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NYS Paid Sick Leave: Guidance Issued, but Questions Still Remain

By Katherine L. Wood, Esq.

On October 20, 2020, after much anticipation, the New York State Department of Labor (“DOL”) released guidance on the State’s new paid sick leave law, which was passed earlier this year.  Accrual of paid sick leave under the law went into effect on September 30, 2020, amid numerous compliance questions from employers.  While the newly released guidance answers some questions that employers may have, many common questions remain unanswered.  This article discusses the highlights of the new guidance and identifies areas where employers must still tread carefully as further clarification has not been provided.

The DOL guidance discussed in this article can be found here.  Our in-depth article on the basic requirements of the law can be found here.

Highlights of New Guidance

Eligibility

The law itself is not specific in its definition of which employees are eligible for paid sick leave under the law.  However, the guidelines now clarify that all private-sector employees, including part-time employees, overtime exempt employees, and part-time seasonal employees, must be provided with paid sick leave under the law. 

Additionally, there is no minimum period of time that an employee must work for the employee to be eligible to accrue or use paid sick leave.  Employees are immediately eligible to accrue and use such leave when they begin working for the employer.

Telecommuting

Employers cannot require an employee to telecommute or work from home instead of taking paid sick leave.  However, employers can offer their employees the option of working from home or telecommuting in lieu of taking paid sick leave.  In such a situation, if the employee chooses to work from home instead of taking sick leave, his or her sick leave time will not be charged.

Employers who are physically located outside of New York State, but who have employees who telework physically from a location within New York State, must provide these New York State employees with paid sick leave.

Tipped Workers

Employers do not have to pay employees for tips/gratuities lost while an employee is out on sick leave.  However, employees who are paid a tipped wage that allows for a tip credit/allowance must be paid at a rate of pay of at least the applicable statutory minimum wage if the tipped wage is less than minimum wage.

Overlap with Paid Family Leave

If an employee is taking paid sick leave to care for a family member, the employee may qualify for New York State Paid Family Leave and paid sick leave at the same time.  Employees may choose to use sick leave during the Paid Family Leave period if the employer chooses to allow it.  This would allow the employee to receive a higher percentage of his/her salary during the leave period.  However, employees cannot receive more pay than their full wages when taking Paid Family Leave and paid sick leave together—they are capped at receiving their full wages.

What Questions Still Remain?

The biggest question left unanswered is: how do we modify our existing paid time off policy to comply with the new law? 

The law is clear that employers who already provide paid time off or paid sick time to their employees do not need to provide additional time on top of the existing policies, so long as the policies meet all other requirements of the law such as accrual and usage.  For employers who already provide regular sick time pay, modification of such a policy is relatively straight forward.  However, if the employer has an existing paid time off policy that does not distinguish between time taken for vacation and time taken for sick leave, the modification process can quickly become complex. 

Employers may also have questions on the carry-over requirement, requests for documentation, and their tracking obligations, which have similarly been left unclarified. 

In scenarios where questions remain for an employer, we recommend consulting with experienced labor and employment counsel who can assist with modifying the employer’s specific policy.

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