Trying to follow the sick leave law requirements of federal, state and local law can make a person dizzy! When an employee calls out sick or requests a medical leave, employers need to determine, among other things, whether they can or must approve the time off, whether the time off is paid and what happens to employees’ benefits while they are out. Not only must an employer determine if any sick leave law applies, but much consider – when multiple leave laws are at issue – how those laws interact.
Pre-Covid-19, there were no federal paid sick leave requirements for private employers. And, while it’s too soon to say that Covid is behind us, the federal government’s mandate for paid Coronavirus leave did expire at the end of 2020. Even the government’s provision of a tax credit for employers that voluntarily provide paid Coronavirus leave is scheduled to expire on March 31, 2021.
That doesn’t mean that sick employees, due to Covid or otherwise, are left without protection. The Family and Medical Leave Act (“FMLA”) entitles eligible employees who work for covered employers to take up to twelve weeks of unpaid, job-protected leave for specified medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. More information is available here.
And even employees who are not eligible for FMLA may be entitled to time off as an accommodation if their medical condition qualifies as a disability under the Americans with Disabilities Act, which applies to businesses with 15 or more employees. More information is available here.
The types and nature of sick leave provided by state law vary widely by state. In New York State, employers with five or more employees or net income of more than $1 million are required to provide paid sick leave, and employers with fewer than five employees and a net income of $1 million or less are required to provide unpaid sick leave. Employees must accrue their sick leave at a rate of at least one hour for every 30 hours worked, up to a total of 40 hours/year for businesses with up to 99 employees, and up to 56 hours/year for businesses with 100 or more employees. New York Sick Leave can be used for a number of purposes, including the diagnosis, care, or treatment of a mental or physical illness, injury or health condition, or need for medical diagnosis or preventive care. More information is available here.
Some employers are also currently required to provide additional job protected paid sick leave to employees who need to take leave because they are under a mandatory or precautionary order of quarantine or isolation due to COVID-19. The amount of paid sick leave an employer is required to provide depends on the number of employees they have and the employer’s net annual income. More information is available here.
In addition to considering the state where an employee is located, sometimes it is also necessary to consider the city or county where the employee is located. For instance, New York City’s Earned Sick Time Act requires certain employers to provide paid or unpaid sick leave to New York City employees. While the City’s sick leave law was recently amended to mimic the state law in most instances, differences do remain. For examples, employers in New York City that require documentation from their employees after using three or more consecutive days of sick leave must reimburse the employee for all fees charged by a health care provider for such documentation. More information is available here.
While Westchester previously also had its own sick leave law, Westchester County employers are now governed by the State’s Sick Leave Law. However, the Westchester County Safe Time Leave Law has not been preempted by the New York State Sick Leave Law and covered employers remain obligated to comply with the provisions of the Safe Time Leave Law (relating to domestic violence or human trafficking).
What to Do
Businesses should review their policies and practices to ensure compliance with federal, state and local sick leave provisions. Businesses should also train their managers on how to properly handle any sick time requests and make sure their postings are up to date.
As more employees are working remotely and may be in states other than where the employer is located, these issues become even more complicated for businesses.