Dear Clients and Friends:
We write to remind you of several upcoming deadlines.
We write to remind you that New York State’s Paid Sick Leave statute will be fully in effect on January 1, 2021.
New York State has enacted a Paid Sick Leave Law that applies to all employers regardless of size. It applies to all employees whether full-time, part-time or temporary. The accruals for employees under the new law began on September 30, 2020, and employees may begin taking leave on January 1, 2021.
The New York State Department of Labor has issued a Frequently Asked Questions document that can be found here:
https://www.ny.gov/sites/ny.gov/files/atoms/files/PSL_FAQ_ PaidSickLeaveFAQ.pdf. The FAQ addresses issues such as accrual for part-time employees, payment for tipped employees, and how seasonal employees are treated.
Required Time Accrual and Availability
For Employers with 1-4 employees and a net income of $1 million or less per year, the Employer must provide 40 hours of
unpaid sick leave per calendar year.
For Employers with 1-4 employees and a net income greater than $1 million per year, and for employers with 5-99 employees, the employee will earn up to 40 hours of paid sick leave per year.
For Employers with 100 or more employees, the employee will earn up to 56 hours of paid sick leave per year.
The Employer may choose to have employees earn sick leave at a rate of 1 hour of sick leave for every 30 hours of work, or may choose to provide 100% of the annual sick leave allotment on January 1 of each year. If the employer chooses to provide the leave up front, the employer may not reduce the amount of leave available during the year (for instance if an employee drops to per diem or part time work).
All employees (full-time, part-time, per diem, or other) are eligible for leave under the law.
Required Use of Paid Sick Leave
Employers may set minimum increments of time for sick leave use, but that minimum increment may not exceed 4 hours of time. Thus, for example, an employer could allow employees to take one hour at a time, but could not require employees to take paid sick leave in full day increments.
Paid sick leave may be taken for any of the following reasons:
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- for a mental or physical illness, injury, or health condition of such employee or such employee’s family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that such employee requests such leave;
- for the diagnosis, care, or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventive care for, such employee or such employee’s family member; or
- for an absence from work due to various issues related to domestic violence which are spelled out in detail in the statute.
“Family member” includes an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent; and the child or parent of an employee’s spouse or domestic partner.
“Parent” includes a biological, foster, step- or adoptive parent, or a legal guardian of an employee, or a person who stood in loco parentis when the employee was a minor child. “Child” includes a biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.
Required Carryover
Employees may carry over the paid sick leave from one year to the next, but can only
use a maximum amount each year.
For Employers with fewer than 100 employees, the employee may use up to 40 hours of paid (or unpaid) sick leave per year.
For Employers with 100 or more employees, the employee may use up to 56 hours of paid sick leave per year.
Paid sick leave does not need to be paid out on termination of employment.
Amount Paid for Paid Sick Leave
Employees must be paid at their regular rate or the state minimum wage
whichever is greater. Paid sick leave does not count toward hours worked for overtime purposes.
Existing Employer Plans
To the extent an employer already provides paid sick leave or a combined paid time off benefit to employees, the employer may keep that plan in place of the statutory sick leave
if and only if the provisions of the plan are at least as generous at the statute for the following areas:
- Time accrued and available
- Reasons for and use of time accrued
- Carryover from year to year
Next Steps
Employers with no existing sick leave must draft their policy and work with their payroll providers to comply with the statute.
Employers with existing plans need to evaluate their paid sick leave or paid time off programs to determine if they meet the minimum standards of the statute. Employers should work with counsel to modify their plans as needed.
In particular, Employers with existing plans may need to modify waiting periods, approval processes, and carryover policies.
Unionized employers need to evaluate whether their sick leave benefits under their Collective Bargaining Agreements (CBA) are at least as generous as the statute. In some cases, the CBA may provide for other or different benefits than under the statute. The statute provides that an employer and union may negotiate for other or different benefits provided that the CBA specifically acknowledges this fact. Unionized employers are encouraged to work with counsel to include appropriate language in the CBAs.
We Wish You a Happy and Healthy Holiday Season! Remember—NY Minimum Wage for Non‑Exempt Employees and NY Minimum Weekly Wage for Exempt Employees both increase on December 31, 2020.
Mark Your Calendar: Please join us on January 6, 2021 at noon via Zoom for a quick legal update on what employers should know going into 2021. SHRM and HRCI Credit will be available.
For a printable version of this Client Alert,
click here.
