the employer does not have to provide additional leave.
Collective Bargaining Agreements
- A collective bargaining agreement entered into on or after September 30, 2020, may provide for different leave benefits than required under the SLL, as long as such benefits are “comparable” to those required by the law, and the agreement specifically acknowledges the provisions of the law. The DOL recommends that the acknowledgment specifically identify any benefits deemed comparable to the those required by the SLL.
Recordkeeping and Notice Requirements
- Employee payroll records must include the amount of sick leave accrued and used by each employee on a weekly basis.
- Upon the request of an employee, employers must provide, within three business days, a summary of the amounts of sick leave accrued and used by the employee in the current calendar year and/or any previous calendar year.
- Employers must notify employees in writing or by posting a notice in the workplace, prior to leave being earned, of any restrictions in their leave policy affecting the employees’ use of leave, including any limitation on leave increments.
Interaction With Other Leave Laws
- Other local leave laws, such as the New York City Paid Safe and Sick Leave Law, remain applicable to the extent their provisions meet or exceed the standards and requirements in the SLL.
- Sick leave under the SLL is separate and in addition to the quarantine leave for employees subject to a precautionary or mandatory order of quarantine or isolation related to COVID-19, and use of COVID-19 leave does not impact or otherwise utilize an employee’s sick leave under the SLL.
- Failure to provide sick leave is equivalent to a failure to pay wages and may subject an employer to “civil/administrative action and/or criminal penalties,” including “the full amount of the wage underpayment, 100% liquidated damages, and civil penalties in an amount up to double the total amount to be due.”
- Review current leave policies and practices, and ensure that a compliant leave policy is in place no later than January 1, 2021.
- If using the hourly accrual method, ensure that employees are accurately credited, as of January 1, 2021, with leave time for hours worked since September 30, 2020.
- Notify employees in writing or by posting a notice in the workplace of any permissible restrictions on the use of leave before leave is earned.
- Train supervisors, managers and human resources professionals on the requirements of the SLL.
- Review payroll record maintenance practices to ensure sick leave accrual and use are properly tracked and recorded.