Often, a new law raises questions beyond its statutory language. Such is the case with the New York City Sick Time Act, which was amended between its initial enactment in 2013 and its implementation date of April 1, 2014. The Department of Consumer Affairs, which is charged with insuring compliance with the Act, has identified issues of concern, which will be the subject of a public hearing this week. I hope that all of you have distributed or posted information about the Act in your workplaces, not only in English but in the languages of non-native English speakers. Here are the open issues and my expectations as to how the city will address them:
HOW TO COUNT EMPLOYEES: All employers of five or more workers must provide paid sick leave under the Act. If the workforce fluctuates per week, business size for these purposes shall be the average number of employees during the first 80 days of operation during the calendar year.
JOINT EMPLOYMENT: What if an employee works through the auspices of a temporary agency? For these purposes, the business must count the individual, even if paid indirectly through the agency, for the purpose of calculating whether the threshold number of five has been met. Both employers are jointly and severally liable for compliance.
WORK OUTSIDE THE CITY: If the employer is Long Island based, the hours worked in the city count toward establishing a right to sick leave. However, the converse is not true. If a NYC business has a worker who telecommutes from Westchester, paid sick leave will not be required.
INCREMENTS FOR TAKING SICK LEAVE: An employer can set a minimum number of hours that a worker must take on a given day, but it should not exceed four hours.
NOTICE REQUIREMENTS: This is one area in which the City is expected to put greater burdens on employers. For unexpected leaves, you will need to implement a written policy with instructions as to calling in. Those of you who have my employee handbooks are in good shape; if not, we need to speak. For planned leaves, the City will attempt to set a maximum of 7 days advance notice. You can surely imagine that this will create problems for employers who have insufficient time to arrange for substitutes or who have already granted vacation or other leave to coworkers.
DOCTORS’ NOTES: Your employment manual may permit employers to request documentation for sick leaves of more than 2 days. The City’s proposal will extend this to 3 days.
DOMESTIC WORKERS: The City is urging that they be entitled to two days of paid sick leave per year, with payment calculated consistent with “days of rest” pay.
PAY RATE: For restaurant workers, for whom a lower minimum wage is applicable because of tip credits, the proposed rate will be the general minimum wage. For commission only salespersons, the rate will be the minimum wage or base wage, whichever is higher.
SALE OF BUSINESS: All successors in interest will be required to carry over any accrued sick time for employees. If the successor employer has less than five employees, the continuing employee would not be entitled to accrue additional sick leave but would be entitled to use the existing time until exhausted.
ENFORCEMENT: Department of Consumers Affairs is seeking the power to investigate violations of the law and, further, to conduct investigations in conjunction with state and federal agencies charged with protecting employee rights. Expect more memoranda of understanding!
I expect that all of the above will be codified within 60 days so the safest way to proceed is to treat this as law from this point forward.
Businesses which operate using the same employees in both NYC and the suburbs or adjacent states will have the greatest bookkeeping burdens so long as they do not have existing policies which provide for sick leave. Payroll companies must be instructed on the application of the law and you should confirm that their calculations are consistent with the statute and your interests.
Have a question or comment?
Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.