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The federal Fair Labor Standards Act does not require payment for time not worked, nor does it regulate vacation pay, holiday pay, or other paid time off. These types of benefits are generally a matter of agreement between an employer and an employee (or the employee’s representative). Employers, however, do need to comply with applicable state laws.
Employers that extend to employees funeral or bereavement leave for the death of an employee's spouse or the child, parent or other relative of the spouse must provide the same leave to an employee for the death of the employee's same-sex committed partner or the child, parent or other relative of the committed partner. For the purposes of this provision, same-sex committed partners are those who are financially and emotionally interdependent in a manner commonly presumed of spouses.
The state blood donation leave provisions apply to employers with 20 or more employees at one or more worksites. Employees must work an average of at least 20 hours per week to be eligible.
Under New York law, employers must allow employees time off to donate blood, but they have a choice in how to provide for this time off. They can allow employees to go off site to donate or they can use donation leave alternatives. Off-site donation is a donation that is not made in connection with a blood drive at the employee's workplace or in connection with some other convenient time and place set by the employer. Donation leave alternatives include either a blood drive at the employee’s worksite or a donation option at some other convenient time and place set by the employer.
The time to donate must include time necessary for not only the actual donation, but also time to recover, including eating/drinking afterward and returning to work.
Since the blood donation leave does not involve a serious health condition, it should not have any affect on the FMLA.
Employers must grant employees up to three hours of leave from the regular work schedule in any 12-month period. The employee may be allowed to take more than three hours, but that is up to the employer.
Leave granted to employees for off-premises blood donation is not required to be paid.
Off-premises leave is not required to accrue from year to year. If an employee does not use his or her donation leave within the 12-month period, the allotment does not roll over or accrue into the next 12-month period.
Employers may require employees to show proof of their blood donation in the form of a notice or a good-faith effort from the blood bank or other sufficient proof.
Alternatives for blood donation leave must be provided twice per calendar year.
Leave taken under donation leave alternatives are to be paid without requiring the employee to use vacation, personal, sick, or other time off accruals.
Time spent to donate under leave alternatives must be scheduled during normal work hours. Employees cannot be required to travel an unreasonable distance to donate.
If you are going to provide a donation leave alternative, you must post a notice of the related event at least two weeks in advance.
Employers must notify employees in writing of their rights to take blood donation leave, and this can be done by such means as posting a notice, including the notice in paycheck stuffers, including notices in employee handbooks, or another comparable method.
Employers can require employees to provide advance notice of their plan to take donation leave. For off-premises leave, the employee is to provide at least three working days' notice. For alternative leave, the employee is to provide at least two days' notice.
There are situations, such as when an employee is in an position essential to the operation of the company, in which the employer can extend the notice time frame to up to 10 working days. If so, this information must be in the general written notice.
In addition, there may be emergency situations involving an employee or an employee's family member which requires an employee to donate. In this case, employers must allow for a shorter notice period.
Employers with 20 or more employees must grant up to 24 hours of leave to employees who seek to undergo a medical procedure to donate bone marrow. The employer may require verification by a physician for the purpose and length of each leave requested by the employee.
Employees are eligible if they work for an employer for an average of 20 or more hours per week. This does not, however, include independent contractors.
Leave taken under this law does not affect an employee's rights with respect to any other employee benefit otherwise provided by law.
Unlike the federal FMLA, New York’s child-care leave covers all public- and private-sector employers.
All employees in New York are eligible for leave of absence benefits. Unlike the FMLA, an employee does not need to work a specified number of months or hours to be eligible for leave under the state's provisions.
New York does not specify the amount of leave that is permitted under state law. However, any leave that is made available to biological parents must also be made available to adoptive parents.
If an employer or governmental agency permits an employee to take a leave of absence for the birth of their child, an adoptive parent is entitled to the same leave for preschool-age children and disabled children.
There is no state provision which requires an employer to maintain coverage under any group health plan while the employee is on leave. However, the FMLA requires that covered employers continue to provide group health insurance.
Unlike the FMLA, New York does not provide job restoration rights to employees.
Unlike the FMLA, New York does not mandate any notice requirements.
If you have employees who serve as volunteer firefighters or are enrolled members of a volunteer ambulance service, you must allow such employees leave to perform duties related to a declared emergency unless you determine that the absence would impose an undue hardship.
