Q: I understand the New York Department of Labor recently released guidance interpreting the New York State Sick Leave Law. What are the key takeaways? Did the guidance answer the questions left open by the legislation?
A: As discussed in our previous post, the New York Sick Leave Law (NYSLL) went into effect on September 30 for accrual purposes, and employees may start using the sick leave on January 1, 2021. The New York Department of Labor recently issued general guidance on its website, and also issued an FAQ document (referred to together as "guidance" for purposes of this post).
Despite the volume of material released, the guidance does not clearly address most of the key questions left open by the NYSLL. Instead, the guidance focuses on topics already covered in the text of the law (e.g., the definition of family member) and on relatively straightforward questions, such as whether an individual may use sick leave for routine dentist and eye doctor appointments (which is allowed because those are considered preventative medical care).
While the guidance is far from comprehensive, it does include some helpful information, including explaining that:
- All private-sector employees, including those employed by nonprofits, are eligible for paid sick leave. The only excluded employees are those who work for federal, state, or local, governments.
- For part-time employees, employers can frontload a set amount of hours based on the number of hours the part-time employee is anticipated to work. If an employer frontloads less than 40 hours, the employer must track hours worked and sick leave accrued to ensure that the employee receives any additional time above the front-loaded amount that he/she may earn.
- For tipped employees, employers must pay leave at the employee's normal pay rate (with no tip credit) or the applicable minimum wage, whichever is greater. Employers are not required to pay employees for lost tips and gratuities during sick leave.
- For employees paid at different rates, paid sick leave must be paid on the weighted average of the rates for the work week in which the leave is taken.
As noted above, the guidance does not clearly address key questions left open by the NYSLL, including:
- If an employer provides a lump sum of paid sick leave at the beginning of each year (also known as front-loading), whether the employer must still allow employees to carry over accrued, unused leave at the end of the year.
- In determining the amount of sick leave the employer is required to provide, whether to count only employees within New York or employees nationwide.
- Whether leave provided for other purposes in collective bargaining agreements entered into prior to September 30, 2020 can be used to satisfy an employer's obligation to provide New York Paid Sick Leave.
- Whether employers can require reasonable documentation to support an employee's request to use New York Sick Leave.
On the issue of front-loading, the guidance does not definitively address whether employers who front-load paid sick leave or grant a lump sum must allow carryover of accrued, unused leave at the end of the year. The FAQ on frontloading sick leave for part-time employees states that "[a]n employer who front-loads fewer than 40 hours must allow employees to carry over up to 40 hours of unused sick leave into the new calendar year," implying that employers who front-load the full year's entitlement do not need to require carryover. However, it is far from clear. Thus, employers that use the front-loading or lump sum method should carefully consider their position on carry over, and seek advice of counsel.
On the issue of counting employees, as a reminder, under the NYSLL, an employer with zero to four employees and a net income of $1 million or less must provide up to 40 hours of unpaid sick leave per year. If the employer's net income is greater than $1 million or the employer has between five and 99 employees, the employer must provide up to 40 hours of paid sick leave per calendar year. Employers with 100 or more employees must provide up to 56 hours of paid sick leave per year. However, the NYSLL did not explain whether the employer must count all employees in its workforce to determine which threshold it meets, or whether only New York employees should be counted. Unfortunately, the guidance does not clearly address this issue either. Similar to the front-loading question, the one FAQ that might imply an answer is far from conclusive. The FAQ states that if an employer has multiple business locations within New York, the employees at each location are counted together for purposes of determining employee count. That can be interpreted to mean that only employees within New York should be considered, but again, it is far from a definitive answer, and employers who take that position could still risk noncompliance.
Unfortunately, the guidance also does not shed light on whether leave provided under collective bargaining agreements entered into prior to September 30, 2020 can be used to satisfy an employer's requirement to comply with the NYSLL. The statute and guidance both state that, collective bargaining agreements entered into after September 30, 2020, may provide different leave benefits, so long as such benefits are comparable to those required under the NYSLL and the collective bargaining agreement specifically references the NYSLL. However, both the statute and the guidance are silent as to collective bargaining agreements already in place prior to September 30, 2020, implying that leave benefits under those agreements are not sufficient for NYSLL compliance. Another open question in this regard is whether providing paid sick leave to union employees is a mandatory subject of bargaining.
Finally, the guidance also does not address whether employers can require documentation supporting the use of paid sick leave.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.