New York State and New York City have recently issued guidance and documentation on the New York State Paid Sick Leave Law (the State Sick Leave Law) and amended New York City Earned Safe and Sick Time Act (the NYC Sick Leave Law), respectively. Both the State Sick Leave Law and City Sick Leave Law took effect September 30, 2020, with key provisions, including the ability to use increased leave amounts, beginning January 1, 2021.
STATE SICK LEAVE LAW
New York State published an overview of legal requirements and guidance in the form of Frequently Asked Questions. These materials generally restate the text of the State Sick Leave Law, with the following additional guidance:
Coverage, Eligibility for Sick Leave, and Accrual of State Sick Leave
- All private sector employers with employees in New York State are covered by the State Sick Leave Law.
- Employees only accrue sick leave after working 30 hours, and employees are covered by the State Sick Leave Law “only for the hours when they are physically working in New York State, even if the employer is physically located outside New York State.” In other words, an employer’s obligations pursuant to the State Sick Leave Law only begin once an employee works 30 hours within New York State in a calendar year. Moreover, as with the NYC Sick Leave, the location of the employee is the relevant inquiry for purposes of tracking an employee’s entitlement to sick leave.
- To determine the number of employees an employer has and thus how much sick leave the employer must offer, the employer must “count the total number of employees across all locations” during the 12-month period from January 1 to December 31. The guidance does not specify whether the employer should only count employees located within New York State.
- An employer can set any 12-month period as its calendar year for the purposes of calculating use and accrual of sick leave.
- For nonexempt employees paid on a non-hourly basis (such as individuals paid a commission, by the piece, or flat rate), accrual of sick leave is measured by actual time spent performing work.
- As with the NYC Sick Leave Law, an employer can frontload sick leave by providing an employee’s annual sick leave on the first day of the calendar year set by the employer. If an employer frontloads sick leave, they cannot reduce sick leave based upon the sick leave hours an employee would actually accrue if the employer did not frontload sick leave.
- Similarly, an employer can frontload sick leave for part-time employees by calculating their anticipated annual work hours and frontloading one hour of leave for every anticipated 30 hours worked; however, an employer who frontloads in this way must track an employee’s annual hours worked and accrual of sick leave in the event they worked more than anticipated.
Provision and Use of Sick Leave
- There is no specified advanced notice requirement for an employee to use sick leave, but an employee must request to use sick leave either orally or in writing.
- Sick leave provided under the State Sick Leave Law is separate and apart from certain other leaves, such as New York State COVID-19 Paid Sick Leave (Read our LawFlash for more information on that leave) and New York Paid Family Law leave.
- Bereavement is not a permissible use of sick leave.
- Employees must be paid sick leave at their regular rate of pay, and employees paid at more than one rate of pay must be paid at the weighted average of their rates of pay. Sick leave does not trigger overtime requirements.
- Employers that frontload the full allotment of sick leave do not need to carry over unused sick leave at the end of the year and, as the employer is guaranteeing employees all legally required sick time at the start of the next year, any unused time can be forfeited without pay at the conclusion of the year.
- Unless the employer frontloads the full amount of sick leave, accrued and unused sick leave must be carried over to the next calendar year. Employers can limit the amount of sick leave an employee can take in a year to 56 hours for employers with 100 or more employees and 40 hours for employers with 99 or fewer employees.
- Employers are not required to pay employees for unused sick leave at the end of an employment relationship. Seasonal employees “who maintain an ongoing employment relationship with their employer” must be allowed to maintain accruals through breaks in their employment.
Interaction with Other Leave Laws and Collective Bargaining Agreements
- For employees based in New York City, the State Sick Leave and NYC Sick Leave can be provided from a single “bucket” of leave and all sick time under both laws can run concurrently such that employees do not get separate leave entitlements under these laws.
- Westchester County and New York City may continue to enforce their paid sick leave laws (e.g., the NYC Sick Leave Law), although most provisions of the Westchester County sick and safe leave laws shall sunset once the State Sick Leave Law is fully effective on January 1, 2021.
- An employer does not need to allow an employee to take sick leave concurrently with New York Paid Family Leave, but may permit employees to choose to run these leaves concurrently. Employees may request to run these leaves concurrently to receive their full wages for all or part of the leave.
- Collective bargaining agreements entered into on or after September 30, 2020 may provide for alternative sick leave so long as they expressly reference the State Sick Leave Law (codified at New York Labor Law Section 196-b) and specifically identify comparable benefits offered by the employer.
AMENDED NYC SICK LEAVE LAW
New York City published an updated Notice of Employee Rights (in English and Spanish). The updated Notice of Employee Rights must be posted in the workplace and distributed to employees where the employer has 100 or more employees, and also to domestic workers, by January 1, 2021. The updated Notice of Employee Rights provides notice that, effective January 1, 20201, employers with 100 or more employees in New York City must provide 56 hours of sick leave per calendar year (up from 40 hours). Otherwise, the updated Notice of Employee Rights restates provisions of the NYC Sick Leave Law.
New York City also published guidance in the form of updated Frequently Asked Questions. The guidance generally restates the text of the NYC Sick Leave Law, with the following additional context as to the amended provisions:
- To determine the number of employees an employer has and thus how much sick leave the employer must offer, the employer must “count all employees who work for pay on a full-time, part-time, seasonal, or temporary basis.” The guidance further provides that “the total number of employees should include employees at all locations in New York City as long as the multiple locations collectively employ at least five employees.”
- Employees are covered by the NYC Sick Leave Law if they are employed in New York City, no matter where the employee(s) live and where the employer is located. As with the State Paid Sick Leave Law, employers must track accrual based on “the hours that the employee spends working in New York City.” Employees who telecommute are covered for the hours they are physically working within New York City, regardless of the location of the employer.
- Employers must provide the Notice of Employee Rights to an employee “once that employee begins to perform work for that employer while physically located in New York City.”
- Employers must tell employees “how much safe and sick leave they have accrued, used, and have available for use” on pay stubs or other documentation provided to employees each pay period. The guidance does not provide any other context or information as to how employers can satisfy this requirement. New York City has otherwise stated that “employers that could not operationalize the documentation requirement by September 30, 2020 but are working in good faith on implementation will have up to November 30, 2020 to ensure compliance without a penalty.”
- To the extent an employer requires documentation of the need for sick leave after an employee uses more than three consecutive workdays of sick leave, an employer must “reimburse employees for fees charged by health care providers for sick leave documentation the employer requested.”
ANALYSIS
Employers should review their sick leave policies to ensure they provide the required amount of leave and remove provisions from prior policies that no longer are compliant with these laws, such as the previously permissible requirement that employees work for 120 days before becoming eligible for New York City sick leave. Employers should also consider adding language to their current sick leave policies to make clear that State Sick Leave and NYC Sick Leave run concurrently with each other and that employees are not entitled to separate allotments of leave under each law.
Employers may also need to adjust their policies to account for expanded leave benefits and should consider taking steps to identify and track the location of employees working remotely. For example, employees based elsewhere who are now living in New York State and/or New York City while working remotely during the COVID-19 pandemic should be treated as being eligible for sick leave under the leave laws applicable to their location. Employers should also distribute the updated Notice of Employee Rights to employees by January 1, 2021 to the extent they have 100 or more employees in New York City.
Finally, employers should consider amending wage statements or developing written supplemental notices to employees to note the amount of sick and safe leave accrued and used by an employee during a pay period, and the employee’s total balance of sick and safe leave.
CONTACTS
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
New York
Leni Battaglia
Kimberley Lunetta
Melissa Rodriguez
Douglas Schwarz
Kenneth Turnbull