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NYS Department of Labor Posts Guidance and Frequently Asked Questions Regarding the Paid Sick Leave Law
The New York State Department of Labor (NYSDOL) recently posted Guidance and Frequently Asked Questions (FAQs) on its website regarding employers’ obligations under the New York State Paid Sick Leave Law (NYS PSLL), section 196-b of the Labor Law.
As previously reported here, covered employees began to accrue leave at a rate of one hour for every 30 hours worked on September 30, 2020. Employees may not start using the accrued leave until January 1, 2021, so employers should review their leave policies to make sure they comply with the NYS PSLL before the end of this year.
Employers in New York City whose policies were written to comply with the New York City Earned Sick and Safe Time Act (NYC ESSTA) should also review their policies as the NYC ESSTA was recently amended to align with requirements of the NYS PSLL, as reported here.
The amount of paid sick leave that employers are required to provide under both the NYS PSLL and the amended NYC ESSTA depends upon the size of the employer: fifty-six (56) hours per year for employers with 100 or more employees and forty (40) hours per year for employers with 99 or fewer employees.[1] Like the NYC ESSTA, leave under the NYS PSLL can be used for diagnosis, care, treatment, or preventative care for the employee’s, or the employee’s family member’s, mental or physical illness, injury, or health condition, or for “safe” leave related to domestic violence, family offense, sexual offense, stalking, or human trafficking that affects the employee or the employee’s family member.
The Guidance and FAQs clarify several aspects of the law, including the following:
Covered Employees
All private sector workers in New York State are covered by the NYS PSLL. To determine the number of employees a business has, an employer should look at its number of employees in the prior calendar year, from January 1 to December 31. All employees, including part-time and temporary employees, are counted in determining employer size and are eligible to accrue paid leave.
The NYSDOL explains that an employer with multiple locations within NYS “would count the total number of employees across all locations.” The FAQs provide the following example: “if there were 3 employees who worked at one location, and 4 employees who worked at another location, the employer would have 7 total employees, and would be required to provide up to 40 hours of paid sick time in each calendar year, for each employee.”
The NYS DOL has not, however, addressed whether an employer must count employees who are located outside of New York State.
Leave Accrual
Under the NYS PSLL, like the NYC ESSTA, employees earn one hour of paid sick leave for every thirty (30) hours worked, up to forty (40) or fifty-six (56) hours of leave in a 12-month period (depending upon employer size). The 12-month period can be any 12-month period selected by the employer, such as a fiscal year, and does not have to be a calendar year.
Employees do not earn sick leave when they are being paid but not working, such as when they are using paid sick leave or Paid Family and Medical Leave.
Employers may “front load” sick leave and provide all of the required leave at the beginning of a year, rather than requiring employees to accrue the leave over time. Employers who “front load” still must allow employees to carry over any unused leave into the next 12-month period, but employers may limit the number of hours an employee can use each year to the number of hours the employee is entitled to accrue in a year (i.e., fifty-six (56) hours for employers with 100 or more employees and forty (40) hours for employers with 99 or fewer employees). The FAQs acknowledge that “[t]his may result in an employee maintaining a leave balance in excess of the amount they are permitted to use in any calendar year.”
Usage
There is no waiting period to either accrue or use sick leave. Newly hired employees are immediately eligible to accrue leave under the law and can use that leave as soon as it is accrued. As reported here, the NYC ESSTA has been amended to eliminate any waiting period.
An employee may use sick leave to attend an appointment with a health care provider even if the employee is not sick, as sick leave can be used for preventative care.
Employees may use safe leave under the NYS PSLL in connection with domestic violence, a family offense, a sexual offense, stalking, or human trafficking and an “employee’s eligibility for safe leave is not dependent on reporting to law enforcement or a criminal conviction.”
While bereavement leave is not one of the reasons for which leave can be used, the FAQs note that leave can be used for “mental or physical illness, injury, or health condition, regardless of whether they have been diagnosed or require medical care, as well as for the preventative care for such illnesses, injuries, or conditions.” Therefore, an employee could use paid leave for depression resulting from the death of a family member, such as to consult a mental health care professional.
The NYS PSLL does not specify how much notice an employee must provide before using paid sick time, but the FAQs state that an employee must make “an oral or written request to the employer prior to using the accrued sick leave unless otherwise permitted by the employer.”
Collective Bargaining Agreements
Existing Agreements
The NYS PSLL applies to employers with collective bargaining agreements (CBAs) that pre-date the September 30, 2020 effective date of the law. The obligations of employers with existing CBAs are the same as the obligations of employers who already have sick leave policies. The “Paid Sick Leave Details” section of the NYSDOL website (which is separate from the FAQs) states
If an employer, including those covered by a collective bargaining agreement, has an existing leave policy (sick leave or other time off) that meets or exceeds the accrual, carryover, and use requirements, this law does not present any further obligations on that employer.
(emphasis added.) This means that an employer with an existing CBA will only have to increase the amount of paid sick days it provides to employees if the CBA provides less total paid time off than required by the NYS PSLL, or places limitations on the use of that leave beyond what is allowed under the NYS PSLL. The employer can take into account vacation time, personal days, or unspecified PTO, as long as those other types of paid leave can be earned, used, and carried over in the same manner as the sick leave required by the NYS PSLL.
