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NYC Issues Model Notice and Sick Leave Guidelines

March 25, 2014

The New York City Department of Consumer Affairs (“DCA”) has released information that will help guide employers before New York City’s Earned Sick Time Act (the “Act”) goes into effect April 1, 2014. In addition, the DCA published a model Notice of Rights Form (“Form”) for employers to provide to their employees. This newsletter will cover the Form and summarize key guidelines, in order to supplement our prior treatment of the Act (our June 2013 and March 2014 newsletters).

Notice of Rights Form

All employers must provide a notice of rights to existing employees by May 1, 2014 and all newly-hired, covered employees by either their first day of employment or May 1, 2014, whichever is later.

The Act requires the notice to include:

  1. rate of accrual and use of sick leave;
  2. the employer’s “calendar year;”
  3. the employee’s right to be free from retaliation; and
  4. the right to file a complaint.

The notice must be provided to employees both in English and in the employee’s primary language. The DCA has yet to publish the model notice in other languages.

Because the DCA’s notice is a “model” notice, it only states the minimum accrual and leave requirements under the Act. The employer’s designated rate of accrual and definition of the “calendar year” may be different from the model notice. Employers need to provide a notice that reflects such differences.

Employers Excluded From the Act

Specific employers excluded from the Act:

  1. Government agencies;
  2. Most New York State Department of Education licensed physical therapists, occupational therapists, speech language pathologies, and audiologists;
  3. Independent Contractors;
  4. Certain employees subject to a collective bargaining agreement;
  5. Federal work study programs;
  6. Employees whose work is compensated by qualified scholarship programs; and
  7. Participants in Work Experience Programs.

Note nonprofit employers are not excluded from the Act’s requirements. Also, as stated in a prior newsletter, the Act covers employers in the manufacturing sector.

Calendar Year

The Act requires employees to receive up to five sick days per “calendar year,” but “calendar year” was not defined in the Act. The guidelines define “calendar year” as any consecutive 12-month period of time as determined by the employer (e.g. January 1 to December 31, the tax year, the fiscal year, or the year running from an employee’s anniversary date of employment). This definition allows employers to be more flexible and align their sick leave policy’s “calendar year” with other policies.

While employers are free to define the “calendar year” in accordance with this definition, it is important to note employees begin to accrue sick time when the Act becomes effective on April 1.

Employers with Multiple Locations

The guidelines clarify the coverage for employers who maintain multiple locations, which aggregate to five or more employees. According to the guidelines, if the business owner or principal owns at least 30 percent of each location and the locations engage in the same business or operate under a franchise agreement, then the amount of employees at each location count towards the Act’s threshold. For example, if an employer owns at least 30 percent of four restaurants in New York City and each location employs three employees, then all 12 employees count towards the number of employees under the Act.

Employees Who Telecommute

Employees who telecommute are not covered by the Act for the hours they are not physically working in the City, even if the employer is located in the City. However, if the employee telecommutes for three days and reports to the office for the other two days, the two days he/she works in the office are covered under the Act. The hours are counted both in terms of eligibility (80 hours worked in a calendar year) and for accrual of paid sick time (at a rate of at least one hour per 30 hours worked).

Also, an employer cannot require an employee to work from home or telecommute rather than using his/her accrued sick time. However, if the employee voluntarily agrees to work from home or telecommute, the employee would retain the sick time he/she has accrued.

Documentation from a Licensed Health Care Provider

The guidelines make it clear that employers cannot require an employee to provide documentation from a licensed health care provider regarding his/her reason for using sick time, unless the employee was absent for more than three consecutive workdays. If an employee decides to use his/her accrued sick time the day before a three-day holiday weekend, the employer cannot demand a doctor’s note documenting the reason for his/her absence. An employer’s reasonable suspicion of an employee’s abuse of sick time for one or two days is not a valid reason to demand a doctor’s note.

However, if an employee is absent for one or two days, the employer may still request “written confirmation” from the employee that the sick time was used for one of the designated purposes under the Act.

Please contact us if you have any questions regarding the notice of rights or how to amend your leave policies to be in compliance with Act.

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