Are your New York Sick Leave Policies Ready for January 1?

If you own or operate a private business in New York, and you haven’t updated your sick leave policies since before the pandemic, they are almost certainly out of date. This could be creating risk for your company.

Keeping up with the numerous changes to local sick leave laws may not have been your top priority recently. (Lucky for you, your employment attorney loves doing it for you.) In the last 8 months, you’ve likely been busy (a) furloughing or laying off employees, (b) hiring employees, (c) adjusting to virtual workplaces, (d) crafting and executing reopening plans to keep your employees and clients safe, (e) struggling to understand PPP loan forgiveness rules, (f) trying to administer leaves under the Federal COVID-19 leave law (the Families First Coronavirus Response Act or FFCRA), (g) trying to keep your sanity while juggling work commitments with the needs of homeschooling or “virtual learning” children, or (h) any combination of the above. 

But now you’ve found a breather to ensure your New York sick leave policies are up to date.  Here are a few updates you might have missed. Additionally, this non-exhaustive NY-specific chart identifies several key obligations and distinctions between these laws to help you update your own sick leave policies:

• NYS Quarantine/Isolation Leave. Effective March 18, 2020, New York employers were required to provide employees with “quarantine or isolation leave” of up to 14 days (depending on employer size and net income) for employees’ or their children’s ordered quarantine or isolation due to COVID-19.  This leave is available in addition to other sick leave benefits employees may have, and may also entitle employees to benefits under the New York’s Paid Family Leave Benefits Law. 

• NYS Sick Leave. Effective September 30, 2020, New York employers were required to begin providing up to 56 hours per year of paid sick leave (depending on employer size and income) for “sick” and “safe” leave purposes.  Employees may begin using available, accrued sick leave on January 1, 2021, without a waiting period.  Frontloading is available, and carry-over of unused sick time is required (though employers may limit use of sick leave to the statutory maximum). The Department of Labor has also provided guidance regarding telecommuting employees.  However, the existing guidance on this law still leaves several questions about sick leave usage under this law unanswered. It is likely that additional guidance will be forthcoming. 

While many aspects of the New York State Sick Leave Law may sound familiar to those already complying with local NYC and Westchester Sick and Safe leave laws, there are important differences between the state and the local laws (not least of which is Westchester’s requirement that safe leave be provided separately from sick leave).  Compliance with one law will not necessarily guarantee compliance with the other.  Please see the below chart for further details. 

• NYC Earned Sick and Safe Leave Law Amendments. Effective September 30, 2020, New York City updated its Earned Sick and Safe Leave Law.  Among other things, this amendment also provides that large employers may be required to offer up to 56 hours of paid sick leave starting January 1, 2021, eliminates employee waiting periods to use accrued sick time, requires that employers reimburse employees for costs incurred in providing medical documentation to substantiate sick time taken, and requires that employers list on employees’ pay stubs (or any document issued each pay period) the amounts of accrued and used leave and the total balance of accrued sick time. 

Having compliant sick leave policies — and sound practices to assure that requests for leave are processed lawfully in conjunction with other available types of leave such as FFCRA, FMLA, and New York Paid Family Leave — is key to avoiding inadvertent (and often avoidable) missteps in leave administration. It should further be noted that each of these laws may carry additional posting/notification and record-keeping requirements, not reflected in the above chart. 

For specifics on how these laws apply to your business and employees, and how they integrate with your business’ policies on other leaves or collective bargaining obligations, please feel free to contact us for additional information.