Before taking such leave, the employee must have provided written documentation from the head of the employee’s fire department or volunteer ambulance service notifying the employer of the employee’s status as such a volunteer.
Upon your request, an employee who has been granted such leave must provide a notarized statement from the head of the fire department or ambulance service, certifying the period of time, or times, that the employee responded to any emergency.
The period of absence must either be unpaid excused leave for employees subject to overtime provisions, or may otherwise be charged against any other leave to which the employee is entitled.
New York law allows an employer to withhold wages of an employee serving as a juror during the period of the service; provided that an employer who employs more than ten employees must not withhold the first $40 of the juror’s daily wages during the first three days of jury service.
Officers and employees of the State, a public authority, or a municipality of less than one million people who participated in the World Trade Center rescue, recovery, or cleanup activities and subsequently developed a qualifying condition are entitled to receive unlimited paid line of duty sick leave.
Employers with 20 or more employees are to provide employees up to 10 days’ unpaid time off when the employees’ spouses are on leave from the U.S. Armed Forces. The spouses are to have been deployed during a period of military conflict, to a combat theater, or combat zone of operations. This could include the regular Armed Forces as well as the National Guard or Reserves.
Employees are eligible if they worked for you for an average of 20 or more hours per week. Independent contractors are not considered “employees.”
All employers in New York are to provide some form of sick leave to employees. Employees begin accruing the leave on September 30, 2020 or upon hire (whichever is later), and may begin taking the leave January 1, 2021. How much and whether the leave is paid will depend upon factors such as how many employees they have.
The sick leave provision does not include any employee eligibility criteria. Therefore, all employees ae eligible to take the leave.
Employers with four or fewer employees in any calendar year (January 1 – December 31) that have a net income of $1 million or less in the previous tax year must provide up to 40 hours of unpaid sick leave per year.
Employers with four or fewer employees that have a net income of more than $1 million in the previous tax year, and employers with 5-99 employees must provide 40 hours of paid sick leave each year.
Employers with 100 or more employees must provide 56 hours of paid sick leave each year.
Employees accrue one hour of leave for every 30 hours worked beginning upon hire or when September 30, 2020, whichever is later. Employees may take the leave during a 12-month period as determined by the employer.
Employers may choose to front-load the leave at the beginning of the year. An employee’s unused sick leave carries over to the following calendar year, but employers may limit the use of sick leave to the limit required (40 hours or 56 hours).
Employers may set a reasonable minimum increment for the use of sick leave which does not exceed four hours.
Employers need not pay out any unused sick leave upon termination, resignation, retirement, or other separation from employment.
Employees may take the sick leave for the following reasons:
Family members include children, spouses, domestic partners, parents, siblings, grandchildren or grandparents; and children or parents of an employee's spouse or domestic partner.
A parent includes a biological, foster, step- or adoptive parent, or legal guardian of an employee, or a person who stood in loco parentis when the employee was a minor child.
A child includes a biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.
The law does not specifically address the maintenance of group health care coverage.
Upon return to work, the employee must be restored to the position held before sick leave was taken with the same pay and other terms and conditions of employment.
Employees may request leave verbally or in writing. Upon such request, employers must, within three business days, provide a summary of the amount of sick leave accrued and used in the current calendar year and/or any previous calendar year.
Employees in New York are entitled to paid leave for certain qualifying reasons. The law covers all employers with at least one employee on each of 30 days in any calendar year. Leave under this law may run concurrent with leave taken under the FMLA.
Full-time employees: Employees who work a regular schedule of 20 or more hours per week are eligible after 26 consecutive weeks of employment.
Part-time employees: Employees who work a regular schedule of less than 20 hours per week are eligible after working 175 days, which do not need to be consecutive. Employees with irregular schedules should look at their average schedule to determine if they work, on average, fewer than 20 hours per week.
The amount of leave to which an employee is entitled as well as the amount of pay received during the leave phased in over time. As of January 1, 2018, employees were entitled to up to 8 weeks of leave in a 52-week period at 50 percent of their pay; in 2019 employees were entitled to up to 10 weeks of leave at 55 percent of their pay; in 2020 employees were entitled to up to 10 weeks of leave at 60 percent of their pay, and in 2021 and beyond employees are entitled to up to 12 weeks of leave at 67 percent of their pay.
