Today, in the next to last State Register of the year, the NYS Department of Labor (NYSDOL) provided important information on two laws that have been in effect for some time. New York State’s Paid Sick Leave Law (not COVID paid sick leave); and the HERO Act Workplace Safety Committees.
Paid Sick Leave
As you know, NYS Labor Law §196-b – effective September 30, 2020 - requires employers to provide paid sick leave (up to 40 or 56 hours per year based on the size of the employer) to employees for a variety of reasons. Today, in the state register, the NYSDOL adopted a final rule related to this mandate. While no changes were made to the final rule as compared to the last published rule, the NYSDOL finally answers some questions you may have regarding implementing the law. Highlights include:
Clarification on year-end carryover of unused paid sick leave – In the past, some employers paid out to employees any unused paid sick leave at year-end. It appeared that §196-b prohibited this practice and all unused leave was to be carried over to the next year. The NYSDOL now says otherwise. Employers apparently now have an option to pay out accrued but unused paid sick leave at year-end. This should be reflected in your written paid sick leave policy. See below:
Comment 3: Commenters suggested the ability pay out accrued sick leave time rather than carrying over hours. Response 3: While the statute requires that employers carry over unused sick leave to the next calendar year, employers may do one of the following: (1) give employees the option to voluntarily elect to use and 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.
Collective bargaining agreements – From the beginning, there has been conflicting interpretations and enforcement actions from the NYSDOL and the NYS Attorney General’s Office regarding to what degree collective bargaining agreements (CBA’s) entered into prior to September 30, 2020 would need to be amended to reflect the requirements of §196-b. Strangely, the NYSDOL avoids this issue. You should consult with your labor counsel should this issue arise. Again, from the State Register:
Comment 11: Commenters suggested that additional language governing CBAs be added to the rule, and several commenters posed interpretation questions related to CBAs. Response 11: These comments are outside of the scope of this rulemaking, which does not directly address CBAs. Employee count – The final rule confirms that employers should count all of their employees nationwide, but the benefit applies only to employees in New York State.
Documentation – The published final rule confirms that employers would be restricted in requiring documentation in most cases for absences of less than three days. It further describes how an employee could submit an attestation that the absence was for one of the protected reasons defined in the law. In fact, the Department intends to publish an employee attestation template.
HERO Act Workplace Safety Committees
As you recall, in addition to requiring all employers to develop and adopt a written airborne infectious disease prevention plan, the HERO Act requires all employers of 10 or more to permit the establishment of workplace safety committees. Today’s State Register included proposed regulations on how those committees will be established and structured, and employer’s obligations under the act. A public hearing on the proposed regulations will be held February 9, 2022 at 11:00 am. Highlights include:
Definition of “Worksite” – It appears employers with multiple work locations that are not ‘in reasonable geographical proximity’ may be required to have multiple workplace safety committees.
Establishment of committees – employers must respond with ‘reasonable promptness’ to written requests by two or more non-supervisory employees to establish a committee.
Committee size – committees shall have a maximum of 12 members or one-third of the total number of employees at each worksite – whichever is fewer. Worksites with less than 10 employees shall have 3 committee members.
Meeting frequency – meetings shall be conducted at least one per quarter for not longer than two hours. This is considered work time and should be paid hours. Meetings shall be scheduled at times that do not unreasonably conflict with the employer’s business operations.
The Business Council will continue to work with NYSDOL to make these regulations more functional for employers and will be participating in the Public Hearing. Please send to me your comments/ suggestions in advance of that meeting.