Saturday, October 31, 2020
New York State has launched an casual steering web page, together with steadily requested questions, relating to the newly enacted statewide paid sick depart legislation, which took impact on September 30, 2020.
As we have beforehand reported, the legislation requires employers with New York workers to supply a certain quantity of paid or unpaid sick depart for use for sure medical and worker safety-related causes. Particularly, underneath the brand new legislation:
employers with four or fewer workers and a web revenue of lower than $1 million within the prior tax 12 months should present workers with as much as 40 hours of unpaid sick depart.
employers with between 5 and 99 workers and employers with four or fewer workers and a web revenue of better than $1 million within the prior tax 12 months should present every worker with as much as 40 hours of paid sick depart per 12 months.
employers with 100 or extra workers should present as much as 56 hours of paid sick depart per 12 months.
Staff should accrue sick depart at a fee of no less than 1 hour for each 30 hours labored. Alternatively, employers could fulfill their obligation underneath the legislation by offering the total quantity of sick depart in a lump sum at first of every 12 months.
The newly launched steering offers further coloration on quite a few the necessities underneath the brand new legislation. Among the many key highlights:
Worker Protection and Quantity of Go away to Be Supplied
The legislation applies to all personal sector workers – together with full-time, part-time, and seasonal workers, in addition to each exempt and non-exempt workers – and consists of workers of constitution faculties, personal faculties, and not-for-profit firms. Nevertheless, federal, state, and native authorities workers will not be lined.
Staff who telecommute for New York employers outdoors of New York State are lined by the legislation just for any hours when they’re bodily working in New York State. That is additionally true the place the employer can be bodily situated outdoors of New York State.
For functions of figuring out an employer’s whole variety of workers in a calendar 12 months (and due to this fact the quantity of sick depart the employer is obligated to supply), employers should use the 12-month interval from January 1 to December 31. The steering doesn’t, nonetheless, make clear whether or not employers ought to rely workers working outdoors of New York State as a part of their whole worker rely.
Offering, Paying, and Use of Sick Go away
For functions of figuring out when worker accrual begins anew or when new time is to be frontloaded every year, an employer could make the most of any 12-month interval because the “calendar 12 months” (such because the employer’s fiscal 12 months or an worker’s anniversary date).
Employers using a frontloading system could not later revoke or scale back the quantity of sick depart offered if the worker works fewer hours than anticipated within the 12 months.
Employers could make the most of a frontloading system for part-time workers that gives a financial institution of sick depart time equal to what they might in any other case accrue (underneath the 1 hour of sick depart for each 30 hours labored calculation) primarily based on the hours they’re anticipated to work in that 12 months. Nevertheless, if an employer frontloads fewer than the utmost required hours underneath the legislation, the employer should nonetheless monitor the worker’s hours labored and accrual of sick depart within the occasion the worker finally ends up working extra hours than beforehand anticipated. In such case, the employer should permit the worker to accrue further depart (on the 1 hour for each 30 hours labored fee) till the overall quantity of frontloaded plus accrued time reaches the utmost required hours underneath the legislation, and the worker have to be allowed to make use of all such frontloaded and accrued time in that calendar 12 months. Additional, the worker have to be allowed to hold over any unused sick depart for instant use within the following 12 months, along with being frontloaded the period of time the worker is anticipated to earn within the new calendar 12 months, although the employer should set a utilization cap of 40 or 56 hours primarily based on dimension.
Paid sick depart should paid on the worker’s common fee of pay. Whereas a non-exempt worker could use accessible sick time for scheduled hours that will in any other case qualify as extra time hours if labored, an employer just isn’t required to pay the worker at their extra time fee for such hours. For workers with a number of pay charges, sick depart have to be paid at a weighted common of these charges. Employer who make the most of a tip allowance in opposition to minimal wage necessities will not be permitted to take action for such worker’s sick depart – fairly, such workers could be entitled to the statutory minimal wage relevant to the worker.
An worker is entitled to make use of sick depart upon oral or written request, and there’s no specified minimal discover interval requirement underneath the legislation.
Unused sick depart needn’t be paid out by the employer on the finish of the employment relationship. For seasonal workers who “preserve an ongoing employment relationship with their employer,” they have to be permitted to keep up their sick depart accruals throughout any breaks in employment.
Collectively Bargained Staff
Collective bargaining agreements entered into on or after September 30, 2020 could present for various depart advantages as these set forth underneath the legislation, as long as: (i) such advantages are “comparable advantages” to these required by legislation; and (ii) the settlement particularly acknowledges and references the provisions of the Part 196-b of the New York Labor Regulation (which is the supply incorporating the paid sick depart legislation).
The steering additional recommends that “the ‘comparable advantages for the workers’ be explicitly recognized and labeled as such within the settlement to keep away from confusion and misunderstanding.”
Interaction With Different Go away Legal guidelines
Each the New York Metropolis Earned Secure and Sick Time Act (“ESSTA”) and the Westchester County Paid Sick Go away Regulation stay enforceable as to lined workers to the extent the necessities underneath these legal guidelines meet or exceed these of the statewide paid sick depart legislation.
The New York State sick depart legislation “operates independently from different State and Federal depart necessities” and “should due to this fact be paid along with every other State or Federal depart entitlements.” This consists of the New York State COVID-19 depart legislation, in addition to depart underneath the federal Households First Coronavirus Response Act.
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Employers are inspired to assessment the brand new steering and make sure that their sick depart insurance policies are updated with the most recent necessities. Additional, employers with workers in New York Metropolis are reminded that ESSTA has additionally been not too long ago amended, largely to convey the legislation according to the state legislation.
© 2020 Proskauer Rose LLP. Nationwide Regulation Assessment, Quantity X, Quantity 305