On Sept. 30, the provisions of the New York State Sick Leave law (NYSSL) took effect. Many qualifying employers in New York City already had adjusted policies and procedures to accommodate mandated, paid sick leave. Now all private employers in New York will need to implement the new sick leave law.
All employees began accruing sick leave as of Sept. 30; however, employees may not begin using the accrued sick leave until Jan. 1, 2021. The new sick leave covers all employees. Full-time, part-time, seasonal, per-diem and student workers will be eligible for sick leave. The law has different provisions depending on employer size, and size is based on the previous year.
A For employers with four or fewer employees in any calendar year, each employee shall be provided with up to 40 hours of unpaid sick leave in each calendar year. This small employer must allow the time off, but the time is not paid.
A However, if the employer that employs four or fewer employees has a net income of greater than $1 million, the employer must allow 40 hours of paid sick leave in each calendar year. This employer may need to revise their sick leave policy from unpaid to paid as revenues begin to grow.
A For employers with between five and 99 employees in any calendar year, each employee shall be provided with up to 40 hours of paid sick leave in each calendar year. This is where many private employers land. Policies and procedures will require a review and updates.
A For employers with 100 or more employees in any calendar year, each employee shall be provided with up to 56 hours of paid sick leave each calendar year. Similar to the small business above, policies and procedures will need to be reviewed and updated.
A The three most important aspects of NYSSL are counting employees’ sick time earned, the carryover provision and usage of sick leave.
NYSSL can be accrued or allotted. If using the accrual method, the accrual begins Sept. 30 at a rate of one hour per 30 hours worked, up to a maximum of 40 or 56 hours depending on the employer size. The accrual method works well for employers with inherent turnover, part-time, seasonal, per-diem and student workers.
The first challenge is having a reliable method of collecting hours worked. A good time and attendance system must be able to log in one hour of sick leave for every 30 hours worked by all employees and stop the accrual when the maximum is reached.
The employer can also simply allot a specific amount of paid sick leave starting Jan. 1, 2021, as long as it meets or exceeds what is required by the law.
Also, many employers only provide sick leave allotments to full-time employees. They will need to develop allotments for part-time, seasonal, per-diem and student workers, and it may be too difficult to anticipate how many hours will be worked.
The second challenge is the carryover provision of NYSSL. Until now, employers were not mandated to carry over any form of paid time off. Now, employers must allow the carryover of NYSSL at the end of the year. The only silver lining is the carryover cannot exceed the annual NYSSL limits.
The carryover provision is where employers should expect the most questions. If the employee does not take any sick days in the year, the maximum carries over to the new year. They would not be able to accrue any more NYSSL because they are already at the maximum. Be prepared for questions.
An employer who has an all-in-one paid time off policy (PTO) with embedded sick leave that meets or exceeds the law is basically all set. The policy just needs to make sure the accrual rate complies with the new accrual rate, and it may need a carryover provision.
NYSSL can be used as soon as it is earned. Starting Jan. 1, 2021, no waiting period is allowed. Employers can set a minimum usage of 4 hours, and balances are not paid upon separation. NYSSL can be used for: •Employee’s mental or physical illness, or injury, or diagnosis, care, treatment or preventive care for employee’s mental or physical illness or injury. •Covered family member’s mental or physical illness or injury or diagnosis, care, treatment or preventive care for a covered family member’s mental or physical illness or injury. •Absences related to employee’s status as a victim of domestic violence, family offense, sexual offense, stalking or human trafficking; or •absences related to a covered family member’s status as a victim of domestic violence, family offense, sexual offense, stalking or human trafficking.
This is job-guaranteed sick leave, which means employers should prohibit discrimination, harassment and retaliation for employees who use sick leave or make a complaint of the same. Employers will be required to track how much leave their employees have used and give the employee the balance earned within three days of the employee’s request.
Word of mouth is probably not the most effective way to inform employees of their leave rights under NYSSL. We’ve seen this already happening for months now with the Family First Corona Response Act (FFCRA). The U.S. Department of Labor said it will have public announcements on radio, social media and television to make employees aware of their FFCRA rights. In a statement, the department said, “Getting this critical information to workers and employers when they need it most remains a top priority.”
Getting information out to your employees about NYSSL and FFCRA should be every employer’s priority. Inform workers with written policies and directions on who to contact and how to process requests. Managing leave requests is not easy. It requires knowledgeable staff (HR pros) who understand the laws and understand the differences and nuances of each leave law. We encourage every employer to create an infrastructure to manage leave requests promptly and properly.