New York Nonprofit Employees Get Additional Paid Sick and Safe Leave Rights, Part 2

What do these new laws mean for nonprofit employers in New York?

New York State’s Paid Sick/Safe Leave Law (“NYSPSSL”) took effect on September 30, 2020.  NYSPSSL, which amends New York State Labor Law (Section 196-b), requires all employers in New York State (nonprofit and for-profit organizations, alike)—regardless of size—to provide employees with a minimum of 40 hours of paid or unpaid job-protected sick or safe leave or 56 paid hours per calendar year—depending on the employer’s size and net revenue—for employee medical and/or certain safety-related reasons.

New York City amended its paid sick and safe leave law known as the Earned Safe and Sick Time Act (“ESSTA”) in response to NYSPSSL, effective September 30th too.

Below is an PART 2 explaining more about the New York State and City paid sick/safe leave laws.  (This new State law is in addition to COVID-19 leave provided under New York State’s Emergency COVID-19 Quarantine Paid Sick Leave).

Read Part 1 here.

Is the leave job-protected?

Yes, under both NYSPSSL and ESSTA, an employee must be restored to their position following return from safe/sick leave with the same pay and other terms and conditions of employment.  NYSPSSL prohibits employers from discriminating or retaliating against an employee for exercising their rights, including, but not limited to, requesting sick leave and using sick leave.

Notably, under ESSTA, employers with covered employees^[1] working in New York City must also provide employees with a summary of the accrued and used sick leave amounts, if requested by the employee, within three business days of such request.

Where can I find more information?

New York State Department of Labor has issued its own FAQ regarding the law.

Does an employer have to provide leave under these laws if it already provides paid sick leave to employees?

An employer is not required to provide sick leave under this law if the employer already has a sick leave policy or time off policy for sick and safe leave that provides employees with an amount of leave which meets or exceeds the requirements of NYSPSSL or ESSTA, and also satisfies the accrual, carryover, and use requirements of the law.

How does New York City’s amended paid sick/safe leave law differ from the State’s new paid sick/safe leave law?

ESSTA differs from NYSPSSL in a few notable respects:

• Unlike NYSPSSL, under the ESSTA, employers who require employees who have been out on sick/safe leave for more than three consecutive workdays to supply documentation must reimburse employees for any costs or fees imposed on the employee to obtain those documents.
• Employers must list on employees’ paystubs or other document to be issued to that employee, each pay period, the amounts of accrued and used leave and the total balance of accrued unused leave. With respect to the paystub information requirement, employers that could not satisfy that requirement by September 30, 2020, but were working in good faith on implementation had until November 30, 2020, to ensure compliance without a penalty.
• On October 21, 2020, New York City updated its Notice of Employee Rights of paid sick and safe leave which must be distributed to all employees in both English and the employee’s primary language—once the document has been translated by New York City’s Department of Consumer and Worker Protection  (“DCWP”) into that language on its website. Under the amended ESSTA, employers must distribute this notice to all new hires upon hire and to current employees by October 30, 2020.
• ESSTA requires employers to maintain a written safe and sick leave policy that explains how to use their benefits and informs employees of the amount of their sick/safe leave use and balance.
• ESSTA imposes a civil penalty for failure to give written notice of employee rights (discussed more fully below)

Must NYSPSSL Be Provided in Addition to NYC Paid Sick/Safe Leave?

No. Because NYC paid sick/safe leave provides the same amount of paid leave as required under NYSPSSL, employers with employees in New York City need only provide the leave required under ESSTA.

Our Organization is Located Outside New York, But During the Pandemic, My Employees are Working from Their Home Located in New York. Are They Entitled to This NYC Paid Leave?

Employees who telecommute are covered by the laws for the hours when they are physically working in New York State, even if the employer is physically located outside New York State.

What information must an employer provide to an employee about their rights?

Under NYSPSSL, employers must provide a summary of the accrued and used sick leave amounts, if requested by the employee, within three business days of such request. As noted before, under ESSTA, employers must provide a written notice of employee rights.   Both laws prohibit retaliation against an employee in any way for exercising their rights to use sick/safe leave.

What are the penalties for non-compliance?

NYSPSSL is an amendment to New York State’s Labor Law. Under New York State Labor Law, failure to provide employee benefits such as sick/safe leave, is equivalent to a failure to pay employee wages. 

An employer’s failure to provide sick/safe leave as required under the law, may result in civil/administrative actions and/or criminal penalties to the employer, including but not limited to, an order assessing the full amount of the wage underpayment, 100% liquidated damages, and civil penalties in an amount up to double the total amount to be due.

Under ESSTA, the NYC Department of Consumer and Worker Protection may impose a penalty of:

(1) three times the wages that should have been paid, where sick/safe leave is taken but not compensated;

(2) $500, for each instance of safe/sick time requested by an employee but unlawfully denied by the employer and not taken by the employee or unlawfully conditioned upon searching for or finding a replacement worker, or for each instance an employer requires an employee to work additional hours without the mutual consent of such employer and employee to make up for the original hours during which such employee is absent;

(3) for each instance of unlawful retaliation, full compensation including wages and benefits lost, $500 and equitable relief as appropriate; and

(4) for each instance of unlawful discharge from employment: full compensation including wages and benefits lost, $2500 and equitable relief, including reinstatement, as appropriate; and

(5) for each employee covered by an employer’s official or unofficial policy or practice of not providing or refusing to allow the use of accrued safe/sick time, $500. 

Employers are also subject to civil penalties on a per employee basis.

Employees do not have a private right of action to proceed in court but the corporation counsel may bring a civil action in court.  If a violation of the law is found, an employer may be subject to civil penalties of up to $15,000 plus additional relief of $500 to each employee covered by an employer’s policy or practice of not providing or refusing to allow the use of earned time. 

Additionally, employers who did not provide employees with a proper notice of employee rights may receive a civil penalty of no more than fifty dollars, per each employee who was not given appropriate notice.

What should New York employers do now?

Review and where needed, update your employee handbooks to address these legal developments in your sick/safe leave policies and distribute those updated policies together with notices of employee rights if your staff works in New York City — even from home. 

Get a signed acknowledgement of receipt (or “read receipt”) of the notice of employee rights, and train your managers regarding their obligations and employees’ rights in this regard as well as any pertinent reasonable accommodation requirements. 

Ensure your payroll recordkeeping is consistent with these legal developments.  Maintain employee payroll records for six years which includes the amount of sick/safe leave accrued and used by each employee on a weekly basis.

[1] The recent amendments to ESSTA remove the earlier requirement that an employee work more than 80 hours in a calendar year to be covered by the law and then wait 120 days after starting employment before being able to use accrued leave.

Instead, under ESSTA, employees may use their paid sick/safe leave immediately upon accrual.  This change conforms to the NYSPSSL.

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