The New York State Department of Labor (“DOL”) recently issued guidance to Section 196-b of the New York Labor Law, with respect to the new paid sick leave law that is fully effective January 1, 2021. The DOL’s guidance includes a FAQ document and explains the sick leave requirements including the amount of leave, accruals, eligibility, permitted uses, existing policies, retaliation, record keeping and more.
The FAQ sheet can be found here: https://www.ny.gov/sites/ny.gov/files/atoms/files/PSL_FAQ_PaidSickLeaveFAQ.pdf
The Guidance is found here: https://www.ny.gov/new-york-paid-sick-leave/new-york-paid-sick-leave#amount- of-leave
Our prior legal briefing explaining our interpretation of Labor Law Section 196-b is found here: https://www.lawpf.com/post/new-york-state-passes-paid-sick-leave-law-that-is-unrelated-to-covid-19-paid-sick-leave
Sick Leave may be used with Paid Family Leave
The DOL guidance expands on issues that were not completely explained in Section 196-b, such as how the sick leave may impact other benefits such as Paid Family Leave (PFL). The DOL advised that an employee may choose to use sick leave during PFL if the employer allows it. Taking sick leave at the same time as PFL may allow the employee to receive their full salary for all or part of the leave.
However, an employee cannot receive more than their full wages while receiving PFL benefits.
How to Address Sick Time for Part-Time and Seasonal Employees
The new guidance also explains how to front load sick pay for part-time employees, which caused some confusion when the new law was introduced. The DOL advised that an employer may front-load the sick leave to its part-time employees with the hours of sick leave they would accrue based on the hours they are anticipated to work at the accrual rate of one hour of sick leave for every 30 hours the employee is anticipated to work.
However, if the employer frontloads fewer than 40 hours or 56 hours, depending on the size of the workforce, the employer must still track the employee’s hours worked and accrual of sick leave because a part-time worker may work more hours than anticipated. If the employee works more hours than anticipated, the employer must allow the employee to accrue leave at the rate of one hour for every 30 hours worked until the total amount of front-loaded plus accrued sick leave in a calendar year equals 40 or 56 hours, depending on the size of the workforce.
Employees who are front-loaded less than 40 hours in a calendar year must be allowed to use up to 40 or 56 hours, depending on the size of the workforce, for sick leave in a calendar year if they have accrued it. An employer who front-loads fewer than 40 hours must allow employees to carry over up to 40 or 56 hours, depending on the size of the workforce, of unused sick leave 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.
The DOL also advised that seasonal employees who maintain an ongoing employment relationship with their employer must maintain their leave accruals through such breaks in employment.
Most payroll companies are capable of tracking the sick leave hours accrued – employers should partner with their payroll providers to verify the reporting requirements are met.
Carry Over Concerns
Notably, the DOL advised that if the employer has not calculated employees’ use and accruals, the employer cannot change the policy in the new calendar year since employees are entitled to carry over unused sick leave and use those hours at the beginning of the new calendar year. Therefore, it is important for employers to properly update their paid time off policies to account for the new sick leave requirements.
Our Firm has extensive experience counseling employers and businesses on employee and labor law issues, and preparing applicable employee policies, particularly relating to the evolving regulations during the COVID-19 pandemic. If you have any questions related to this Legal Briefing or questions related to COVID-19 reopening rules and procedures, please contact any member of our Firm at 585-730-4773.
This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2020 Law Offices of Pullano & Farrow PLLC