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Paid Sick Time Arrives in New York City; Department of Consumer Affairs Releases Proposed Paid Sick Time Rules and Schedules Public Hearing on April 29, 2014; Also Releases Notices in Various Languages

Written By Michael Arnold

The New York City Earned Sick Time Act goes into effect today. In other news, the New York City Department of Consumer Affairs has released proposed rules to “establish requirements to implement the [paid sick leave] Act and meet its goals, and provide guidance to covered employers and protected employees.” The proposed rules are available here. The DCA has scheduled a public hearing on the proposed rules for April 29, 2014. Anyone can submit comments to the DCA in advance of the hearing. Some highlights from the proposed rules include:

  • A business in a joint employment relationship would count each employee jointly employed with its own employees. So, in the example the rule provides, if an employer who jointly employs three workers from a temporary help agency also has three permanent employees, it will have six employees for purposes of the Act. And it would also hold both employers jointly and severally liable for any failure to comply with the Act’s requirements.
  • The Act would cover a telecommuter if the individual performs work, including work performed by telecommuting, while the individual is physically located in New York City, regardless of where the employer is located. The example provided by the rule essentially says that if the employer is located in the City and the employee works outside the City however, the Act does not cover employee.
  • Employers would be prohibited from requiring an employee to use other leave concurrently with paid sick leave (except as required by law, i.e. FMLA).
  • Employees could decide how much paid sick time to use, provided that the employer may set a minimal increment (not to exceed four hours per day) an as long as that minimal increment is reasonable under the circumstances.
  • Employers would be required to establish written policies addressing the employer’s notice requirements. Where the need for leave is not foreseeable, the written policy must address how the employee can notify the employer as soon as practicable (i.e. by the use of a call-in number and proper call-in procedure) and, in determining whether the employee satisfied this requirement, the employer must consider the facts and circumstances of the situation. Where the leave is foreseeable, the written policy must address how the employee can provide “reasonable” notice, and employers may require the employee to provide written notice as part of that policy. If the employer fails to distribute a written copy of its policy, it cannot deny the use of sick time on the basis of the employee’s non-compliance with that policy.
  • Where an employee is absent for more than three days, employers can require them to provide “reasonable documentation” that they used the sick time for permissible purposes. A signed doctor’s note indicating the need for the amount of sick time taken would satisfy this requirement. The employer cannot require the employee to obtain a doctor’s note from a second doctor.
  • If the employee uses sick time during hours that he or she would have worked overtime, the employer need only pay the employee at his or her regular rate and not at the overtime rate.
  • The employee is not entitled to compensation for lost tips or gratuities where they take sick time, but the employer, in that case, must still pay them at the minimum wage for those sick hours.
  • Where the employee works on commission or on a piecework basis, the employer must pay an hourly rate that is the greater of the base wage or applicable minimum wage.
  • If the employee works at different wage rates, the hourly rate is the rate the employee would have been paid during the time the employee used the sick time.
  • Employers would have to pay sick time no later than the next regularly-scheduled payroll, unless the employer asked for written documentation or verification from the employee about sick time use, in which case, the employer may wait until the next regularly-scheduled payroll after the employee provides the documentation or verification.
  • In a sale of business context, employees would retain their accrued sick time if they continue to work for a successor employer within New York City.
  • Employers would be required to distribute or post their policies related to paid sick time in some acceptable manner, including, among other methods, through distribution to each employee, distribution of a handbook containing the policy, or by posting it on the intranet or in a conspicuous area.

The DCA has also issued updated form notices in Spanish, Italian and Russian. You can access those notices here. It will make form notices in Chinese, French-Creole (Haitian Creole), Korean, Arabic, and Bengali available for download in the near future.

We will continue to update this blog as the DCA posts new information about the Earned Sick Time Act. You can also access our previous coverage here.

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Author

Michael S. Arnold

Member / Chair, Employment, Labor & Benefits Practice

Michael S. Arnold is an employment attorney at Mintz. He counsels clients on HR issues, defends management and senior executives, and guides companies through employment issues related to transactions. Michael is Chair of Mintz's Employment Litigation & Arbitration Practice.