On October 20, 2020, the NYS Department of Labor (“DOL”) released Frequently Asked Questions (FAQs) concerning the NYS Sick Leave Law (“NYSSL”) that went into effect on September 30, 2020. The FAQs are a helpful first step in allowing employers and employees to navigate and understand the NYSSL, but leaves some questions unanswered.
Here are some of the key points addressed in the FAQs:
- Public health emergency: The NYSLL might permit employees to use sick leave if their employer is ordered to close its business temporarily due to a public health emergency such as COVID-19. Employers and employees would need to consider the specific facts of the situation. For example, a public health emergency may require some employees to take leave for preventative care, which is a permissible use of NYSLL leave time. The FAQs point out that sick leave under NYSSL is separate from and in addition to leave provided by the NYS COVID-19 Sick Leave program, as well as paid leave provided under any other state or federal law.
- Telecommuting: Employers may not force their employees to telecommute (work from home) rather than use their NYSSL time. Employers may offer their employees the option of telecommuting or taking sick leave, in which case employees who choose to telecommute will not use sick leave time. Employees who are physically working (including telecommuting) in NYS will accrue NYSSL time for their work, whether or not their employer is located within NYS. Employees do not accrue sick leave time while they are on sick leave.
- Multiple NYS business locations: Employers that have multiple locations within NYS must count their total number of employees in all locations in order to determine the amount of leave they are required to provide under the NYSSL. The DOL has not yet clarified the obligation of employers who have locations both inside and outside of NYS.
- Front-loading leave time for part-time employees: Employers are allowed to front-load hours of sick leave for part-time employees based on the employee’s anticipated work hours. However, if the employer front-loads fewer than the total amount of sick leave hours provided by law, then the employer must track the employee’s time. If the employee works more hours than expected, the employer must provide the employee with additional sick leave time. Part-time employees may carry over any accrued but unused time into the following year, although employers may limit the total use per year.
- Other Sick and Safe Leave Laws: As detailed in our previous blog post, parts of the NYC Earned Safe and Sick Time Act (“ESSTA”) were amended recently (as of September 30, 2020) to mirror the NYSSL. Employees in NYC will continue to be covered by ESSTA to the extent that its provisions meet or exceed the NYSSL requirements. While the FAQs do not address the Westchester County sick and safe leave laws (except as they apply to domestic workers), employees in Westchester County should be covered by the local laws to the extent they meet or exceed the NYSSL requirements.
- NYS Paid Family Leave: Employers may permit employees to use NYSSL leave time while on paid family leave. Wages paid under the NYSLL may supplement the partial wage replacement provided under the NYSPFL, but employees may not receive more than 100% of their wages while on leave.
As we explained in a prior blog post, NYS employers must allow their employees to start accruing sick leave under the NYSSL as of September 30, 2020, or must front-load the required amount of sick leave as of January 1, 2021. Employers must permit employees to start using their sick leave time as of January 1, 2021.
If you have any questions or concerns about the implementation of the NYS Sick Leave Law, please contact Chaim Book at cbook@mb-llp.com or Sheryl Galler at sgaller@mb-llp.com.
