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No News Yet on NYS Paid Sick Leave Regs; All W-2 Employees are Covered; Front-Loading Sick Leave Accruals on January 1, 2021 an Option

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As soon as we hear from the NYS Department of Labor on the pending NYS Sick Leave regulations for employers to fulfill the mandate, we’ll follow up this update. As a reminder: this new mandate applies to employers with 5 employees or more. (Employers with 4 or less employees may be eligible for only 40 hours of unpaid sick leave, depending on their annual revenue.)

At this writing, the mandate includes all W-2 employees:

  • Full-time
  • Part-time
  • Intern
  • Temporary
  • Seasonal
  • Per Diem.

With regard to the September 30th deadline to start tracking accruals of 1 hour of NYS Paid Sick Leave for every 30 hours worked: you’ll also have the option of front-loading (e.g., granting the accrual all at once on January 1, 2021) the NYS Paid Sick Leave accrual so it’s available to employees to use on January 1, 2021 as mandated – this date is the most important of the 2 deadlines – consequently, you will have time to plan.

If your current paid sick leave accruals are more generous than 40 hours annually, you’ll in all likelihood be able to update your current policy accordingly / sooner. Otherwise, you’ll need to update and/or create your new NYS Paid Sick Leave policy once the regulations are published, ready for use by employees effective January 1, 2021.

If your employees have questions about the status of NYS Paid Sick Leave, you may want to let them know that all employers are waiting for the NYS Department of Labor to publish the regulations containing required employer guidance.

In the meantime, here are a few key NYS Paid Sick Leave points for consideration and planning purposes:

  • 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  (or 56 if you have 100 employees more) 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 1st 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.
    • The pending regulations will clarify the September 30, 2020 accrual process. Again, at this writing, starting the accrual process (1 hour for every 30 hours worked) as of September 30, 2020 is optional. If you choose not to accrue sick leave for each employee from September 30 – December 31, 2020, you must front-load NYS Paid Leave balances as of January 1, 2021 to ensure that employees have sick time available to use on that date.
  • New Employees Can Use Accrued Paid Sick Leave Available Starting From Their First Day of Hire as of January 1, 2021: 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 Etc. Paid Sick Leave Eligibility: At this writing (and until NYS DOL publishes the regulations clarifying the scope), all W-2 employees are covered by the NYS Paid Sick Leave effective January 1, 2020:
  • Full-time
  • Part-time
  • Temporary
  • Seasonal
  • Per Diem.

 

  • 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 with any questions or concerns you may have, 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 – Deb@DebBest.com or 518-527-9261 (confidential voice and text message).