Questions Answered About New York Sick Leave Requirements

New York State employment law changed in 2020 to require sick leave for most private sector employees, including farm employees. The state released guidance about the program yesterday through a website and detailed FAQ document. A September 29, 2020 post in the Ag Workforce Journal described the basics of the new requirements based on the language in the new law. At that time there were several questions pertinent to farm employers that remained unanswered. We now have answers, at least in part, to some of those questions.

Questions from Farm Employers

  • How will net income be calculated? What formula will NYS Department of Labor use? This question is important for farms with 1-4 employees only. “If net income is $1 million or less in the previous tax year, the employer is required to provide up to 40 hours of unpaid sick leave per calendar year. If net income is greater than $1 million in the previous tax year, the employer is required to provide up to 40 hours of paid sick leave per calendar year.” The state refers to tax year so they must be using the employer’s net income as indicated on the appropriate tax filing document (Schedule F, Schedule C, etc.) although they do not say this explicitly.
  • What about seasonal farm employees, are they included in the sick leave requirement? How many hours or days must they work each year to be included in the employer’s number of employees? Yes, all seasonal farm employees, including H-2A, are included in the new sick leave requirement. The FAQ is less clear about the second question but there is no mention in the law or state documents about a minimum number of hours required to be included in the employer’s number of employees. Also, New York State Department of Labor (NYSDOL) staff indicated verbally to me that there is no minimum, so all employees, even if they only worked one day, must be included in the employer’s annual number of employees.
  • Can employers provide a pro-rated amount of sick days upfront to seasonal employees, such as 20 hours for employees who work 5-6 months, or must the hourly accrual of 30:1 be used? Yes, employers can provide the amount of leave upfront that they expect employees to earn based on a 30:1 accrual rate. For example, if a seasonal harvest crew employee is expected to work 2 months or about 540 hours, then the employer could provide 18 hours of sick leave upfront (540/30=18). Note, if the employee works fewer hours than expected in the season then the employer cannot take back the sick leave hours already granted up front. Also, the employer needs to keep track of the hours because if the employee works more than the expected 540 hours in the season then the employer must provide additional sick leave time at the 30:1 rate. For example, if the employee actually worked 600 hours then he/she would be entitled to an additional two hours of sick leave (600/30=20).
  • What about family members who work on the farm as defined in the Farm Laborer Fair Labor Practices Act (FLFLPA), is sick leave required for them? This issue is not discussed specifically in the sick leave documentation because it addresses all types of employers in the state, the new “family member” status that appeared under New York’s FLFLPA law is unique to agriculture. That said, as FLFLPA stands today, people working in farms who fit the technical definition of “family members” are not employees according to the state of New York. Therefore, it is my understanding that the new sick leave requirement, does not apply to farm “family members” who fit the FLFLPA definition. See the Cornell Ag Workforce website, and NYSDOL’s FLFLPA FAQ for more about farm “family members,” and plan to attend the upcoming New York Labor Roadshow IV.
  • What about youth workers, employees under age 18, are they included in the sick leave requirement? Yes, all employees are included regardless of age.
  • What about different business entities with varying levels of share ownership? Which of those entities will be combined in order to calculate the number of employees? The state is quite clear in their documentation that a single employer with multiple places of business must add up all of their employees from the various sites to determine how many employees they have for purposes of determining how much sick leave they are required to provide. For example, if Green Farms operates at different sites: a dairy with 25 employees, a crop operation with 10 employees, a feedlot with 5 employees, and a vegetable operation with 15 year round and 50 seasonal employees, then they have a total of (25+10+5+15+50) 105 employees and they must provide 56 hours of paid sick leave per calendar year for all of their employees who will accrue at least that much using the 30:1 rule. The documentation does not address the issue of different employers with shared ownership. It is likely that NYSDOL will view significant amounts of shared ownership in separate business entities as one employer for purposes of this law. For example, a dairy with a landholding LLC and an operating LLC but the same or mostly the same ownership of both entities will likely be viewed as one employer. Employers should address complex questions of this nature to qualified accountants, attorneys, and other professionals.

We will explore the new sick leave requirements for New York employers in great depth during Labor Road Show IV, register here for the upcoming event.

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By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution.
The post Questions Answered About New York Sick Leave Requirements appeared first in The Ag Workforce Journal 

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