It might not be business as usual, but business in New York goes on even as the state grapples with the coronavirus pandemic.
New York State’s annual budget bill, signed by Gov. Cuomo on April 3, contains amendments to New York’s voting leave law as well as a new, non-coronavirus-related sick leave law. The sick leave law changes will not functionally go into effect until next year. The voting leave amendments, which go into effect immediately, constitute a surprising about-face from the Legislature’s voting leave changes in 2019.
Changes to Voting Leave Law
As explained in our legal alert from last April, the Legislature amended the New York State Election Law in 2019 by granting registered voters up to three hours of paid time off from work to vote in public elections. This year’s bill, however, amends the Election Law– so as to return it largely to its pre-2019 form.
Specifically, the Election Law now grants registered voters who do not have “sufficient time outside of his or her scheduled working hours” to take two hours of paid time off to vote in public elections. In a critical change from last year’s amendment: employees will be considered to have “sufficient time” outside of their work hours to vote if they have “four consecutive hours” between the polls opening and the beginning of their working shift, or, four consecutive hours between the end of their shift and polls closing. Employees who do not have four consecutive hours in those windows will be allowed to take off as much “working time” from their shift as would allow them to vote, but, only two hours of that time will be paid. Employers may still designate that such time is taken at the beginning or end of an employee’s shift.
The 2020 amendment also creates a “window” of time for employees to provide notice that they will need time off to vote. Employees must notify their employers that they will need time off from work to vote at least two working days in advance, but not more than ten working days in advance. Employers are still required to post a notice of the voting leave law at least “ten working days” before every election.
Employers large and small should take this time to revisit their handbook policies on the voting leave law before the 2020 electoral campaign begins in earnest in New York.
Paid Sick Leave
By now, employers are no doubt aware of the changes to State and Federal law granting employees leave related to COVID-19. The budget bill, however, includes a new sick leave law, unrelated to the pandemic. The new sick leave law will require employers to provide job-protected, paid sick leave to their employees beginning on January 1, 2021.
Reasons for Leave
Employees will be able to use job-protected, paid sick leave for the following reasons:
- For their own or their family member’s mental or physical illness or health condition, regardless of whether it has been diagnosed or requires medical care;
- For their own or their family member’s diagnosis, care, or treatment of a mental or physical illness or health condition;
- For various reasons due to domestic violence, either related to the employee or to a family member.
“Family member” under the sick leave law will include an employee’s:
- Domestic partner
- Parent, including parents-in-law
Length of Leave
The amount of leave an employee may be eligible for depends on employer size:
- An employer with 4 or fewer employees in a calendar year will be required to provide up to 40 hours of unpaid sick leave each calendar year. However, if the employer earned a net income of greater than one million dollars in the previous tax year, the 40 hours of sick leave must be paid.
- An employer with between 5 and 99 employees in a calendar year will be required to provide up to 40 hours of paid sick leave in a calendar year.
- An employer with 100 or more employees in a calendar year will be required to provide up to 56 hours of paid sick leave in a calendar year.
The leave will be required to be paid at the employee’s regular rate of pay.
Accrual and Usage of Leave
Employers may set either an “accrual” system for leave, or, may “front-load” their employees’ paid sick-leave banks. If using an accrual system, employees must accrue sick leave at a rate of at least 1 hour of earned sick leave for every 30 hours worked. (Employers operating in New York City will note the familiarity with the NYC Earned Safe and Sick Time Act). If using a “front-loading” method, employers must provide their employees with the maximum amount of sick leave at the beginning of a calendar year. For this purpose, employers may determine their own “calendar year,” so long as it is a consecutive twelve-month period.
Employers may also set a minimum increment for using sick leave of not greater than four hours.
Employees will carry over their accrued, unused sick leave into the following calendar year. But while the “bank” of unused time may carry over, employers may limit the actual “usage” of sick leave to the maximum allowed per year (either 40 hours or 56 hours, depending on employer size). Employees departing from employment are not eligible for payout of accrued but unused paid sick leave.
Finally, the budget bill authorizes the State Department of Labor (DOL) to publish regulations and guidance further implementing the sick-leave law. Employers should expect to see more information about the new sick leave law on the DOL’s website in the upcoming months.
This alert does not purport to be a substitute for advice of counsel on specific matters.
Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.