Compliance Might Be Difficult

The New Law

The new law[1] obligates many, if not most, small[2] New York State employers to provide forty hours (i.e. 5 days) paid sick leave. Those employers must commence providing such sick leave effective January 1, 2021[3].

Like many new laws, the legislators did not work out all the kinks before it was enacted…they left that task to the NYS Department of Labor. Unfortunately, the Department of Labor has not yet issued any regulations, and there is no guaranty they will do so in the next two months. Some of the kinks are discussed below.

A Few of the Kinks

Sick Leave vs. PTO. Many years ago, most employers compartmentalized their “days off” benefits into vacation, personal days and/or sick leave. However, many employers have long since moved to a “Paid Time Off” policy that combines the three benefits. The new law states that a company may keep its existing PTO system, but only if that system provides employees with leave which meets or exceeds the requirements, including the accrual, carryover, and use requirements and handcuffs[4] Review of the law demonstrates that in many cases (1) it will be difficult to determine whether an existing PTO policy meets the new law’s requirement; and/or (2) there will be ample opportunity for smart employees to “game” the system for extra paid days off.

Calendar Year vs. Employment Year. The law calls for paid sick leave to b administered on a calendar year basis; whereas in many, if not most, PTO systems the benefit is based on “employment years”[5].

“Handcuffs” on Management. While the law seemingly allows the employer to look into the legitimacy of the claim, it prohibits the employer from requiring: “the disclosure of confidential information relating to [the basis of the claim]…as a condition of providing sick leave”[6]. Since the new law does not define “confidential information” management may have no practical means to confirm whether the leave was actually taken for a covered purpose.

Not Just Sick Leave

Although the new law is headed “Sick Leave Requirements” its coverage extends far beyond the employee’s illness or injury[7]. In fact, the law also authorizes paid “sick leave” to deal with enrolling children in a new school, domestic violence, family offense, sexual offense, stalking, human trafficking, obtaining services from a domestic violence shelter, rape crisis center; meeting with an attorney or to prepare for or participate in any ciminal or civil proceeding; meeting with law enforcement. Many of these benefits also extend to the employee’s “family members”[8]. A full list of the allowable purposes for paid sick leave is in Appendix A.

Conclusion.

We urge you to: (a) become at least generally familiar with the many requirements of the new law and (b) carefully review your company’s existing paid time off and/or sick leave policies to determine what you must do to comply…and please do not wait for 2021 to address this!

If you have any questions about paid or unpaid sick leave benefits, or about any other facet of employment law, please contact Richard Waxman at:

rwaxman@waxmanlaw.com

A PDF copy of this Alert is attached in the banner to this e-mail.

© Richard H. Waxman 2020

Appendix A
Allowable Purposes for Paid Sick Leave
NYS Labor Law Section 196-b (4) (a)

  1. a. On and after January first, two thousand twenty-one and upon the oral or written request of an
    employee, an employer shall provide accrued sick leave for the following purposes:
    (i) for a mental or physical illness, injury, or health condition of such employee or such employee’s family
    member, regardless of whether such illness, injury, or health condition has been diagnosed or requires
    medical care at the time that such employee requests such leave;
    (ii) for the diagnosis, care, or treatment of a mental or physical illness, injury or health condition of, or need
    for medical diagnosis of, or preventive care for, such employee or such employee’s family member; or
    (iii) for an absence from work due to any of the following reasons when the employee or employee’s family
    member has been the victim of domestic violence pursuant to subdivision thirty-four of section two hundred
    ninety-two of the executive law, a family offense, sexual offense, stalking, or human trafficking:
    (a) to obtain services from a domestic violence shelter, rape crisis center, or other services program;
    (b) 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;
    (c) 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;
    (d) to file a complaint or domestic incident report with law enforcement;
    (e) to meet with a district attorney’s office;
    (f) to enroll children in a new school; or
    (g) 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.
    For purposes of this subdivision, the reasons outlined above in subparagraph (a) through (g) must be related
    to the domestic violence, family offense, sexual offense, stalking, or human trafficking. Provided further that a
    person who has committed such domestic violence, family offense, sexual offense, stalking, or human
    trafficking shall not be eligible for leave under this subdivision for situations in which the person committed
    such offense and was not a victim, notwithstanding any family relationship.
    b. For purposes of this section, “family member” shall mean an employee’s child, spouse, domestic partner,
    parent, sibling, grandchild or grandparent; and the child or parent of an employee’s spouse or domestic
    partner. “Parent” shall mean a biological, foster, step-or adoptive parent, or a legal guardian of an employee,
    or a person who stood in loco parentis when the employee was a minor child. “Child” shall mean a biological,
    adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.

1 NYS Labor Law Sec. 196-b “Sick Leave Requirements”

2 For purposes of the Alert “small employers” meaning those with between 5-99 employees; even smaller companies are required to provide unpaid sick leave; while large ones are required to provide fifty six hours (i.e. 7 days) paid sick leave or unpaid sick leave.

3 While the law is nominally “effective” September 30, 2020…practically that only means that employees of a company which opts for an accrual procedure will commence accruing sick leave rights on September 30, 2020, even though the employees cannot use that accrued sick pay until January 1, 2021.

4 NYS Labor Law Sec. 196-b (8)

5 Each employees Employment Years starts on the hire date and on each anniversary of the hire date.

6 Labor Law Sec. 196-b (5)(a)

7 While the law seemingly allows the employer to look into the bona fides of the claim, it prohibits the employer from requiring: “the disclosure of confidential information relating to [the basis for the claim]…as a condition of providing sick leave.”

8 Family Members is defined in Labor Law Sec. 196-b (4)(b)