Frankly Speaking – August 25, 2020

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Hello!

I’ve missed every one of you, my millions thousands hundreds dozens handful of loyal readers. It’s been quite a while since I published anything remotely resembling a blog–April 17, to be exact. There were several reasons I decided to take a break. COVID-19 monopolized every waking moment of every day; hastily written laws, regulations, and agency guidance continued to change at a blinding pace; and Becky and I were each working 15-hour days, seven days a week.

Well, as of today, I’m back! After a few “frank” [please tell me you didn’t just do that] conversations with people I trust, I realized two things: 1) I have the ability to present otherwise indecipherable, boring, but vitally important information in an understandable and often funny way; and 2) writing allows me to keep our clients informed, is a great marketing tool, and is a much-needed outlet for my everyday stress. [Hey, your favorite alter ego here, I’m the funny one, not you!] I also realized that the “Fridays” part of Fridays with Frank was adding to my stress. So, rather than recommitting to the pressure of a weekly blog, I’ve decided to launch Frankly Speaking, which will be published regularly but not on a set schedule.

The Important Stuff

Since we’ve all been preoccupied with COVID-19 for the last six months, several things have not received the attention they deserve and require. But, for now, I’ll focus on two very pressing issues. First, our friends in the New York State (“NYS”) Legislature passed, and Governor Cuomo signed into law, mandatory Paid Sick Leave (“NYSPSL”). If you think this is old news, you may be confusing NYSPSL with COVID-related NYS Emergency Paid Sick Leave (“NYSEPSL”), which is entirely different. [Right, I knew that, not confusing at all.]

NY State Paid Sick Leave Basics

First, it’s important to know three facts: 1) NYSPSL applies to all private employers in NYS regardless of size or number of employees; 2) the effective date for employees to begin accruing leave is September 30, 2020, with accrued leave available for use starting January 1, 2021; and 3) as of today, the State has issued no guidance or regulations. [Shocking!]

Section 196-b of the NYS Labor Law requires employers to provide sick leave based on the following criteria:

  • Employers with four (4) or fewer employees, and net income of $1 million or less in the previous tax year, must provide employees with up to 40 hours of sick leave each calendar year, which may be unpaid;
  • Employers with four (4) or fewer employees, and net income greater than $1 million in the previous tax year, must provide employees with up to 40 hours of paid sick leave each calendar year;
  • Employers with five (5) to 99 employees, regardless of income, must provide employees with up to 40 hours of paid sick leave each calendar year; and
  • Employers with 100 or more employees must provide employees with up to 56 hours of paid sick leave each calendar year.

Employees must be allowed to take NYSPSL for any of the following reasons:

  1. A mental or physical illness, injury, or health condition of the employee or the employee’s family member, regardless of whether the illness, injury, or health condition has been diagnosed or requires medical care at the time that the employee requests leave;
  2. 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 – the employee or the employee’s family member; or
  3. An absence from work when the employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking.

Employers have two options regarding the accrual of mandated sick leave. First, beginning September 30, 2020, employees accrue sick leave at a rate of not less than one hour for every 30 hours worked. Under the second option, the employer may “front load” the entire mandated amount of sick leave on January 1.

Employees may begin using sick leave on January 1, 2020, by making a verbal or written request to their employer. Employers are prohibited from requiring employees to disclose confidential information (i.e., medical information, etc.) as a condition of taking NYSPSL, and employees may not be required to take sick leave in increments of more than four (4) hours.

Unused NYSPSL must be carried forward to the following calendar year. However, employers with 99 or fewer employees may limit the use of NYSPSL to 40 hours per calendar year. Employers with 100 or more employees may set the limit at 56 hours per calendar year.

Two bright spots for employers, the law doesn’t require the payout of accrued but unused NYSPSL at separation, regardless of whether the individual’s employment was voluntarily or involuntarily terminated. Employers with existing sick-leave and paid-time-off (“PTO”) policies that meet or exceed the NYSPSL law requirements are not required to provide additional sick leave.

Lastly, firing, threatening, penalizing, or otherwise discriminating or retaliating against an employee requesting or taking NYSPSL is prohibited. Further, employees must return to the same position, with the same pay and other terms and conditions of employment they had before taking NYSPSL.

After that brief overview of the law [are you serious, that was a brief overview?], it should be clear that NYSPSL is a significant change for most employers. Sick leave policies will need to be updated or new policies drafted. Employers also need to determine how accruals and leave time will be tracked and administered, educate employees on their right to sick leave, and a lot more!

I’m planning webinars and additional articles soon, so stay tuned. However, if you have specific questions or concerns about how NYSPSL will impact your company, send me an email at frank@hrcexperts.com. We’ll schedule a time to discuss your situation and help you implement and comply with NYSPSL.   

NYS Mandated Workplace Harassment Prevention Training

Any guesses on the second pressing issue? [ Hey genius, you gave it away in the heading.] Contrary to some misguided rumors, and regardless of the ongoing pandemic, mandatory annual workplace harassment prevention training must be provided to all employees by December 31. Among the changes for 2020, the definition of sexual harassment has been expanded, resulting in more types of behavior qualifying as sexual harassment. Further, your training should address all forms of discriminatory harassment covered by NYS human rights law. [How are employers supposed to keep up with all this during a freaking pandemic?!]  

Don’t worry, we’ve got your back! We’re offering:

  • Live webinars
  • On-demand webinars
  • Live and on-demand management webinars

Clients have the option of customized, company- and industry-specific content that meets all NYS training requirements, is conveniently scheduled, and available only to their employees. As an alternative, we also offer universal workplace harassment prevention training, using broad-based scenarios, which also meets all NYS requirements.

Equally important, our management-specific workplace harassment prevention training expands on the all-employee training to ensure all levels of management–including supervisors–are aware of their individual responsibilities to model appropriate workplace behaviors, recognize and properly address harassment, and understand their potential exposure to personal liability.

If you’d like more information, or want to schedule workplace harassment prevention training for your employees, send me an email, frank@hrcexperts.com, or call 585-416-0751.

If you enjoyed Frankly Speaking, let me know! Also, feel free to share it with friends and colleagues.

Stay well…


Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2020 HR Compliance Experts LLC

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

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