As we beforehand reported, New York State’s Paid Sick Go away regulation (“NYSPSL”) went into impact on September 30, 2020. Whereas staff usually are not permitted to take sick depart beneath NYSPSL till January 1, 2021, many questions stay relating to employers’ obligations beneath the regulation. On October 21, within the midst of this interim interval, the New York State Division of Labor (“NYS DOL”) printed a set of FAQs addressing a few of the ambiguities within the regulation, however maybe elevating others. Key takeaways are summarized under.
Calendar 12 months Outlined
“Calendar 12 months” means the 12-month interval from January 1 to December 31.
For different functions, together with use and accrual of depart, employers could set a calendar 12 months to imply any 12-month interval.
All personal sector employees in New York State are actually coated beneath NYSPSL, no matter business, occupation, part-time standing, extra time exempt standing, and seasonal standing.
Nonprofit employers should additionally adjust to the regulation.
Out-of-state employers should present NYSPSL to staff who bodily work in New York State.
Figuring out Employer Measurement
Underneath NYSPSL, the quantity of sick depart a coated employer should present is decided by an employer’s measurement and internet revenue in a given calendar 12 months. Nonetheless, the FAQs don’t handle how employer measurement is decided (on a state or nationwide foundation), nor do they develop on the calculation of “internet revenue.
Employers can not require staff to make money working from home or telecommute as an alternative of taking sick depart. Nonetheless, an employer can supply staff the choice of working from dwelling or telecommuting as a substitute for utilizing NYSPSL. If staff voluntarily conform to make money working from home or telecommute, they’ll retain any paid or unpaid sick depart they’ve accrued.
Permitted Makes use of
NYSPSL permits staff to make use of sick depart for preventive medical care, amongst a number of different causes. The FAQs make clear that as a result of sick depart can be utilized for preventive medical care: (i) it will cowl absences for routine medical appointments, comparable to dentist and eye physician appointments; and (ii) it could cowl absences as a consequence of short-term closure of the employer’s place of work as a consequence of a public well being emergency.
The necessity for bereavement depart isn’t a sound motive beneath NYSPSL.
Calculating Accrual, Pay and Hours Labored
For functions of calculating “hours labored” when making use of the accrual methodology, on-call time, coaching time, and journey time all depend; bonus and subject-to-call time don’t
When staff are paid on a non-hourly foundation, accrual of sick depart is measured by the precise size of time spent performing work.
Workers who’re paid at multiple charge of pay should be paid for depart on the weighted common of these charges.
Employers usually are not required to pay for accrued, however unused NYSPSL time at termination, although the employer ought to keep a coverage to that impact.
No Utilization Ready Interval
Interaction With Different Legal guidelines
The FAQs are silent as as to if depart beneath NYSPSL and depart beneath the New York Metropolis Earned Protected and Sick Time Act (“ESSTA”) can run concurrently. Nonetheless, the FAQs’s reply to the query relating to whether or not staff can file complaints in New York Metropolis for violation of the State regulation appears to point that they do: “New York Metropolis could proceed to implement the provisions of the New York Metropolis Paid Protected and Sick Go away Legislation to the extent that such provisions meet or exceed the top normal or necessities for minimal hour and use set forth within the New York State Paid Sick Go away Legislation, as decided by the Commissioner of Labor.” The identical is presumably true for Westchester County’s Earned Sick Go away regulation, although the FAQs are silent on that time.
Go away beneath NYSPSL is a further profit to New York State COVID-19 depart.
Go away beneath NYSPSL is along with another relevant federal or state depart entitlement, although staff could select to make use of NYSPSL concurrently with Paid Household Go away (“PFL”) if their employer permits it. Taking sick depart similtaneously PFL could permit the worker to obtain their full wage for all or a part of the depart. Nonetheless, an worker can not obtain greater than their full wages whereas receiving PFL advantages.
Employers who supply PTO in extra of what’s required by NYPSL’s carryover, accrual and use necessities usually are not topic to any additional obligations beneath the regulation.
There isn’t a specified discover or time interval requirement beneath the regulation, supplied, nonetheless, that the worker makes an oral or written request to the employer previous to utilizing the accrued sick depart. Employers can waive this requirement altogether.
Collective Bargaining Agreements (“CBAs”)
CBAs entered into on or after September 30, 2020 could present for various depart advantages as long as they’re “comparable advantages for the workers” to these required by NYSPSL, and the CBA particularly acknowledges the provisions of Part 196-b of the Labor Legislation.
The NY DOL recommends that the “comparable advantages for the workers” be explicitly recognized and labeled as such within the CBA to keep away from confusion or misunderstanding.
Regardless of the issuance of the FAQs and NYSPSL having been in impact for greater than three weeks, quite a lot of questions nonetheless stay relating to employer obligations beneath the regulation. The FAQs presently fail to supply employers clear and definitive steering regarding quite a lot of crucial questions, together with:
Employer Measurement: To find out the quantity of depart employers should present beneath NYSPSL, should employers depend their staff nationwide or simply these inside New York State?
Calculation of “Web Revenue”: To find out the quantity of depart employers should present beneath NYSPSL, how should employers calculate their “internet revenue?”
Frontloading Sick Time: If an employer frontloads sick depart in the beginning of the 12 months, is the employer relieved from carryover obligations?
Cap on Carryover: Can employers place a most cap on the quantity of sick depart that should be carried over from one calendar 12 months to the following calendar 12 months?
Cheap Documentation: Can employers require staff who use sick depart to supply cheap documentation proving that the absence was for a coated motive?
Whereas we’ll proceed to watch developments to NYSPSL (along with the current amendments to the ESSTA) employers ought to evaluation their current sick depart insurance policies to make sure compliance in mild of the FAQs. Employers also needs to proceed to watch the NY DOL web site for added laws or steering.
*Jamie Moelis is a regulation clerk within the Labor and Employment Follow Group
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