New York Department of Labor Releases Paid Sick Leave Guidance

New York State's Department of Labor (NY DOL) has issued Paid Sick Leave Frequently Asked Questions (FAQs) providing guidance on numerous leave-related topics including accruals, permitted uses, eligibility, and leave increments regarding the state's sick and safe leave law. Here, we recap the law's provisions and highlight information from the NY DOL's FAQs.

As discussed in our April, May, and September advisories, New York's sick and safe leave law requires employers with five or more employees to provide paid sick and safe leave (SSL), and those with fewer than five employees and a net income of $1 million or less to provide unpaid SSL each calendar year. Eligible employees began accruing SSL on September 30, 2020, and may utilize earned SSL starting January 1, 2021.

Amount of Leave and Definitions

SSL benefits are available to employees in New York as follows:

The FAQs reiterate that when counting employees, a "calendar year" refers to the 12-month period from January 1 through and including December 31. For all other purposes including use and accrual of leave, employers may set a calendar year to mean any regular and consecutive 12-month period.

The FAQs also instruct that if an employer has multiple business locations within New York State, the employer must count the total number of employees across all locations to determine whether it must provide paid leave under the sick and safe leave law.

Eligibility 

Employees are immediately eligible to accrue leave under the safe and sick leave law, and there is no minimum period of employment before an employee can use SSL.

Accruals

Beginning September 30 or their first day of employment, whichever is later, employees are eligible to accrue one hour of SSL for every 30 hours worked. SSL only accrues for "hours worked," including on-call, training, and compensable travel time, and not for any hours spent using SSL time or any payments that are not for hours worked, like bonuses or subject-to-call time.

Instead of tracking hourly accruals, employers may elect to front-load the total number of required SSL hours at the beginning of each calendar year.

• For example, an employer with 100 or more employees may satisfy the sick and safe leave law by providing each employee with 56 hours of paid leave available for use as of January 1, 2021. Employers may choose this alternative to avoid potential recordkeeping problems in calculating employees' accrued SSL.

Employers may choose to front-load SSL hours to part-time employees based on the hours they are anticipated to work. If employers front-load fewer than 40 hours to these employees, they must still track the employee's hours worked and accrual of SSL because the part-time employee may work more hours than anticipated. Should that happen, an employee must be permitted to accrue one hour of leave for every 30 hours worked until the total amount of front-loaded plus accrued SSL in the calendar year equals 40 hours, and must be permitted to use up to 40 hours if accrued.

Furthermore, an employer who front-loads fewer than 40 hours must allow employees to carry over up to 40 hours of unused SSL into the new calendar year, in addition to front-loading the amount of time the employer expects the employee to earn in the new calendar year.

Permitted Uses, Leave Increments, and Work From Home

Starting on January 1, 2021, employees may use accrued leave for certain enumerated reasons impacting them or their family member. We provide a comprehensive explanation of the permissible uses in our April advisory.

The sick and safe leave law does not define a notice requirement for the use of leave, and the FAQs merely provide that there must be an oral or written request prior to using the accrued SSL.

Additionally, the FAQs state that employers may set reasonable minimum increments of four hours (or less) for use of SSL. Employers may thus, for example, deny a request for two hours of paid SSL and require the employee to use four hours.

The FAQs also provide that:

• An employee's eligibility for SSL is not dependent on reporting to law enforcement or a criminal conviction;
• Employees may use SSL when they require treatment for a condition or for preventive medical care and thus for routine appointments with doctors and dentists; and
• Although the sick and safe leave law does not classify bereavement as a permissible use, employers must provide SSL for a mental or physical illness, injury, or health condition, regardless of diagnosis or required medical care, and preventative care for the same.

In the age of remote work, the FAQs do make clear that employers can offer employees the options of working from home or telecommuting instead of taking SSL. Employees who voluntarily agree to such an alternate work arrangement will retain the paid or unpaid SSL that they have accrued. Notably too, the FAQs provide that employees who telecommute are covered by the safe and sick leave law for the hours when they are physically working in New York State, even if their employer is physically located outside the state.

