New York State Issues First Guidance on Paid Sick Leave Law

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On October 20, 2020, New York State issued its first guidance on the New York State Sick Leave Law (New York Labor Law § 196-b) (NYSSLL). The guidance, titled “New York State Paid Sick Leave FAQ” (FAQ) appears on the state’s new webpage dedicated to an overview of the NYSSLL, which includes, among other things, information about sick leave accruals, eligibility for sick leave, and permitted uses of sick leave.

The guidance, currently consisting of 44 questions and answers, addresses a multitude of subjects, including:

  • the language a collective bargaining agreement must contain in order to lawfully provide comparable, but different, benefits from those required under the NYSSLL;
  • the accrual of sick time for those employees who are not paid on an hourly basis;
  • whether part-time employees can have sick leave front-loaded at the start of a calendar year;
  • the rate of pay for sick leave taken during hours that would otherwise have been overtime working hours; and
  • whether an employer is required to pay employees for lost tips and gratuities during leave.

However, the FAQ, in its current form, does not provide employers clear and definitive guidance with respect to a number of critical questions, such as:

  • Employee Headcount: To ascertain the amount of leave required to be provided, are employers required to count their employees nationwide, or just those within New York State?
  • Frontloading Sick Time:  Must an employer allow carryover of unused, accrued sick leave if the employer frontloads the total required amount of sick leave under the NYSSLL at the start of each calendar year?; and
  • Cap on Carryover: Can an employer place a maximum cap, consistent with the maximum accrual allowed, on the amount of sick leave that must be carried over from one calendar year to the next calendar year?

In addition, the FAQ raises some compliance concerns for New York City employers.  Specifically, the FAQ appears to require employers to pay sick time to employees who work at two or more different rates of pay for different tasks during a workweek at the regular rate of pay based on a weighted average of rates and hours worked. This is a departure from how this situation would be handled by New York City employers, per the guidance of the New York City’s Department of Consumer and Worker Protection (DCWP). The City’s DCWP has stated in its own Frequently Asked Questions that employees who have two different jobs or who have fluctuating rates of pay should be paid the rate of pay that would have been in effect during the time that the employee was scheduled to work when the sick time was used, not at a blended rate of pay as the state suggests in its NYSSLL FAQ.

New York employers should be cognizant of the new state mandated sick leave requirements.  For New York City employers, they should also be aware that state and New York City law do not wholly align with regard to sick leave.  As such, employers should reach out to employment counsel with questions regarding these new and continuing developments.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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