For example, if the CBA of an employer with 100 or more employees provides employees with 40 hours (5 days) of paid sick leave and two paid personal days, and both the sick leave and the personal days can be used in the same manner and for the same reasons as leave required by the NYS PSLL, the employer would not have to provide additional paid leave.
If, however, the CBA says that the five (5) sick days can only be used for the employee’s own health (and not to care for a family member), or that the personal days cannot be used during the employer’s busy season, the leave provided in the CBA would not meet the requirements of the NYS PSLL and the employer would have to modify those provisions or provide additional leave.
Agreements Entered Into On or After September 30, 2020
CBAs entered into on or after September 30, 2020, may provide for different leave benefits, but only if the CBA (i) includes a specific waiver that references section 196-b of the Labor Law, and (ii) provides benefits that are “comparable to” the benefits required by the NYS PSLL.
The FAQs state that the NYS “DOL recommends that the ‘comparable benefits for the employees’ be explicitly identified and labeled as such in the agreement to avoid confusion or misunderstanding.” Therefore, the CBA should not just state that a comparable benefit is being provided; it should actually describe what that comparable benefit is.
The NYSDOL does not provide any specific examples of “comparable benefits,” but does state (in the “Paid Sick Leave Details” section of the website) that it
considers leave time which has fewer restrictions on its use to be comparable to that required by this law, regardless of the label of such leave (e.g., annual or vacation time), and multiple leave benefits which meet the use requirements of this law may be combined to satisfy the “comparable benefit” requirement.
Parties to a CBA, therefore, may use different types of paid leave (such as sick leave, vacation, and personal days) to meet the comparable benefit requirement.
The NYC ESSTA also allows parties to a CBA to waive the requirements of the law if the CBA includes an express waiver and a comparable benefit. What is considered a “comparable benefit” under NYC ESSTA, however, may not qualify as a comparable benefit under the NYS PSLL. Section § 20-916 of the rules governing the NYC ESSTA states “[c]omparable benefits shall include but are not limited to, vacation time, personal time, safe/sick time, and holiday and Sunday time pay at premium rates” (emphasis added). By contrast, the NYS DOL website does not mention premium pay for holidays or Sundays and states only that it “considers leave time which has fewer restrictions on its use to be comparable to that required by this law.”
Sick Leave and Remote Work
The FAQs state that “[e]mployees 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.”
It is not clear from this FAQ whether an employer located outside of New York would have to provide sick leave under the NYS PSLL to an employee who sometimes works remotely in New York, nor whether that leave would be paid or unpaid. As noted above, the NYS DOL has not addressed whether an employer must count employees who are located outside of New York State.
The FAQs do state that an employer cannot require an employee to work remotely instead of using paid sick leave.
Relation To Other Leave
The NYS PSLL “operates independently from other State and Federal leave requirements and must therefore be paid in addition to any other State or Federal leave entitlements.” The FAQs specify that leave under the NYS PSLL is “separate and additional to the quarantine leave for employees subject to a precautionary or mandatory order of quarantine or isolation related to COVID-19.”
An employee taking Paid Family Leave (PFL) can only choose to use paid sick leave under the NYS PSLL at the same time “if the employer allows it.” While “[t]aking sick leave at the same time as PFL may allow the employee to receive their full salary for all or part of the leave . . . an employee cannot receive more than their full wages while receiving PFL benefits.”
The NYS PSLL FAQs do not explicitly address whether leave under that law runs concurrently with leave under the NYC ESSTA or the Westchester County paid sick leave law. As noted above, however, the FAQs do state that employers with existing leave policies will not be required to provide additional paid leave if their policies meet the accrual, carryover, and use requirements of the NYS PSLL.
Therefore, once employers who have leave policies that comply with the NYC ESSTA or Westchester County law update those policies to comply with the NYS PSLL, the leave will run concurrently. In addition, the FAQs for the NYC ESSTA, available here, state that “[a]n employee’s use of safe and sick leave may be counted toward concurrent leave under federal or state law, such as the FMLA.”
Sick Leave During Business Closure
It is not clear whether an employee may use the paid sick leave provided by the NYS PSLL during a business closure caused by a government shut-down order, such as the orders issued by Governor Cuomo during the COVID-19 pandemic. The FAQs merely state that whether an employee may use paid sick leave when a business is closed due to a public health emergency “would be fact specific depending on the type of health emergency, including the risk of contagion, and other health considerations.”
Next Steps
While the guidance and FAQs provide some clarity, many questions about the NYS PSLL remain. We will provide additional information as it becomes available.
Employers should review their current sick leave policies to determine whether the policies comply with the new law. Employers should also train supervisors and managers on the requirements of the law. Employers who are negotiating collective bargaining agreements should take the requirements of the new law into account when negotiating leave provisions.
Please do not hesitate to contact any of our attorneys if you have any questions or would like assistance reviewing your company’s sick leave policies.
[1] Employers with four or fewer employees and under $1 million in net income in the previous tax year must provide up to forty (40) hours of unpaid leave.