For part-time employees, the maximum period of PFL may be reduced by the average number of days worked per week as a percentage of the total benefit available for full-time employees. For example, if an employee works three days per week, he will receive the following:
The pay is funded by employees through payroll deductions.
Leave may be taken on an intermittent basis in increments of one full day or one fifth of the weekly benefit. Leave may also be taken in full weeks.
Eligible employees may take paid family leave for the following reasons:
For purposes of family leave, a “family member” is defined as a child, parent, grandparent, grandchild, spouse or domestic partner. As of January 1, 2023, “family member” includes siblings.
FMLA and PFL may run concurrently, assuming the employer is covered by both laws, employees are eligible for both, and the reason for leave qualifies for both.
Employees generally get to choose when to apply for PFL. PFL does not replace disability benefits coverage.
After giving birth, an employee may be eligible for both short-term disability benefits and PFL. While the two benefits cannot be taken at the same time, eligible employees can choose how they use both benefits.
A new parent, for example, who qualifies for short-term disability after giving birth can choose to:
Employers must maintain group health plan benefits while an employee is on paid family leave in the same manner as before leave began. Any benefits an employee had before leave began would be available to the employee after leave. Employees may choose to use accrued but unused personal time off for part or all of the family leave time, and receive full salary. Employees are not entitled to family leave benefits and full disability benefits at the same time. Employees are entitled to up to 26 weeks of combined disability and family leave benefits during a 52-week period.
Employees are to be reinstated to the position held when leave commenced, or to a comparable position with comparable employment benefits, pay, and other terms and conditions of employment.
If the need for family leave is foreseeable the employee must provide at least 30 days’ notice before the leave is to begin. If the need for leave is within less than 30 days, the employee must provide notice as is practicable. Employees may be required to provide a certification supporting the need for paid family leave.
New York law does not require vacation pay. However, if an employer chooses to provide paid time off benefits, it must follow the terms and conditions established in its policy.
New York law provides that employers are prohibited from penalizing an employee who is a victim of an offense or a witness, for taking time to appear as a witness, consult with a district attorney, or obtain a restraining order.
Employees must provide notice to their employer of their intent to appear as a witness. Employers may require verification. Such time off need not be compensated.
Beginning November 18, 2019, the NY State Human Rights Law is expanded to include victims of domestic violence. The law applies to NY employers with four or more employees until February 8, 2020, when it will apply to all employers. The law indicates that employers are to provide a reasonable accommodation to employees who are known by the employer to be a victim of domestic violence, including when employees must be absent from work for a reasonable time, unless the absence would cause an undue hardship to the employer.
No real eligibility criteria, the employee or family member simply needs to be a victim. Effective February 8, 2020, this does not include anyone employed by his or her parents, spouse or child, or in domestic service.
The law does not include a set amount of leave, it just must be “reasonable,” and that term is not defined. Generally, unless a period of leave would pose a hardship, it must be provided.
Employees who take leave are entitled to the continuation of any health insurance coverage provided by the employer, to which the employee is otherwise entitled during any such absence.
Taking a negative employment action, such as not returning the employee to his or her position, could be seen as discriminating against the employee based on the protected class of being a victim of domestic violence.
Employees are to give reasonable advance notice of the absence, unless not feasible. Employees who take such leave who cannot feasibly give advance notice must, within a reasonable time after the absence, provide a certification to the you if you requested one.
A certification would be in the form of the following:
You may require an employee to charge any such time off against any leave with pay ordinarily granted, where available, unless otherwise provided for in a collective bargaining agreement or existing employee handbook or policy, and any such absence that cannot be charged may be treated as leave without pay.
New York law allows employees up to three hours off to vote at any election without loss of pay. The employer determines when the employee can take the time off for voting, usually at the beginning or end of the work shift. If an employee requires working time off to vote, he or she must notify the employer not less than two working days before the election. Employers are to post notices regarding these provisions at least 10 working days before every election.
Contact
New York State Department of Labor
Regulations
Section 195.5 of the Labor Law
Wages and Hours: Frequently Asked Questions
§3-110 of the election law (time off to vote)
New York Executive Law, Article 15, Section 296, “Unlawful discriminatory practices” (domestic violence)
Contacts
None.
Regulations
None.