As we previously reported, New York State’s Paid Sick Leave law (“NYSPSL”) went into effect on September 30, 2020.  While employees are not permitted to take sick leave under NYSPSL until January 1, 2021, many questions remain regarding employers’ obligations under the law.  On October 21, in the midst of this interim period, the New York State Department of Labor (“NYS DOL”) published a set of FAQs addressing some of the ambiguities in the law, but perhaps raising others. Key takeaways are summarized below.

Calendar Year Defined

• “Calendar year” means the 12-month period from January 1 to December 31.

• For other purposes, including use and accrual of leave, employers may set a calendar year to mean any 12-month period.

Employee Eligibility

• All private sector workers in New York State are now covered under NYSPSL, regardless of industry, occupation, part-time status, overtime exempt status, and seasonal status.

• Nonprofit employers must also comply with the law.

• Out-of-state employers must provide NYSPSL to employees who physically work in New York State.

Determining Employer Size

• Under NYSPSL, the amount of sick leave a covered employer must provide is determined by an employer’s size and net income in a given calendar year. However, the FAQs do not address how employer size is determined (on a state or nationwide basis), nor do they expand on the calculation of “net income.

Telecommuting Workers

• Employers cannot require employees to work from home or telecommute instead of taking sick leave. However, an employer can offer employees the option of working from home or telecommuting as an alternative to using NYSPSL. If employees voluntarily agree to work from home or telecommute, they will retain any paid or unpaid sick leave they have accrued.

Permitted Uses

• NYSPSL permits employees to use sick leave for preventive medical care, among several other reasons. The FAQs clarify that because sick leave can be used for preventive medical care: (i) it would cover absences for routine medical appointments, such as dentist and eye doctor appointments; and (ii) it may cover absences due to temporary closure of the employer’s place of business due to a public health emergency.

• The need for bereavement leave is not a valid reason under NYSPSL.

Calculating Accrual, Pay and Hours Worked

• For purposes of calculating “hours worked” when applying the accrual method, on-call time, training time, and travel time all count; bonus and subject-to-call time do not

• When employees are paid on a non-hourly basis, accrual of sick leave is measured by the actual length of time spent performing work.

• Employees who are paid at more than one rate of pay must be paid for leave at the weighted average of those rates.

• Employers are not required to pay for accrued, but unused NYSPSL time at termination, though the employer should maintain a policy to that effect.

No Usage Waiting Period

• Employers cannot set a sick leave usage waiting period for new hires. Employees hired on or after January 1, 2021 can use their NYSPSL as it accrues.

Interplay With Other Laws

• The FAQs are silent as to whether leave under NYSPSL and leave under the New York City Earned Safe and Sick Time Act (“ESSTA”) can run concurrently. However, the FAQs’s answer to the question regarding whether employees can file complaints in New York City for violation of the State law seems to indicate that they do: “New York City may continue to enforce the provisions of the New York City Paid Safe and Sick Leave Law to the extent that such provisions meet or exceed the end standard or requirements for minimum hour and use set forth in the New York State Paid Sick Leave Law, as determined by the Commissioner of Labor.”  The same is presumably true for Westchester County’s Earned Sick Leave law, though the FAQs are silent on that point.

• Leave under NYSPSL is an additional benefit to New York State COVID-19 leave.

• Leave under NYSPSL is in addition to any other applicable federal or state leave entitlement, though employees may choose to use NYSPSL concurrently with Paid Family Leave (“PFL”) if their employer allows it. Taking sick leave at the same time as PFL may allow the employee to receive their full salary for all or part of the leave.  However, an employee cannot receive more than their full wages while receiving PFL benefits.

• Employers who offer PTO in excess of what is required by NYPSL’s carryover, accrual and use requirements are not subject to any further obligations under the law.

Notice

• There is no specified notice or time period requirement under the law, provided, however, that the employee makes an oral or written request to the employer prior to using the accrued sick leave. Employers can waive this requirement altogether.

Collective Bargaining Agreements (“CBAs”)

• CBAs entered into on or after September 30, 2020 may provide for different leave benefits so long as they are “comparable benefits for the employees” to those required by NYSPSL, and the CBA specifically acknowledges the provisions of Section 196-b of the Labor Law.

• The NY DOL recommends that the “comparable benefits for the employees” be explicitly identified and labeled as such in the CBA to avoid confusion or misunderstanding.

Employer Takeaways

Despite the issuance of the FAQs and NYSPSL having been in effect for more than three weeks, a number of questions still remain regarding employer obligations under the law.  The FAQs presently fail to provide employers clear and definitive guidance concerning a number of critical questions, including:

• Employer Size: To determine the amount of leave employers must provide under NYSPSL, must employers count their employees nationwide or just those within New York State?

• Calculation of “Net Income”: To determine the amount of leave employers must provide under NYSPSL, how must employers calculate their “net income?”

• Frontloading Sick Time: If an employer frontloads sick leave at the beginning of the year, is the employer relieved from carryover obligations?

• Cap on Carryover: Can employers place a maximum cap on the amount of sick leave that must be carried over from one calendar year to the next calendar year?

• Reasonable Documentation: Can employers require employees who use sick leave to provide reasonable documentation proving that the absence was for a covered reason?

While we will continue to monitor developments to NYSPSL (in addition to the recent amendments to the ESSTA) employers should review their existing sick leave policies to ensure compliance in light of the FAQs.  Employers should also continue to monitor the NY DOL website for additional regulations or guidance.

*Jamie Moelis, a law clerk in the Labor and Employment Practice Group, contributed to this article