New York State has adopted Sick Leave requirements for employers to follow under NY Labor Law § 196-b. With the new rule having become effective on 12/22/21, employers and their HR teams need to get up to speed quickly. 

The new rule requires employers of 3 different categorical sizes to provide a minimum number of paid sick leave hours for employees depending on the size of the employer and its net income. 

The rule does the following:

• Establishes standards of how employees shall accrue sick leave at a rate of no less than 1 hour per every 30 hours worked; 
• Protects employees from having to disclose confidential health information to employers as a condition to taking sick leave; 
• Sets up conditions for employees carrying over unused sick leave over to the following calendar year; 
• Creates protections to prevent employers from retaliating/discriminating against employees for exercising his/her sick leave rights; 
• Requires employers to provide written records of sick leave accrual upon employee request; 
• Requires that employees returning from sick leave be restored to their position prior to the sick leave with the same pay & other terms / conditions of employment; & 
• Allows for collective bargaining agreements to be entered into that provides for paid sick leave. 

Before the rule became effective, employers commented and expressed their concerns, under the regulatory process, and the government's responses have clarified the following facts:

• Newer employees will abuse sick leave because the rules allow employees to immediately use sick leave upon accrual; 
• Carrying over unused sick leave days to following years is problematic (per DOL, employers may either: (1) give employees the option to voluntarily elect to use & receive payment for paid sick leave prior to the end of a calendar year or carry over unused sick leave; or (2) only allow employees to carry over unused sick leave);
• Conflicts can arise between sick leave requirements and other leave policies if not clarified in the employer's policy manual;
• Employee abuse systems need to be in place within an employer's policy manual or issues will arise; and
• Collective bargaining agreements need to be addressed to comply with the new rule.

This new sick leave rule will continue to raise concerns by employers and employees, but proactive employees with great policy manuals / collective bargaining agreements, which have been updated to reflect the new rule will win the day. Otherwise, there are going to be a lot of discrimination and retaliation claims when sick leave issues arise. 

To further encourage mass vaccination, the Governor signed Senate Bill S2588A into law, which requires employers to provide employees with a "sufficient period of time", but not more than four (4) hours, of paid leave to receive each COVID-19 vaccine injection. The law is effective immediately and expires on December 31, 2022.

Employers must pay employees at their regular rate of pay for all hours of vaccination leave and may not require employees to first use other entitled leave (e.g. NYS Paid Sick Leave, NYC Paid Sick and Safe Leave, Employer sick leave policy). 

The law is noticeably silent on what if any verification an employer can request from an employee to prove they received the vaccine during the leave and how much notice an employee needs to provide prior to using such leave. The Department of Labor has yet to issue guidance on these issues.

How much notice before taking leave do you think should be required?

Should employees be required to submit verification to employers that they actually used the leave to get vaccinated?

• Applies to employers with less than 500 employees.
• Applies to employees who have been employed for at least 30 calendar days.
• Excludes health care provides, emergency responders and employers with less than 50 employees where the "viability of the business as a going concern" would be jeopardized.
• The first 2 weeks are unpaid; Remaining 10 weeks at 2/3 employee's regular rate of pay.
• Leave can be taken for the following reasons:
• In adherence of recommendation of health care provider, that employee's presence at work would place others at risk because of the employee's exposure to Coronavirus or because the employee exhibits symptoms related to the Coronavirus (these conditions must render employee unable to both perform the functions of his/her job while complying with the recommendation/order);
• To care for a family member, where a health care provider or authority determines that the family member needs to remain isolated from the community because he/she has been exposed to the Coronavirus or exhibits symptoms of the Coronavirus; or
• To care for a child whose school is closed or his/her regular childcare provider is unavailable.

• Applies to employers with less than 500 employees. 
• Employers are required to pay employees up to 80 hours of paid sick leave.
• Paid sick leave may be used for the following reasons:
• To self-isolate because employee was diagnosed with Coronavirus;
• To seek medical care if employee is experiencing symptoms related to Coronavirus;
• To comply with recommendation/order by health care provider or public official that employee's presence in the workplace would jeopardize the health of others because of employee's exposure to the virus or the employee exhibiting symptoms of the virus;
• To care for a family member who qualifies under the previous provision; or
• To care for a child whose school is closed or his/her regular child care provider is unavailable. 
• Employers must pay all employees who qualify at the employee's regular rate of pay. However, if employee's leave is a result of the 4th or 5th reason above, employer must only compensate employee at 2/3 of his/her regular rate of pay. 

• The bill would take effect 15 days after it is enacted and would be effective only until the end of 2020.
• Position is protected until return from leave unless employer, who employs 25 or fewer employees, eliminates position due to a downturn in economic conditions as a result of the Coronavirus. However, employers would still have to make "reasonable efforts" to restore employee to the same or equivalent position.
• This bill, as presently constituted, does not provide protections for employees whose employment is suspended or terminated due to employer closures.