On December 28, 2020, New York State Department of Labor (DOL) published several so-called fact sheets concerning the brand new Paid Sick Leave (PSL), which employees are able to use beginning January 1, 2021. The fact sheets cover paid sick leave, paid safe leave, and specific information for domestic workers, farmworkers, restaurant and hospitality workers, seasonal workers, union workers, and employers.
Here’s what you need to know:
Employee-Notice of Restrictions on PSL: We know that employers may put certain limitations on PSL, like limiting employees to use PSL in four- or eight-hour increments and limiting PSL usage to 40 or 56 hours per year. We also know that those limitations must be given to employees in writing or by posting a notice.
The DOL now tells us that if an employer decides to change its policy and place additional limitations on PSL, employees must be notified “prior to the leave being earned.” What this means is that any policy changes can’t be retroactively applied to PSL that’s already accrued or been frontloaded.
This seems to suggest that if an employer frontloads PSL, any changes it wishes to make mid-year simply won’t be effective until the following calendar year!
Frontloading PSL for Part-Time Employees: As we’ve previously reported, employers can frontload PSL for part-time employees based on the hours they’re anticipated to work. Just like full-timers, part-timers earn PSL at the rate of one hour for every 30 hours worked. If an employer frontloads fewer than the maximum allowed (either 40 or 56 hours), it must be vigilant in tracking the part-timer’s hours. If she works more than originally anticipated, she must be given more PSL hours.
If a Shutdown Occurs: In multiple fact sheets, the DOL posed the question whether employees are able to use PSL if their employer closes due to a public health emergency like COVID-19. Although posed as a question, the DOL’s answer falls far short of clarity. Instead of providing guidance, the DOL merely concludes that this is a case-by-case analysis largely dependent on the facts at hand. It also then gratuitously states that PSL can be used for the care of a mental or physical illness, injury, or health condition. Not surprisingly, it also restates that leave under the new PSL law is not the same as New York’s COVID-19 leave law.
If you have questions about Paid Sick Leave, reach out to a member of our team. We’d be happy to help you through implementing it in 2021. Happy New Year!