What We Know
The Law
New York State, in the 2020 budget act, mandated annual sick leave on a permanent basis. There is no exemption for farm employers from the sick leave requirement and we expect most farms with hired employees to be affected. The amount and type of sick leave required varies by employer size and income, as follow:
- For employers with 4 or fewer employees and less than $1 Million in net income: 40 hours of unpaid sick leave per employee
- For employers with 4 or fewer employees and greater than $1 Million in net income: 40 hours of paid sick leave per employee
- For employers with between 5 and 99 employees: 40 hours of paid sick leave per employee
- For employers with greater than 100 employees: 56 hours of paid sick leave per employee
Note that this is a new requirement for all employers, if you already provide sick leave that meets or exceed these levels then your policy already meets the requirement. Employers are not required to provide the sick leave until January 1, 2021 but they are required to begin accruing hours of sick leave for employees on September 30, 2020.
Reasons to Use Sick Leave
The new law has detailed requirements about reasons for sick leave that your policy must also meet, including some that you might not expect. According to the law, employers must provide leave:
(i) for a mental or physical illness, injury, or health condition of such employee or such employee’s family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that such employee requests such leave;
(ii) for the diagnosis, care, or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventive care for, such employee or such employee’s family member; or
(iii) for an absence from work due to any of the following reasons when the employee or employee’s family member has been the victim of domestic violence (…), a family offense, sexual offense, stalking, or human trafficking: (a) to obtain services from a domestic violence shelter, rape crisis center, or other services program; (b) to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members; (c) to meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding; (d) to file a complaint or domestic incident report with law enforcement; (e) to meet with a district attorney’s office; (f) to enroll children in a new school; or (g) to take any other actions necessary to ensure the health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.
Accrual and Carryover
Employees can accrue sick time at a rate of no less than 1 hour of sick time per 30 hours worked, or the employer can choose to award all of the sick time upfront at the beginning of the calendar year. If the upfront approach is used the employer is not permitted to reduce or revoke the awarded sick time if the employee ends up working fewer hours during the year than expected. Unused sick time must carry over to the next year but employers with less than 100 employees can limit use of sick leave per calendar year to 40 hours, and employers with greater than 100 employees can limit it to 56 hours.
What We Still Don’t Know
In spite of repeated requests by employers, business organizations, accountants, attorneys and this author, the NYS Department of Labor has not yet provided details about many important questions relevant to farm employers.
- How will net income be calculated? What formula will NYS Department of Labor use?
- 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?
- 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?
- What about family members who work on the farm as defined in the Farm Laborer Fair Labor Practices Act, is sick leave required for them?
- What about youth workers, employees under age 18, are they included in the sick leave requirement?
- 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?
We will continue to press for answers to these and other relevant questions and will share this information through written releases and employer training when available.
Actions Items for Employers
- Track hours worked for all employees beginning September 30, 2020, if not already doing so. Employers can always go back and credit employees with sick time earned if the number of hours worked is known.
- Consider adopting modern software and tracking systems to create employee schedules, record hours worked, integrate with payroll, and keep track of sick leave and vacation accrual and usage for all employees.
- Review your current sick leave policy and update as needed.
- Train managers and employees about your sick leave policy and any changes that will occur.
- Stay tuned to the Ag Workforce Journal and other industry newsletters for more information about New York’s sick leave requirements.
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By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution.
The post New York Sick Leave Requirement: What We Know, Still Don’t Know, and Action Items appeared first in The Ag Workforce Journal
