New York’s new Paid Sick Leave law becomes effective today – September 30, 2020. What’s an employer to do with this? Well, we’ve got some practical – albeit preliminary – insights and guidance for you.
And, like you, we’re staying tuned to the NY Department of Labor (DOL), because they’ve promised regulations or other guidance that will “flesh out” the bare bones of the law.
So here goes!
Why is September 30th important? This date is important, because if an employer chooses to have sick leave hours accrue, today’s the date on which employees begin to accrue hours.
Accrue? Isn’t that an accounting term? Well, yes it is, but it also works here. The simplest way to think about this is that for every 30 hours an employee works, he gets 1 hour of sick leave.
Isn’t there an easier way besides counting hours? Actually, there is, but some think it’s an entirely too rich benefit. For those employers that don’t wish to count hours, they simply can frontload 40 (or 56, as the case may be) sick leave hours to each employee’s account at the beginning of the year. This saves the effort of tracking hours, which is particularly challenging in a professional workforce, where many if not most employees are exempt and don’t punch a timeclock.
But wait! I’m a small business. Does this apply to me? Yes, but the impact of the law depends on size and net income. Here’s the 411 on that:
- Four or fewer employees/net income of $1 million or less: must provide 40 hours of unpaid sick leave each year.
- Four or fewer employees/net income of $1 million or more: must provide 40 hours of paid sick leave each year.
- Five to 99 employees: must provide 40 hours of paid sick leave each year.
- 100 or more employees: must provide 56 hours of paid sick leave each year.
When are my employees eligible? New York employees become eligible to use sick leave starting January 1, 2021.
What about part-time employees? Do they get it too? Yes, they do; however, for part-timers, their sick time is prorated depending on hours worked.
Is this because of COVID-19? And will it end when COVID ends? This sick leave is entirely separate from the pandemic. It is, as far as we can see, a permanent law affecting all New York businesses, even tiny ones, for the foreseeable future.
What about our current PTO policy? Can we simply incorporate sick leave into it? That’s up to each employer. Some will be inclined to incorporate sick leave into their already-existing PTO policy. Beware the risk, however, of being able to prove that 40 (or 56, as the case may be) sick leave hours were available to each employee.
Should we put this down in writing? Yes, of course. Clarity is extremely important. One, it shows compliance with the law. And, two, it helps your employees to understand the rules.
What kind of illness qualifies? Actually, many illnesses are covered, as are some other types of circumstances. They include:
- mental or physical illness, injury, or health condition of the employee or her family member whether a diagnosis has been obtained;
- diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of, or the need for medical diagnosis of, or preventative care for, the employee or her family member; and
- an absence when the employee or her family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking and seeks or obtains services (including shelter, attorney, or law enforcement), or takes any other action to ensure the health or safety of the employee or her family member or to protect those who associate or work with the employee.
Who are these so-called family members? That’s a broad category too, friends. A family member includes:
- domestic partner
- spouse’s child or parent
- domestic partner’s child or parent
Added to this, a “parent” is a biological, foster, step- or adoptive parent, or the employee’s legal guardian, or someone who stood in loco parentis to the employee when she was a minor. That long Latin word means, simply, someone who acted like a parent to your employee.
What else should worry me? A few things to be sure, and here they are:
- Employees can use sick leave in increments of less than one day. An employer can set a minimum increment, but that minimum can’t be more than four hours.
- An employer can’t ask for proof of illness or other qualifying event.
- Employers must allow for carry-over of sick leave; however, employers with fewer than 100 employee may limit the use of sick leave to only 40 hours per year.
- The sick-leave-taking employee must be paid at her regular rate or minimum wage, whichever is higher.
- Employers can’t retaliate against an employee who takes sick leave.
- Employees who take sick leave are entitled to job protection. Stated differently, the employer must ensure they can return to their regular job.
- Employers are required to track time used and answer any questions about it within three days.
- All sick leave records must be retained for at least six years.
What’s next? Well, we think the first thing to do is decide are you basing your sick leave on accrual or front loading? Once you decide that, you can either wait until January 1 or start tracking hours worked immediately.
The next thing to think about is getting a New York Sick Leave policy in place and distributed to employees. We think, however, that employers are better off waiting a few days or perhaps a couple weeks until the DOL issues its guidance. Circumstances should be a bit clearer then.
What if I have more questions? Glad you asked! Reach out to a member of our team. We’d be happy to help guide you through this new mandate. Remember, we’re running businesses too, and we’re here for you.
The Employment Law Team
Lisa Coppola, Esq. (firstname.lastname@example.org)
Jennifer Scharf, Esq. (email@example.com)
Krista Dean, Esq. (firstname.lastname@example.org)
Morgan Levy, Esq. (email@example.com)