New York State has issued guidance on the New York State Paid Sick Leave Law (“NYSPSLL”), which was enacted as part of Governor Cuomo’s 2021 comprehensive budget bill. As we have previously reported, the law requires employers to provide up to 40 or 56 hours of annual sick leave (depending on their size and net income). The new NYSPSLL applies to all private employers and employees and allows employees to begin accruing sick leave as of September 30, 2020 and use sick leave as of January 1, 2021.
The New York State Department of Labor has released a website entitled, “New York State Paid Sick Leave FAQ,” which provides an overview of the NYSPSLL and questions and answers regarding the new law (the “Guidance”). The website can be found here: https://www.ny.gov/sites/ny.gov/files/atoms/files/PSL_FAQ_PaidSickLeaveFAQ.pdf
The Guidance provides clarification on several areas of the NYSPSLL, including:
Eligibility: The Guidance defines an employee as “any person employed for hire by an employer in any employment” and makes clear that the law applies to part-time and seasonal workers. In addition, 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.
The Guidance also provides that where an employer has multiple business locations within New York State, the employer would count the total number of employees across all locations to determine the amount of sick leave employees are entitled to.
Permitted Uses: According to the Guidance, employees may use sick leave for doctor, dentist, eye doctor or other routine appointments when they require treatment for a condition or for preventive medical care. Permissible reasons to use accrued sick leave does not include a period of bereavement. However, employers must provide sick leave for a 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.
Rate of Pay: Employees are required to be paid their normal pay for leave time under the law. When employees are paid on a non-hourly basis, accrual of sick leave is measured by the actual length of time spent performing work.
As per the Guidance, employers are not required to pay employees for lost tips or gratuities, but employers may not take a tip credit for leave time and must pay the employee their normal rate of pay or the applicable minimum wage, whichever is greater.
Further, employees who are paid at more than one rate of pay must be paid for leave under the law at the weighted average of those rates. The weighted average is the total regular pay divided by the total hours worked in the week.
Alternative Accrual System: The Guidance provides that employers may frontload paid sick leave for a part-time employee based on the hours the employee is anticipated to work in the upcoming year at an amount that equals at least the amount the employee would have received if the employee was granted one hour of leave for every 30 hours worked. Unless an employer frontloads all 40 or 56 hours for a part-time employee, the employer continues to be obligated to track the part-time employee’s hours of work after the leave is frontloaded.
The Guidance provides that employers must continue to track an employee’s hours so that the employer can allow the employee to accrue leave if the employee works more hours than initially anticipated by the employer.
Other Leave Laws: Recently, New York City amended its New York City Paid Safe and Sick Leave Law to conform more closely with the new NYSPSLL. According to the Guidance, New York City may continue to enforce the provisions of the New York City Paid Safe and Sick Leave Law to the extent that such provisions meet or exceed the end standard or requirements for minimum hour and use set forth in the New York State Paid Sick Leave Law.
Note that the New York City law differs from the NYSPSLL in that per the guidance of the New York City’s Department of Consumer and Worker Protection, employees who have two different jobs or who have fluctuating rates of pay should be paid the rate of pay that would have been in effect during the time that the employee was scheduled to work when the sick time was used, not at the weighted rate of pay as the State requires.
We encourage employers to read through the Guidance in its entirety to ensure you have a full understanding of the law and how it is applied to your business. Should you need assistance or if you have any questions, please reach out to ALG.