If Pain, Yes Gain—Part 79: Will the PSL Bug Infect New York State in 2020?

Seyfarth Synopsis: During his 2020 State of the State remarks, Governor Andrew Cuomo announced a statewide paid sick leave (“PSL”) proposal as part of his agenda in support of New York employees. If successful, New York would become the 14th state to enact a mandatory paid sick leave or paid personal leave law.

Wasting no time following an active 2019, the PSL bug appears to be headed to the New York capitol once more, although this time with its sights not just set on Albany County. Earlier this week, during New York’s State of the State Address, Governor Cuomo announced his plan to “pass a comprehensive [PSL] law to grant 5 days of [PSL] for employees of small corporations and 7 days for employees of large corporations.”

Per the accompanying 2020 State of the State booklet, the “Proposal” to “Guarantee Paid Sick Leave For Working New Yorkers” reflects on the Empire State’s legislative milestones in the employment arena, including a $15.00 minimum wage mandate and the New York Paid Family Leave (“NYPFL”) law, but ultimately suggests that these two apples each day are insufficient to keep the PSL bug away.

Whether PSL legislation ultimately will be proposed or passed, and its content if so, remains to be seen. However, here is an initial blue print from Governor Cuomo for New York State’s potential PSL mandate.[1]

• Businesses with five to 99 employees will provide their employees at least five days of job-protected paid sick leave per year.
• Businesses with 100 employees or more will provide their employees at least seven days of paid sick leave per year.
• Smaller businesses with four or fewer employees will guarantee five days of job-protected unpaid sick leave to their employees every year.
• Businesses already providing paid sick leave will be able to continue their current practices, presumably provided that the paid sick leave provided is at least equal to the mandate.

Notably, it is unclear if any forthcoming PSL proposal would preempt city and county laws currently on the books.

While the statewide PSL initiative is the latest item for employers to monitor when assessing their potential future paid time off compliance obligations, it is by no means the only such item. New York City is currently considering a bill that would amend its existing Earned Safe and Sick Time Act (“ESSTA”) to require mandatory personal time in addition to the safe/sick time currently provided. If the New York City bill is passed in its current form, ESSTA would become the Earned Safe, Sick and Personal Time Law, and would provide up to 40 hours of safe/sick time and up to 80 hours of personal time to eligible employees each year. Moreover, in October 2019, the Westchester County, NY Safe Time Leave Law (“STLL”) took effect, and made Westchester County the first jurisdiction in the country to have a paid safe time mandate operating separate and apart from its PSL mandate, the Earned Sick Leave Law (the “ESLL”).[2]

In the midst of these budding developments, at least some New York employers have been able to cross potential local PSL mandates off of their watch lists. In particular, a PSL bill that was introduced before the Albany County legislature was voted down on June 10, 2019. Since then, there has not been a renewed push for Albany County PSL, and given Albany County Executive Daniel McCoy’s endorsement of the New York State initiative, it appears any second bite at the local PSL apple will not take place in Albany County for the time being.

Overall, and consistent with its coast-to-coast outlook, 2020 is shaping up to be an active year for PSL and paid time off mandates, both in the greater New York City area and now statewide. We will continue to monitor paid sick, safe, and/or personal time developments at the state and local level in New York, and update employers on the status of these proposals and any others that may arise.

As the paid leave landscape continues to expand, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with specific PSL and paid time off laws and on PSL requirements generally. To stay up-to-date on paid leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list.

 

[1] There are currently 13 states with mandatory paid sick and/or personal time laws either in effect or scheduled to go in effect in the coming months: (1) Arizona; (2) California; (3) Connecticut; (4) Maine (PTO law); (5) Maryland; (6) Massachusetts; (7) Michigan; (8) Nevada (PTO Law); (9) New Jersey; (10) Oregon; (11) Rhode Island; (12) Vermont; and (13) Washington.

[2] The Westchester County ESLL took effect in April 2019. As a reminder, existing employees must be given a notice of their STLL rights and a copy of the law by January 28, 2020, and employees hired thereafter must receive these materials upon commencement of employment.