On September 30, 2020, employees began accruing leave under New York State’s new Paid Sick Leave law (“PSL”) which may be taken for covered uses starting on January 1, 2021. As we alerted you in prior communications, the PSL left some ambiguity in how it would be applied. [CLICK HERE for our April 3 and September 30 eAlerts.]
The New York Department of Labor recently issued FAQs that attempt to provide guidance to employers. Both New York-based and out-of-state employers should review the full FAQs closely for guidance: HERE
In some ways, the FAQs raise more questions than they answer. Here are some key points that the FAQs address:
The FAQs restate the PSL provisions on determining the number of hours of annual paid sick leave provided to employees based on employer size in a calendar year. Under the FAQs, “calendar year” for purposes of calculating employer size is the 12-month period from January 1 to December 31. Employers may designate a different 12-month period as the “calendar year” for purposes of determining employee accrual and use of leave. Although the FAQs confirm that an employer must combine the employee populations of all of its New York State locations to calculate headcount, they do not address whether out-of-state employees should be included in that calculation. Employers should work with counsel to determine coverage in this grey area.
APPLICATION TO TELECOMMUTERS/OUT OF STATE EMPLOYERS:
The FAQs provide: "Employees who telecommute are covered by the 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."
Although this FAQ is not fully clear, our takeaway is that, regardless of where an employer is located (in or out of New York), an employee who works from home outside of New York only needs to accrue sick time based on the hours physically worked in New York. Given the number of employees who have turned to teleworking during the COVID-19 pandemic, this distinction may significantly impact the amount of paid sick leave employers are obligated to pay.
As a practical matter, since this could be impossibly complicated to track for employees who sporadically travel into New York for work, employers may choose to accrue sick time and treat such workers as if they were fully working in a New York office. In addition, employers should consider that other sick pay laws (New York City and New Jersey, for example), may come into play for a particular remote worker, leading to similar sick pay coverage anyway. If employers have any doubt on how much sick pay to provide for certain employees, they should consult with counsel.
The FAQs also assert that employers may not require an employee to telecommute or work from home instead of taking sick leave, but can offer that option.
RATE OF PAY:
The FAQs provide that sick leave is to be paid at an employee’s regular rate of pay (or the applicable minimum wage, whichever is greater), even if the employee otherwise would have been working overtime or receiving tips during the period of leave. If the employee has more than one pay rate for different tasks, the applicable rate of pay for sick leave would be a weighted average of those rates. An employer who normally pays a tipped wage allowing for a tip credit may not do so for paid sick leave.
CARRYOVER AND MAINTENACE OF ACCRUAL:
Although the PSL requires employers to allow carryover of unused time from one year to the next, the FAQs make clear that employees may not take more leave than their entitlement for a given calendar year. The carryover is intended to allow employees whose employers do not frontload the full annual allowance to have time immediately available at the beginning of the year, but it is required even for those employers who front load time. The FAQs also provide that employees must keep accrued time if they change positions, roles or locations within the company and during seasonal breaks of employment for seasonal employees who maintain an ongoing employment relationship with the employer.
NOTICE AND REASONS FOR LEAVE:
Pursuant to the FAQs, there is no minimum notice period for an employee to request sick leave (foreseeable or unforeseeable) provided that there is an oral or written request prior to use. Employees may request and take sick leave for any mental or physical illness, injury or health condition regardless of whether they have been diagnosed or require medical care, as well as for preventative care. This includes doctor, dentist, eye doctor and other routine appointments without reference to an underlying condition. Employees may not use sick leave for bereavement. Managers should be trained on this requirement to provide sick leave without advance notice.
The FAQs also refer to “safe leave” – a concept included in New York City’s and Westchester’s paid sick leave laws but not expressly included in the PSL.
There is a particularly employer-friendly FAQ which states that employers may take disciplinary action, up to and including termination, where an employee misuses sick leave or lies to the employer in connection with taking such leave.
DONATION OF TIME:
The FAQs provide that employers may permit employees to donate unused sick leave but that such action must be completely voluntary.
INTERACTION WITH PAID FAMILY LEAVE:
The FAQs acknowledge that an employee may wish to take paid sick leave at the same time as paid family leave in order to receive their full salary for all or part of the leave. Such use requires employer permission. Employers should determine their policy and procedure for overlapping family and sick leave.
INTERACTION WITH OTHER LAWS:
The FAQs make clear that paid leaves under the PSL are independent of – and must be paid in addition to – any other applicable Federal or State leave entitlements, including other leave provided for periods of COVID-19 quarantine. Local laws (such as New York City’s and Westchester’s paid safe and sick leave laws) are not cumulative, but remain enforceable to the extent they meet or exceed the minimum requirements of the PSL.
As noted in our prior alert, the PSL left questions regarding individual liability under the law. The FAQs state that employers are jointly and severally responsible for failure to provide paid sick leave and include “any person, corporation, limited liability company, or association”. The FAQs note that failure to pay sick leave is equivalent to the failure to pay wages, subjecting an employer to civil and administrative actions and criminal penalties, including the full amount of wage underpayment, liquidated damages and civil penalties up to double the total amount due.
For New York employers with employees who work in New York City, please be advised that New York City has also published a new sick pay notice, which can be found here: HERE