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NYS Issues Sick Leave Guidance Employers Still Waiting for Regulations for Additional Clarification

The week of October 19th the New York Department of Labor released additional guidance on the paid sick leave law, including a Frequently Asked Questions document.

Summary of the law

Paid Sick Leave Alert

On April 3, 2020, Governor Cuomo signed legislation establishing the right to sick leave for New Yorkers. The law requires employers with less than $1 million in revenue and four or fewer employees to provide 40 hours of unpaid sick time. Employers with over $1 million in net income or with 5-99 employees must provide up to 40 hours of paid sick time. Employers with over 100 employees must provide 56 hours of paid sick leave.  This new law is in addition to the New York State provisions already in effect providing emergency paid sick time due to COVID-19.

On September 30, 2020, covered employees in New York State began to accrue leave at a rate of at least one hour for every 30 hours worked. On January 1, 2021, employees may start using accrued leave.

HR One has been working with our clients to revise their sick and paid time off policies and to set-up accruals within Payentry, but there are many questions still unanswered regarding the sick leave.

Proposed regulations will hopefully be released by the end of the year, though final regulations are likely months away. HR One will continue to provide updates.

What are things employers should be doing right now?

Employers should review current policies to make sure that all employees, including part-time, per-diem, and seasonal employees are eligible for paid sick leave.  Quite simply, if you issue them a W-2, they are eligible. Another step that can be taken right away is to add the reasons for use to your existing paid time off policy in accordance with defined uses in NYS regulations. It will be important for employers that decide to include the sick leave under a PTO umbrella that employees understand that their paid time off is intended to provide leave specifically for the following reasons:

Sick Leave:

  • For the employee or employee's family member's mental or physical illness, injury, or health condition, regardless of whether it has been diagnosed or requires medical care at the time of the request for leave; or
  • For the employee or employee's fmaily member's diagnosis, care, or treatment of a mental or physical illness, injury or health condition; or need for medical diagnosis or preventive care.

Safe Leave:

  • For an absence from work when the employee or employee’s family member has been the victim of domestic violence as defined by the State Human Rights Law, a family offense, sexual offense, stalking, or human trafficking due to any of the following as it relates to the domestic violence, family offense, sexual offense, stalking, or human trafficking:
    • to obtain services from a domestic violence shelter, rape crisis center, or other services program;
    • to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members;
    • to meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding;
    • to file a complaint or domestic incident report with law enforcement;
    • to meet with a district attorney’s office;
    • to enroll children in a new school; or
    • to take any other actions necessary to ensure the health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.

Make sure your sick leave or paid time off policy includes non-retaliation/non-harassment language. Paid sick leave is now a statutory right for employees and taking action against an employee for utilizing earned time off could result in liability for penalties and fines.

If you are using HR One's Payentry services, we can help you back-fill any accruals from September 30th so that employees begin 2021 with a balance.  If you are not using our payroll services, be sure and discuss accrual options with your payroll provider as soon as possible.

Look for more information as the state releases their draft regulations and the final regulations.