As per our previous Client Alert, New York passed a State Sick Leave Law (“State Sick Leave Law”) requiring employers of all sizes to provide a certain amount of sick leave to be used for certain medical and safety-related reasons (“Sick Leave”). Employees began accruing Sick Leave on September 30, 2020 and may begin using accrued Sick Leave on January 1, 2021.
On September 28, 2020, the New York City Earned Safe and Sick Time Act was amended to better align with the State Sick Leave Law, including elimination of the 80 hour work requirement for eligibility purposes and the 120-day waiting period to use leave. NYC employers must inform employees about these new requirements by October 30, 2020 by providing employees with an updated Notice of Rights. The new Notice of Rights must be posted in the workplace, distributed to all current employees and provided at the time of hire to new employees. The Notice should be provided in English or the employee’s primary language if a translation has been made available. When published, the Notice of Rights will be available at: https://www1.nyc.gov/site/dca/about/Paid-Safe-Sick-Leave-Notice-of-Employee-Rights.page.
Recently, the State released Frequently Asked Questions (FAQs) which restate many provisions of the State Sick Leave Law, and also clarifies certain requirements. To note:
- Employees do not accrue Sick Leave while using Sick Leave, or when receiving payments that are not for hours worked (e.g., bonuses, subject-to-call time). However, employees do accrue Sick Leave during all other time that is considered “hours worked” (e.g., on-call time, training time, travel time).
- An employer cannot require an employee to work from home or telecommute instead of taking Sick Leave, but can offer the employee the option.
- If an employer has been ordered to close temporarily due to a public health emergency, whether employees may use accrued Sick Leave during the period of closure will be a fact specific question depending on the type of health emergency, including the risk of contagion and other health considerations.
- Employers with multiple business locations throughout New York must count the total number of employees across all locations to determine how much Sick Leave they must provide their employees.
- An employee’s immigration status has no effect on their eligibility to take Sick Leave.
- Domestic workers are eligible for Sick Leave, in addition to leave under the State Domestic Worker Bill of Rights.
- When employees are paid on a non-hourly basis (e.g. commission, flat rate), accrual of Sick Leave is measured by the actual length of time spent performing work. Exempt employees may be presumed to work 40 hours per workweek, unless the terms of their employment provide otherwise.
- Employers are not required to pay employees for lost tips or gratuities when they use Sick Leave.
- Employees who are paid at more than one rate of pay must be paid for Sick Leave at the weighted average of those rates.
- Seasonal employees who maintain an ongoing employment relationship with their employer maintain their Sick Leave accruals through breaks in employment.
- Employers may front-load Sick Leave for employees.
- An employee can only use Sick Leave consecutively with their Paid Family Leave if the employer allows it. Taking both at the same time may allow the employee to receive their full salary for all or part of the leave.
- The Law does not provide for any specific time period for notice before employees use Sick Leave, however, employers may require the employee to provide an oral or written request prior to using the Sick Leave.
- Sick Leave accruals may not be reduced or otherwise restricted if an employee changes positions, roles or locations with the same employer.
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If you have questions or would like additional information, please contact Ilan Weiser (iweiser@egsllp.com) or the primary EGS attorney with whom you work.
