Employ 5 – 99 Employees? Policy Planning to Consider Before the NYS Paid Sick Leave September 30th Effective Deadline

This break from COVID-19 workplace updates is brought to you by the upcoming September 30, 2020 NYS Paid Sick Leave effective date deadline (for accrual) and the January 1, 2021 effective date deadline (for employee usage). (And for employers with 100 or more employees, the only difference in the planning points below is that the required annual NYS Paid Sick Leave accrual for each employee is 56 hours rather than 40 hours. Your accrual calculation mileage, for that reason, will vary. If applicable, unionized employers will need to negotiate an updated collective bargaining agreement to provide a benefit comparable to NYS Paid Sick Leave.)

The other caveat is that in the absence of the expected NYS Paid Sick Leave regulations from NYS Department of Labor (DOL; hopefully to be published soon, some of the planning points below may be subject to further clarification or change).  These multiple open questions are thanks to the inclusion of the NYS Paid Sick Leave Law in the photo-finish rush of this year’s NYS budget enactment. (Note: this is a completely separate / different employer mandate from the recently enacted NYS COVID-19 Sick Leave.)

Key NYS Paid Sick Leave points for your consideration and planning:

• Separate Paid Sick Leave Policy: If you currently combine all of your Paid Time Off into one bank of PTO hours, in all likelihood, you’ll need to create a separate Paid Sick Leave Policy and take 40 annual hours from your annual PTO allotment. (Frustrating re: the additional administrative work these NYS mandates without employer input create for employers. If you already have a Paid Sick Leave Policy, it’s potentially less work.)
  • If you award PTO as of January 1^st of each year, that should also work for the new Paid Sick Leave set-aside – it’s frankly less work than the accrual-as-you-go calculation method of accruing 1 hour of NYS Paid Sick Leave for every 30 hours worked.
  • Language re: the mandated expanded eligible reasons for using Paid Sick Leave, e.g. that it’s job-protected, no retaliation for using it, mandated confidentiality of employee medical information, etc.
  • It’s not clear with regard to starting the September 30, 2020 accrual process, below.

• Calculating NYS-Mandated Paid Sick Leave Accruals Starting September 30, 2020 for a Potential December 31, 2020 Mandated Rollover: The yet-to-be published NYS DOL regulations hopefully will clarify that:
  • If you’ll need to rollover the approximately (and theoretical at this writing) 18 hours of PTO-designated paid sick leave accruals starting September 30^th for each full-time employee (and create a record of the accruals in your Payroll system, even if you choose to generically rollover the correct amount of paid sick leave accruals from that date):
    • For example, for a 40-hour a week full-time theoretical employee (assuming no paid time off between the below dates):
      • Between September 30, 2020 and December 31, 2020 are 13 weeks and 1 day.
      • 40 hours x 13 weeks  = 520.
      • To calculate the mandated 1-hour accrual for every 30 hours worked: 520 / 30 = 17.3 paid sick leave accrual hours to rollover from 2020 to 2021.
      • Fortunately, this is a one-time calculation. For 2022 and beyond, you’ll accrue as you normally do.
        • However, the law requires that you rollover a minimum (or maximum, for pay budgeting purposes) of 40 remaining paid sick leave hours every year thereafter.
          • Thankfully, the law doesn’t require the payout of paid sick leave upon termination of employment – ensure that you include that caveat in your new / updated Paid Sick Leave policy, too.
        • The recommendation is to also reach out to your Payroll service provider re: their plans for tracking NYS Paid Sick Leave.

• New Employees Can Use Accrued Paid Sick Leave Starting From Their First Day of Hire: Limits banning or restricting paid sick leave usage during the new hire orientation period (e.g., the first 60 or 90 days) must be removed from your policies.

• Review and Update Your Attendance Policy: Because of the expanded eligible reasons for taking paid sick leave starting January 1, 2020, such as caring for family members (and that employees can request it verbally or in writing), you’ll need to ensure that your Attendance Policy is compliant.

• Prepare for Part-Time Paid Sick Leave Eligibility: The new law doesn’t specifically identify whether only full-time employees are eligible – hopefully the pending NYS DOL regulations will clarify.
  • Example: for the mandated accrual paid sick leave formula earning 1 hour of sick leave for every 30 hours worked:
    • A theoretical part-time employee working 25 hours a week
      • 25 x 52 = 1300 hours.
      • 1 hour for every 30 hours worked accrual: 1300 / 30 = approximately 43 hours of paid sick leave. (The maximum mandated amount is 40 hours.)

• Be Prepared to Communicate Any New / Updated Sick Leave Policies to Employees: once the regulations are published; the new NYS Sick Leave law mandates it.

Please feel free to reach out if you need to have your policies reviewed / updated / created, as well as to receive a grid laying out planning to consider in advance of NYS DOL publishing the final regulations for NYS Paid Sick Leave. Take care, and be well.