No Payout on Separation and Carryover

The FAQs confirm that employers are not required to pay employees for unused SSL at the end of an employment relationship unless required by another agreement or policy, including the employer's own written leave policy.

Additionally, unused SSL does not expire at the end of a calendar year and must be carried over to the next calendar year. However, employers may limit employee use to the number of hours that the employee is entitled to use within any calendar year (i.e., 56 hours for employers with 100 or more employees and 40 hours for employers with 99 or fewer employees).

Although an employee may thus have a leave balance in excess of the amount they are permitted to use, they are positioned to immediately use leave in the new calendar year rather than having to wait to accrue leave. Employers may also permit employees to donate unused SSL to other employees as long as the policy is entirely voluntary.

Employer Liability

Significantly, an employer's failure to provide employee benefits such as SSL is equivalent to a failure to pay employee wages, and an employer may be subject to civil/administrative actions and/or criminal penalties, including but not limited to an order assessing the full amount of the wage underpayment, 100 percent liquidated damages, and civil penalties in an amount up to double the total amount to be due.

Furthermore, the FAQs emphasize that nonprofit employers are not exempt and must comply with the sick and safe leave law and make clear that the law imposes joint and several liability on joint employers for noncompliance.

Interaction With Other Leave Laws

Existing city- and county-level sick and safe leave laws (e.g., the New York City Earned Safe and Sick Time Act, the Westchester Earned Sick Leave Law, and the Westchester Safe Leave Time Law) will not be altered by the state law to the extent that they meet or exceed the standards and requirements set forth by the state.¹

As detailed in our October advisory, New York City recently amended its statute for consistency with the state's sick and safe leave law, including in how time is accrued and which businesses are covered. The FAQs provide that New York City may continue to enforce its statute to the extent its provisions meet or exceed the state's sick and safe leave law.

The FAQs also establish that the state's sick and safe leave law "operates independently from other state and federal leave requirements and must therefore be paid in addition to any other state or federal leave entitlements." Nevertheless, the FAQs make clear that employees can only use SSL during periods of New York Paid Family Leave (PFL) if the employer allows it.

• For example, an employer may permit an employee to take three days of paid SSL leave and two days of PFL such that the employee receives their full salary for all or part of the leave. Employees cannot receive more than their full wages while receiving PFL benefits. 

Notably, the NY DOL remains vague on the interplay between SSL and New York's COVID-19 Quarantine Leave Law, providing that whether or not employees may use SSL when their employer has been ordered to close temporarily due to a public health emergency is "fact specific depending on the type of health emergency, including the risk of contagion, and other health considerations" and that employees may use accrued SSL "for preventive care of a mental or physical illness, injury or health condition."

Additional information on New York's Quarantine Leave Law can be found in our March (here, here, and here) and April 2020 advisories (here).

Collective Bargaining Considerations

Collective bargaining agreements (CBAs) entered into on or after September 30, 2020, may provide for different leave benefits as long as they are "comparable" to those required by the sick and safe leave law. The FAQs provide that CBAs must specifically reference Labor Law Section 196-b, and the NY DOL recommends that the comparable benefits be explicitly identified and labeled in CBAs to avoid confusion or misunderstanding.

Moving Forward

Employers should review their existing sick and safe time policies and general PTO polices to ensure compliance with their legal leave obligations in advance of January 1, 2021. Further, employers will need to train their managers to ensure that they are aware of the new legal obligations and the need to work with human resources to handle requests, track usage, and maintain records of SSL provided to each employee.

Employers can find additional information on New York State's dedicated SSL website.

FOOTNOTE

1  The FAQs also provide that domestic workers are eligible for leave under the SSL depending on the size of their employer, in addition to leave under the State Domestic Worker Bill of Rights. The FAQs further provide that benefits available to domestic workers in Westchester County (40 hours regardless of employer size) remain available.