Additional guidance for employers covered by New York City’s Earned Sick Time Act has been issued by the City’s Department of Consumer Affairs (DCA), the agency currently charged with enforcing the law, in recently updated Frequently Asked Questions (FAQs). These were last updated in September 2015.
Some significant updates to the FAQs, released on January 6, 2016, are summarized below.
Written Sick Leave Policies
A new FAQ 19 in Section IV reiterates the requirement (in the Law’s implementing rules) that employers maintain a written sick leave policy, discusses information that must be included in such a policy, and clarifies that distribution of the required “Notice of Employee Rights” does not satisfy an employer’s obligation to maintain and distribute a written sick leave policy to all employees. Other FAQs on an employer’s written policy also were revised.
Front-Loading and Carryover
In Section III, revised FAQ 10 clarifies that payout at the end of the year is not required by employers who front-load sick leave on an annual basis in order to avoid the carryover obligation. Previously, this FAQ indicated that employers seeking to avoid the carryover obligation not only had to front-load sick leave at the beginning of the year, but also had to pay out unused sick leave at the end of the prior year.
FAQ 14 in Section III, addressing pro-rata front-loading for part-time employees, now states that if fewer than 40 hours were front-loaded, those employees must be able to carry over up to 40 hours of unused sick leave into the new calendar year, regardless of whether the unused sick leave was front-loaded or was provided on an accrual basis (in the case of an employee who worked more time than anticipated).
Notice of Employee Rights
A number of FAQs were revised to clarify that the Notice must be “delivered” or “individually delivered” to employees (as opposed to “provided”).
In Section I, FAQ 13 (previously FAQ 16), the example provided has been modified to refer to a franchisor/franchisee relationship (instead of a temporary staffing agency and its employees). The example states that a joint-employer relationship may exist if a franchisor “exercises some control over the work or working conditions of a franchisee’s employees.”
Another FAQ in Section I, addressing the relevant factors in determining whether an employer is a joint employer, appears to broaden the types of individuals that may be attributed to an employer for purposes of compliance with the Law. Previously, the assessment was based on “the extent to which the employer exercises formal and functional control over the employee,” but the revised FAQ states that the determination will be based on “whether the employer exercises some control over the work or working conditions of an employee.” Additionally, the DCA added a ninth factor in determining joint-employment status: whether “the business established policies or practices related to the employment, supervision, and/or working conditions of the employee.”
Employees Covered and Not Covered
In Section II, FAQs addressing the types of employees who are covered (and not covered) by the Law were modified to include “owners who are considered employees under the New York Labor Law (NYLL)” as covered employees. Conversely, “owners who do not meet the definition of an employee under the NYLL” were added to the list of employees not covered by the law.
Per Diem/On-call Employees
In Section II, FAQ 5 now omits a statement that an on-call employee who is paid for a scheduled shift, regardless of whether the employee actually works the shift, is required to be provided sick leave. While no explanation for the removal of the statement has been offered, because such an employee technically would not need to be “provided” with sick leave since he or she was paid for such a shift regardless of whether the employee actually works the shift, it is reasonable to infer that it may have been removed due to ambiguity.
In Section II, FAQ 8 now states that workers may meet the legal standard for classification as employees for purposes of the Law, even if they are considered independent contractors by their employers. Previously, the FAQ stated that workers who “may be misclassified as independent contractors” may nevertheless be employees under the Law.
In Section III, FAQ 21 clarifies that if an employee is separated after being employed fewer than 120 calendar days (i.e., before satisfying the Law’s waiting period) and then is rehired, the number of days he or she was employed previously counts towards satisfying the waiting period, as they are “credited” back to the employee. While the DCA did not provide an example, it appears that if an employee who was employed for 60 calendar days before quitting was rehired one month later, that employee would need to be employed by the employer only for another 60 calendar days in order to be eligible. Although the FAQ does not address the treatment of sick time that would have accrued during the initial 60-calendar-day period of employment, presumably, that time would be credited back to the employee as well.
Misuse/Abuse of Sick Leave
In Section IV, FAQ 1 now makes clear that employers can take disciplinary action, “up to and including termination,” if an employee misuses sick leave. FAQ 1 also reiterates that medical documentation can be required only after an employee has been absent for more than three consecutive days.
Reasons for Using Sick Leave
The revisions clarify that “preventive medical care” includes “checkups” and “patient counseling,” and that sick leave can be used for the employee’s own elective surgery (including organ donation), as well as care for a family member who has an elective surgery (including organ donation).
A new FAQ was states that employers “generally” cannot require employees to specify the nature of the health condition causing them to use sick leave, “except as required by law.”
Foreseeable and Unforeseeable Notice
A number of the FAQs in Section IV addressing employees’ notice and documentation obligations as well as employers’ rights and obligations in this regard were re-ordered, and a number of new examples have been added. For example, FAQ 21 states that an example of an unforeseeable need for sick leave would be if an employee wakes up with a fever and is unable to report to work.
An example in FAQ 22 describes a situation involving the notice requirement in an employer’s written sick leave policy. In this example, the policy required three days’ advance notice of the need to use sick leave in all cases. The FAQ makes clear that an employer cannot deny sick leave when the written sick leave policy does not meet the minimum requirements of the Law — in this case, the need was unforeseeable and the employee gave notice as soon as practicable, which is all that the Law requires of an employee.
Payment of Sick Leave
The following FAQ was added to address how sick leave is paid for employees who work jobs, assignments, projects, or shifts of varying or indeterminate lengths:
For work or shifts of an indeterminate length (e.g. shift until closing or a job that last until the required work is completed), employers should base the hours of sick time used and paid on the hours worked by a replacement employee for the same shift. If there is no replacement employee, the hours of sick time should be based on the hours worked by the employee or a similarly-situated employee in the same or similar shift in the past.
Use of Other Policies to Comply with the Law
In Section VI, addressing Other Time Off Policies, FAQ 1 clarifies by an example that an employer with a vacation policy that provides 40 hours of vacation time each year is not necessarily relieved from the requirement to provide sick leave to eligible employees. If the employer’s vacation policy does not allow employees to use vacation for unforeseeable circumstances, that policy does not satisfy the requirements of the Law.
Section VIII, FAQ 2 was revised to state that retaliation “is any act that is reasonably likely to deter an employee from exercising rights guaranteed under the law” and includes “any other act by an employer, whether or not directly related to the employee's employment that is reasonably likely to deter the employee from exercising rights guaranteed under the law,” such as “physically threaten[ing] an employee outside the workplace.”
Complaints and Enforcement
Section XI, FAQ 4 no longer states that the “DCA generally works with employers and employees to resolve the complaint through mediation, if possible.”
With respect to the adjudication process, the DCA revised a number of FAQs to reflect that if a complaint cannot be settled without a hearing, the DCA “may” (previously, “will”) issue a Notice of Hearing (previously, a “Notice of Violation”).
FAQ 6 in Section XI now states that DCA resolves non-compliance, not with “mediation,” but through “settlement where possible and, whenever necessary, enforcing the  Law at administrative hearings.”
Lastly, a “Rules” section, with FAQs addressing the Law’s interpretive rules, has been deleted from the FAQs. However, a number of internal references to these rules, with hyperlinks, were added throughout the FAQs as part of the update.
All employers with NYC operations should review their compliance with the New York City Earned Sick Time Act. Multi-state employers must do the same with the patchwork of state and local paid sick leave legislation.