We had 5 staff members for all of 2020 but one of them retired as of 12/31/2020 - i.e., last calendar year and has not worked in 2021 (But she will receive a W-2 for 2021,because her final wage-payment was made on January 15th, 2021) So we have 4 staff as of Jan 1st, 2021.
1. Are we OK to offer Unpaid sick leave at this time, regardless of Staff #5's W-2?
2. What if there is a 5th staff-member hired later in 2021? Would we then pay our 4 existing staff for any sick-time off they take that they may have accrued earlier (as Unpaid) from that point forward and are we obliged to retrospectively pay those staff for sick-leave they took earlier in 2021 as unpaid?
3. If we go with the assumption that we have 4 staff for the foreseeable future, is it a problem that we are now paying 2 staff-members for sick leave and not the other 2? (A current benefit of our salaried staff member and one 'grandfathered' hourly worker is that they receive paid sick leave and PTO)
4. How does an Employer determine if a staff member should take sick leave under NY State Sick Leave Law 196-b or under the Paid Family Leave insurance? i.e., who pays - the Library or the PFL Insurance?
5. Does the law say that unused sick leave may be carried over to the following years indefinitely? (Our current policy specifies it can only be carried forward for One year only.)
1. The measurement of whether you must offer paid or unpaid is a look back on the previous tax year. Given the scenario described above you would need to offer paid leave for 2021 and then if you had 4 in 2021, in 2022 you could offer unpaid leave provided your net income also meets the requirement.
2. Because it is a look back to the following tax year, hiring a 5th person in 2021 will affect 2022’s requirement. See answer above.
3. All employees must receive 1 hour of NYPSL for every 30 hours worked. In the case that you have 4 employees the tax year prior – the employees might still accrue the ‘leave’ benefit, but it would be unpaid.
4. An employer is responsible for recognizing an eligible leave under this law, the employee may request it or tell the employer they are going to be out for a reason that may make them eligible. The employer pays for this. The employee should also be given any leave materials that they would qualify for. For example, if they are going to exhaust all of their NY PSL then they may (if their reason makes them eligible) apply for NY Paid Family Leave.
5. The legislation does not address a cap or cut-off on carryover of time. Many are interpreting this to mean an indefinite carryover. Even if they were to carryover indefinitely – employee are held to only being able to use time to the cap – which in the scenario posed in your questions is 40 hours.
I’ve included links to two fact sheets from NY – NY Paid Sick and Safety Leave and NY PFL.
**Additionally, please note that the COVID-19 specific paid leaves and Covid-19 PFL are also still available to employees. If their reasons for absence are related to Covid-19, consider these as well.**