By Katherine L. Wood, Esq.
Employers who still have questions about their obligations under New York State’s paid sick leave law are not alone. By now, many employers are familiar with the basic requirements of this new law (our in-depth article on the basic requirements of the law can be found here). However, many questions remained even after the Department of Labor issued guidance (our article on the guidance can be found here. This article aims to provide answers to some of the most frequently asked questions from the employer’s perspective on the paid sick leave law.
1. Do I need to provide paid sick leave to my part-time employees?
Yes. The law makes no distinction between part-time and full-time employees. All employees must be able to accrue and utilize paid sick leave.
2. I already provide my employees with paid time off (“PTO”). Do I need to provide additional time off?
No, as long as your PTO policy provides at least the legally required amount of paid time off, and the policy meets the accrual, carryover, and use standards. In short, for your PTO policy to be sufficient, the policy must meet all of the minimum standards of the paid sick leave law.
Because the law has such specific standards, many employers may find that their existing PTO policies are not compliant with the paid sick leave law. To become compliant with the law, some employers are opting to add a compliant paid sick leave policy separate from their existing PTO policies.
3. My current PTO policy requires an employee to be employed with us for a certain time frame before becoming eligible for PTO. Is this okay?
Paid sick leave applies to each employee, regardless of length of time employed, and employees must begin accruing paid sick leave on their first day of employment.
If you are using your existing PTO policy instead of implementing a separate paid sick leave policy, you will need to revise the policy to apply to all employees immediately upon employment. If you are supplementing an existing PTO policy with a separate, distinct paid sick leave policy, it is okay to have the waiting period apply to the PTO, so long as the waiting period does not apply to paid sick leave time.
4. How does carryover of unused time work? Can I make my employees “use or lose” their paid sick leave?
Employers must carryover each employee’s accrued, unused paid sick leave to the following calendar year. However, the employer can limit an employee’s use to a total of 40 hours (or 52 hours, if the employer falls into that category) per year, regardless of how much time is in their paid sick leave banks. The rationale for this is so that an employee does not have to re-start accruing paid sick leave each calendar year if they took little or no paid sick time the prior year.
5. If I don’t want to keep track of accruals, can I front-load employees’ paid sick leave?
Yes. Employers are permitted to front-load employees’ paid sick leave at the beginning of the calendar year. Many employers are opting to do this to avoid tracking accruals. However, for employers that have a high rate of turn over or many part-time employees (who accrue leave slower), it may make more sense to use the accrual method.
6. Can I ask employee for documentation verifying why he or she is taking paid sick leave?
Employers may ask the employee to self-report the reason for their absence to the extent that it is to ensure that the leave is taken for a qualifying reason under the law rather than for other non-qualifying reasons such as car trouble. However, employers cannot request documentation, including medical documentation, that sets forth the reason for the leave. In some circumstances, employers can request documentation that verifies that the employee does require leave, but this can only be requested from the employee if his or her absence will be longer than 3 consecutive days. Then, the employer may only ask for documentation on the 4th day of absence.
7. How much notice does my employee have to provide me prior to taking paid sick leave?
The law does not provide a notice period requirement for an employee to use leave. It only requires that the employee give “oral or written notice” prior to taking the accrued sick leave.
8. Can an employee take Paid Family Leave (“PFL”) consecutively with paid sick leave?
Yes. If the employer allows employees to take PFL and paid sick leave consecutively, the employee may choose to do this. However, the employee cannot receive more than their full wages while collecting PFL benefits.
The law remains unclear on concurrent use of paid sick time with other leave, such as PFL, FMLA, and disability.
9. Can I discipline an employee who I discover is misusing paid sick leave?
Yes. While employers cannot retaliate against an employee for lawfully utilizing paid sick leave, if the employer becomes aware that an employee is misusing paid sick leave, disciplinary action can be taken against the employee.
Hurwitz & Fine continues to monitor and analyze updates to New York State’s paid sick leave law. Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com.