Provided by:  Jennifer Kirschenbaum, Esq.
September 15, 2020
 
 
Question:

Jennifer-

I heard from my partner that New York is mandating minimum sick leave for private employers. How does minimum annual sick leave time work for employers who lump their employee's sick, personal and vacation time under the PTO umbrella?

Thanks!
Dr. Z
 

Answer:

Good question, and one we should all be asking.  I asked Kieran Bastible, Esq. to chime in here, as he assists with many employment issues, and he has provided the following - 

Commencing January 1, 2021, nearly all New York employers must offer paid sick leave (“PSL”) to their employees, pursuant to a recent amendment to the New York Labor Law. Small employers (fewer than 4 employees) must offer at least unpaid leave. Sick leave begins to accrue on September 30, 2020 (three months before it can be used) and is job protected.(New York Labor Law Section  196-b).

Employers must allow employees to accrue paid sick leave during a calendar year at a rate of at least one (1) hour of leave for every thirty (30) hours worked.  Accrual limits are capped based on the number of employees. Employers can either award the leave as it is accrued by the employee, or “frontload” the leave at the beginning of each calendar year by providing employees with the total amount of sick leave that would accrue during the year.

Employees must be allowed to carry over unused sick leave into the following calendar year, but employer are not required to allow the use of more sick days than the yearly accrual limit.  Moreover, payout of unused sick leave upon termination also is not required. This could result in a scenario where an employee could accumulate a bank of sick time that she is not permitted to use and for which she will not be compensated upon employment termination.

Under the law, employees must be permitted to take leave for any of the following purposes: (i) the employee’s own mental or physical illness, injury, or health condition, including diagnosis, care, preventive care, or treatment; (ii) the mental or physical illness, injury, or health condition of the employee’s family member, including diagnosis, care, preventive care, or treatment; or (iii) various reasons related to domestic violence, family offenses, sexual offenses, stalking, or human trafficking regarding the employee or employee’s family member.

To avoid undue disruption to business operations, employers are permitted to require employees to use at least a minimum amount of leave (such as one or two hours), but cannot require employees to take more than four hours as the minimum.  Under the new law, employers also must provide a summary of the amounts of sick leave accrued and used in any calendar year within three (3) business days of an employee’s request.  Thus, your managers /supervisors must be made aware of this requirement before an employee so inquires.

The law also restricts the information employers can request if an employee asks to use paid sick leave. Employers may not require disclosure of “confidential information” (currently undefined) about a medical condition or a domestic situation as a condition of providing leave.

Failing to comply with the new Labor Law will result in significant exposure, and will be easily identified by employees and reportable, so, the best way to combat exposure is to carefully review your existing sick leave or PTO policies to determine whether the existing policy meets the law’s requirements – or generate such a policy if no written policy is presently in place.  Now is the time to start training your manager(s)/HR personnel on how to properly administer the new sick leave requirements.  Stay tuned for an upcoming webinar on the sick leave requirements.  For direct assistance with policies and procedures or training, call or email Jennifer or Kieran (kbastible@kirschenbaumesq.com; 516-747-6700 x. 315).