What are the provisions and statements concerning family and medical leave that should be included in employee handbooks under the New York law pursuant to the Family and Medical Leave Act (FMLA)? As codified under 29 U.S.C. § 2619, employers with at least 50 employees are required by the FMLA to include, in employee handbooks (if they have one in their workplaces), a statement or provision concerning family and medical leave. Additionally, as part of employer compliance with the provisions of the FMLA, 12 NYCRR 380-7.2 requires information concerning the New York Paid Family Leave Benefits Law to be posted and distributed to all employees by covered employers.
To move this discussion forward, this blog post looks into what New York law says about notifying employees about sick leave, working hours, paid time off, and vacation.
Complying with Sick Leave and PTO Requirements in Employee Handbooks
Pursuant to N.Y. Lab. Law § 195(5), employers in New York are required to notify employees, either in writing or by publicly posting, about their policies on paid time off (PTO), working hours, holidays, personal leave, vacation, and sick leave. Although the requirements of the law depend on the size of an employer, as codified under N.Y.C. Admin. Code § 20-913, there are even more requirements imposed by New York City’s Earned Safe and Sick Leave Law.
However, it is crucial to note that the New York City Earned Safe and Sick Time Act was recently amended following a bill signed into law by Bill de Blasio, the former Mayor of New York City, on September 28, 2020. Generally, the aim of this amendment, which took effect on September 30, 2020, was to ensure that this law aligned better with New York State’s new paid sick leave law (the “NYS Leave Law”). Accordingly, these amendments expanded enforcement mechanisms, imposed new notice and employer reporting requirements, expanded the scope of prohibited retaliation, and revised the amount of leave NYC employers are obligated to provide.
As provided for under the sick leave law, employers, particularly those operating in New York City, are obligated to provide many categories of employees with sick leave. Notably, most private employers in New York City, including small businesses and nonprofits, are covered by the sick leave law. Categories of New York City employees that should be provided with sick leave under the law include (1) full-time employees, (2) part-time employees, (3) employees who are family members but not owners, (4) employees on the transitional jobs program, and (5) employees who live outside of New York City.
When it comes to compensation (PTO (Paid Time Off), Vacation Time, & Sick Leave), an employee should be compensated if they have earned vacation time. However, the question of whether the employee should be compensated for the same depends on what the employee handbook’s policy says. This means that if the employee handbook says it should be paid, then it should. On the contrary, the employee should not be paid if the handbook says it should not be paid.
We also added that essentially, even if vested, if the employee handbook clearly states that employment benefits (such as PTO, accumulated sick leave, and/or vacation time) would not be paid upon termination, then it should not. Courts in NY are very magnanimous and will try everything within the legal provisions of the existing statute to extend the same courtesy to employees. Nonetheless, if the employee handbook says otherwise, then the employee does not get paid.
In Part VIII of this series and our blog post titled “New York Labor Law on Including Pregnancy & Lactation Accommodations in Employee Handbooks,” we will examine what New York law says when it comes to requiring employers to include a policy providing reasonable pregnancy and lactation accommodations to employees who may need such accommodations.
As usual, stay tuned for more legal guidance, training, and education. In the interim, if there are any questions or comments, please let us know at the Contact Us page!
Always Rising Above the Bar,
Isaac T.,
Legal Writer, Author, & Publisher.