HR Alert: Practical Guidance on New York’s Paid Sick Leave Law

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As we previously reported, New York’s new Paid Sick Leave (PSL) requires all employers to provide sick leave each year.

For very small employers with four or fewer employees, they must provide 40 hours of PSL annually – it’s paid if the company nets more than $1 million annually and unpaid if the profit is under $1 million.

Companies with 5 to 99 employees must provide 40 hours of paid leave, and larger companies must provide 56 hours (or 7 work days) of paid leave annually.

As you’ll remember, if an employer chooses the accrual method of accumulating sick days, accrual began on September 30, 2020. Employees can begin to use PSL on January 1, 2021.

This week, the New York State Department of Labor (DOL) released long-awaited guidance on the new law. This is what you need to know.

Accrual & Frontloading
This is what everyone’s been talking about. We know employers can choose to either frontload the PSL time at the beginning of the year or have employees accrue PSL time at the rate of one hour for every 30 worked.

We now know that employers don’t have to frontload the entire 40 (or 56, depending on size) hours per year, but if that’s their choice, they still must track or account for employees’ hours until they reach their 40 or 56 hours of eligibility, depending on size. Frontloading, then, doesn’t eliminate much of the chore of tracking work hours – even for exempt employees. That’s a disappointment for those generous employers who were planning to frontload time.

For those accruing PSL hours, regular hours worked, on-call time, training time, and travel time all count.

One bright light: 40 (or 56, as the case may be) hours are both the minimum and maximum required by law. Stated differently, if an employee works more than 1200 hours in a year, accrual of PSL hours can stop when she reaches the 40 or 56-hour threshold.

Carry Over of Hours from Year to Year
Here’s where it gets even more challenging for New York employers. Employees automatically are allowed to carry over from year to year unused PSL hours. Yet, they can be forbidden to use any more than 40 (or 56, depending on size) PSL hours in the following years.

What does this mean? Employees who don’t use their PSL may have an abundant PSL “bank” of time and no way to use it. So what might a crafty employee do? Well, since the law allows donations of PSL, he might donate his time to a coworker with a chronic illness, pressuring the employer to permit someone to remain on PSL longer than the minimum required by law. This poses a morale dilemma for thoughtful employers.

Practice Pointer: Ensure your PSL policy provides that PSL hours are forfeited upon separation.

Here’s where the law becomes a practical burden to a well-run company. Employees aren’t required to provide notice of their need for PSL any specific period prior to using it! Employers shouldn’t discipline them if their request comes in even one minute before their shift. This is because the law allows employees to merely make an oral or written notice “prior to using” PSL.

Unusual Pay Rate Situations
When you don’t use an hourly rate or salary (for example, a per-encounter or flat rate employee), PSL accrual is measured “by the actual length of time spent performing work.”

If you pay an employee different wage rates for different tasks, the PSL payment is computed as her weighted average, which is the total regular pay divided by the total hours worked in a week.

If an employee is promoted, demoted, or transferred, the employer can’t reduce his already-accrued PSL. When the employee takes PSL, he’s paid his typical rate at that time, not at the time the hours were accrued.

Some Other {Often Frustrating} Tidbits

  • Routine Appointments. Yes, Virginia, by using their PSL, employees now get paid for going for their dental check-up, getting a cavity filled, or any other routine health care appointment.
  • Remote Work. If an employee wants to use PSL, no one can make her work from home or telework instead of taking a PSL day. Only employees have that choice.
  • Seasonal and Part-Timers. All employees of any kind get PSL. The only limitation is she must have worked at least 30 hours to receive one hour of PSL. In other words, the same accrual rules apply. Where a seasonal worker maintains an “ongoing employment relationship” with her employer, unused PSL hours carries over from one year to the next.
  • Combo Leave. Employers have the right to allow eligible employees to combine PSL and Paid Family Leave (PFL) days in order to receive full compensation for the time off. But an employee can’t insist on getting more than her regular wages.
  • Bereavement. Although PSL isn’t permitted for bereavement purposes, the law is so broad that any suggestion that the employee needs time off for mental or emotional issues – even undiagnosed ones – triggers entitlement to PSL leave.
  • Overtime. If taking a PSL day would thrust the employee into an over-40-hours overtime situation, PSL is not required to be paid at the overtime rate. PSL is always paid at the straight time rate.
  • Discipline. Discipline is allowed if an employee fakes or lies about the reason for needing PSL. But how can an employer even figure this out?

Final Practice Pointer. Get your PSL policy drafted now. Share and explain it to your workforce. There are civil fines and penalties for failure to provide PSL similar to unpaid wages. You don’t want to be in the crosshairs of the DOL.

If you have questions on Paid Sick Leave, reach out to us now. We’re be happy to help guide you through the new law and its often-frustrating requirements. Remember, we’re running businesses too, and we’re here for you.

Lisa Coppola

Written by Lisa Coppola

Founder of The Coppola Firm

Lisa A. Coppola, Esq. understands the challenges her clients face, whether they’re starting a new business, taking their existing operations in a new direction, or facing a claim or threat.

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