As we have previously discussed in our post after the New York State (NYS) budget passed earlier in 2020, the New York State Paid Sick Leave law took effect on September 30, 2020 with that being the day that the sick leave must begin to accrue, unless the employer chooses to award all of the required paid sick leave to its employees on January 1, 2020. Otherwise, the requisite sick leave must begin to accrue now in the amount of one hour of sick leave for every thirty hours worked. This new law, passed in April 2020 with the New York State budget, applies to all employees regardless of how often the employee worked or whether he or she is exempt or non-exempt from overtime under the federal Fair Labor Standards Act . However, despite the law’s title reference to paid sick leave, for New York employers with 4 or less employees, they only need to provide forty hours per year of unpaid sick leave. Employers with between 5 and 99 employees must provide 40 hours of paid sick leave per year, and employers with one hundred or more employees must provide fifty-six hours of paid sick leave per year. The new sick leave can be taken beginning on January 1, 2021.
The new paid sick leave law provides a dilemma for those employers who currently provide paid time off (“PTO”) for all different types of absences (sick, personal, vacation etc.), as a provision of the law states that such employers who currently provide more PTO than the paid sick leave required by the law, need not provide additional PTO. Many employers have assumed that they could inform the employee that they would be responsible to decide how to use their PTO and thereby the employer would be in full compliance with the new law. The dilemma is that if an employee of such an employer uses up all of his or her PTO in 2021 for non-sick purposes (e.g., vacation or personal time), he or she could then claim a right to take the applicable paid sick leave later in 2021. A logical solution to the dilemma could be that the employer simply track the reasons for PTO usage, and deny PTO requests for non-sick purposes if the usage would cut into the paid sick leave requirement. This of course would present a record-keeping nightmare, and perhaps more importantly, likely infuriate the employees who would rather take paid vacation/personal time than paid sick time. Accordingly, many employers have already come under pressure to provide additional PTO, regardless of how much PTO they provide now.
Fortunately, we are told that the New York State Department of Labor is working on regulations regarding the new law which could assist employers in resolving this dilemma.