On October 20, 2020, the NY Department of Labor (DOL) released long-awaited guidance and FAQs on the new paid sick leave law that went into effect on September 30, 2020, for all private-sector employers.
Important note: Federal, state, and local government employees are NOT covered, but employees of charter schools, private schools, and not-for-profit corporations are covered.
The guidance addresses:
- The amount of paid (or unpaid) sick leave required based on employer size;
- Accrual rate, and option for annual allotment;
- Covered employers and eligible employees, including remote workers;
- Permitted uses for leave (beginning January 1, 2021);
- Leave increments and pay rate (including tipped workers and employees who earn different pay rates for different types of work);
- Impact of existing leave policies (e.g., PTO, sick days) and collective bargaining agreements;
- No retaliation provisions; and
- Recordkeeping requirements.
Although the guidance and FAQs provide some clarity, there are still unanswered questions that require further evaluation. For example, in determining employee count, the FAQ document states: “To determine the total number of employees, “calendar year” means the 12-month period from January 1 to December 31. For other purposes, including use and accrual of leave, employers may set a calendar year to mean any 12-month period.” The guidance and FAQs do not explicitly state if employers use their employee count from the previous calendar year and/or the impact for employers who have fluctuations in employee count that may take them above or below the thresholds (e.g., 100 employees) at certain times in the year. Until further guidance is provided, the conservative approach would be to provide the accrual required for the maximum number of employees an employer has at any point in the calendar year. Presumably, employers would look at the previous calendar year to set the accrual maximum.
The guidance and FAQs also do not address if multi-state employers count total employees within the Company, or only employees located within NY state for determining employer size/coverage. There is an FAQ addressing multiple locations within NY state, but not multiple locations in multiple states. The FAQ also indicates that employees are covered by the law only for the hours when they are physically working in NY state.
Additionally, the guidance and FAQs are silent with respect to an employer’s ability to require documentation to support an employee’s use of sick leave, under this law; however, the FAQ document does state an employer may take disciplinary action, up to and including termination, against an employee who uses leave for purposes other than those provided for under the law, or who lies to their employer in connection with taking such leave.
While the guidance and FAQs are a helpful starting point the state has yet to release final regulations.
HR Works will continue to monitor information provided by the state and will be developing policy language to assist clients in meeting these new requirements. Virtual Helpline and HR Strategic Services (HRSS) clients may contact their HR Works representative with questions or to discuss policy updates.
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