Effective September 30, the New York State Paid Sick Leave Law (NYSPSL Law) and amendments to the New York City Paid Safe and Sick Leave Law (NYCPSL Law) became effective requiring implementation of new leave accrual, record-keeping and reporting obligations.  Manufacturers with operations in New York State or New York City may need to update policies and records now.

The NYSPSL law, adopted at the start of the Coronavirus Pandemic in March, requires every manufacturer with employees working in New York to provide paid or unpaid leave to those employees.  The amount of leave and whether paid or unpaid depends on the size and income of the business (summarized below):

Employees begin to accrue leave on the later of September 30, 2020 or their date of employment.  Leave accrues at the rate of 1 hour of leave for every 30 hours of work.  While leave may begin to accrue as early as September 30, employees are not eligible to take leave until January 1, 2021.  Manufacturers may grant employees the full allotment of leave at the start of the calendar year but may not reduce the amount of leave once granted based on the number of hours worked.  Employees may carry over to the next year any accrued and unused sick leave, but a manufacturer may limit the amount of leave taken each year (40 hours for manufacturers of fewer than 100 employees, 56 hours for manufacturers of 100 or more employees).  Manufacturers may grant more leave than the amount required by the law.

Sick leave may be used in any reasonable increment set by the manufacturer.  Employees may use sick leave for a mental or physical illness, injury or health condition of the employee or the employee’s covered family member; for diagnosis, care or treatment of a mental or physical illness, injury or health condition of, or the need for a medical diagnosis for, the employee or the employee’s covered family member; or for an absence due to domestic violence, a sexual offense, stalking or human trafficking, or to avail themselves or a family member of covered services as a result (including civil or criminal proceedings and attendance at victim’s services organizations).

Importantly, the new sick leave benefit appears to be in addition to the Emergency Paid Sick Leave benefits provided by the federal government beginning on April 1, 2021 under the Families First Coronavirus Response Act (FFCRA).  The new sick leave benefits are also in addition to New York Emergency COVID-19 Paid Sick Leave Law adopted in March 2020.  Cumulatively, this means every manufacturer in New York must conform existing leave policies.

While the NYPSL law does not require manufacturers to allow employees to begin using leave until January 1, 2021, manufacturers must begin tracking leave as of September 30.  Upon request, a manufacturer must provide an employee within three  business days with information about her or his leave accrual and use.

New York City Amends Local Law to Conform   

Following New York State, effective September 30, 2020, the New York City Council amended the NYCPSL Law to conform to the New York State law.  In doing so, however, the City Council expanded paid sick leave benefits for domestic workers and imposed additional obligations on manufacturers with respect to their employees located in New York City.

The Amended New York City law requires manufacturers to provide employees either in their paystubs or in a separate document with both the amount of sick time earned and used during the pay period, as well as the current leave balance.  Manufacturers must provide and post written notice of the amended law to all employees within 30 days of its effective date (i.e., by October 30, 2020) or the employee’s date of hire (whichever is later).  This written notice must be posted and provided to employees in English and the primary language of the employee.  Significantly, with the amendment, New York City abolished the requirement that covered employees work in New York City at least 80 hours per year, meaning that manufacturers much track the work hours of even casual or part-time employees.

In addition, the New York City law now provides for up to 40 hours paid sick leave for domestic workers regardless of the number of employees or the manufacturer’s net annual income level.  This change represents a substantial increase in the amount of leave available to domestic workers, as the prior  version of the local law provided two days of paid sick leave per year.  (New York State’s Domestic Workers Bill of Rights provides for up to three days leave for domestic workers, although not specifically for sickness.)

While the amendments became effective in September, a manufacturer need not allow employees to use the extended leave benefits until January 1, 2021.

Unanswered Questions

These new leave laws present a host of unresolved issues for manufacturers.  Neither law addresses the issues presented by manufacturers with operations outside of New York State.  In assessing the amount of leave to provide employees, do employees working outside of New York State or City count toward determining the amount of leave to provide employees?  Furthermore, for employees working both in and out of New York State and City, for leave accrual purposes, do manufacturers count all time worked or only the time spent in the particular jurisdiction.

Many are hopeful that the New York Department of Labor and/or the New York City Department of Consumer Affairs (the agencies with authority to issue implementing regulations) will provide guidance soon.

Given the complex interplay between the federal, New York State and New York City leave laws, employers of New York State or City employees may wish to confer with qualified legal counsel now to comply with notice obligations and harmonize leave policies.