Articles Posted in Paid Sick Leave

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This summer, New York State finalized the regulations for New York’s new Paid Family Leave Benefits Law (PFL), which goes into effect on January 1, 2018. The PFL will expand New York’s existing Disability Benefits Law to provide paid leave for nearly all private employees in New York State to cover time spent caring for a new child, caring for a family member with a serious health condition, or assisting loved ones while a family member is deployed abroad on active military duty, with the guarantee that an employee who takes leave will be able to return to their job and continue their health insurance.

While polls indicate that Americans largely support paid family leave policies, no federal statute entitles employees to paid family leave, and only five states other than New York—California, New Jersey, Rhode Island, Washington, and Washington, D.C.—have state-level paid family leave laws. According to last year’s National Compensation Survey, an annual survey conducted by the U.S. Bureau of Labor Statistics, only 14% of civilian workers in the U.S. had access to any paid family leave whatsoever. And of those, higher-wage white-collar workers are much more likely to have access to paid family leave; 37% of those employed in the finance and insurance sectors have paid family leave benefits, in comparison to 5% and 6% of workers in the construction and hospitality industries, respectively.

The federal Family and Medical Leave Act (FMLA), which allows employees to take up to 12 weeks of leave to care for a new child or for a family member with a serious health condition, provides access to family leave for many U.S. workers. But FMLA leave is unpaid, is not available for employees of smaller businesses, and is only available to employees who meet certain requirements. A significant percentage of U.S. employees therefore aren’t covered by the FMLA, and even those who are covered often aren’t able to afford the hit to their income an extended period of unpaid leave would cause.

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Currently, there is no U.S. federal statute requiring employers to provide their employees paid family or medical leave. This year, with less than two weeks until the 2016 election, both candidates have set forth plans for paid family leave for the first time in a U.S. presidential election. Paid family leave is an issue which affects millions of voters, but has received comparatively little attention in the media and, until now, hasn’t been supported by a Republican presidential candidate.

The Family and Medical Leave Act of 1993 (FMLA) is a federal statute which entitles eligible employees to take 12 weeks of unpaid, job-protected leave within a 12-month period due to the employee’s own serious health condition, to care for a family member with a serious health condition, or to care for a new child. According to the Department of Labor, the FMLA is “designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons.”

However, the FMLA comes with conditions. In order to be eligible for FMLA leave, an employee must work for a private-sector employer with 50 or more employees, a public agency, or a public or private elementary or secondary school, meaning that many employees of small businesses aren’t covered by the FMLA. In addition, even employees of covered employers are only eligible for FMLA leave if they have worked for the employer for at least 12 months—including at least 1,250 hours during the 12-month period immediately before the leave. Complicating the situation yet further, many employees, especially low-wage workers, can’t always afford to take unpaid leave. And even those employees who do take FMLA leave often report difficulties making ends meet during their time away from work.

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On June 23, 2014, Justice Hunter of the New York State Supreme Court issued a judgment and order in the Vanacore v. City of New York and New York City Administration for Children’s Services (ACS). In that case, petitioner Ralph Vanacore alleges that he was wrongfully terminated and seeks a judgment vacating ACS’s decision to terminate his employment and reinstating him to his position with back pay and benefits. His other request, which is more at issue in the present Court order, is that ACS reimburse him for all medical expenses he incurred as a result of being wrongfully terminated.

Prior to his termination, Vanacore had worked for ACS as a caseworker for over twenty years. He then suffered a job-related injury in April of 2012, after which he took approved medical leave. While on leave, he received a letter dated March 11, 2013 which indicated that he must “resolve his employment status.” To that end he was presented with several options: first, he could return to work with a doctor’s statement saying he was able to work, either with or without restrictions; second, if he could not return to work, he could file for social security or some other benefits; third, he could resign; or fourth, if he chose none of these first three options, he would be terminated. The letter referred to Section 71 of the Civil Services Law, which states that “…an employee who has been continuously or cumulatively due to a work-related injury absent for one year or more, may be separated from staff.”

Mr. Vanacore had been on worker’s compensation leave for almost one year when he received the letter. He then returned to work on April 15, 2013, and provided a doctor’s note saying he could work, but soon after returning he started another medical leave due to the same work-related injury. On June 24 he was again admitted to the hospital, where he stayed for two days. The next day, on June 25, the hospital informed him that he no longer had insurance coverage through his employer and would be responsible for paying all of his medical expenses himself. Only then did he learn that the City had, unbeknownst to him, terminated his employment effective June 14, 2013.

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Many employees accrue a considerable amount of time-off – vacation days, paid leave, sick days – over the course of their employment. In many cases, employees are entitled to compensation for that accrued leave when their employment ends. Employers are required to notify their employees of the company policy regarding payment of accrued leave; if the policy is to pay out accrued leave at the end of employment, or if the employee has reason to believe that they are entitled to paid accrued leave, then the employee may be able to recover for unpaid accrued leave.

Under New York Labor Law § 195, employers must “notify . . . employees in writing or by publicly posting the employer’s policy on sick leave, vacation, personal leave, holidays and hours.” The employer must . Courts in New York have repeatedly held that an employee’s entitlement to receive payment for accrued, unused paid time off upon termination of employment is governed by the terms of the employer’s policy. Where an employer’s policy is to pay out for accrued leave, they are obligated to do so.

Vacation pay under Article 6 is expressly regulated by § 198-c. Courts have held that 198-c “does not provide its own substantive source of recovery. Accordingly, an employee such as the Plaintiff can only recover benefits under section 198 if he is entitled to benefits under one of the substantive provisions of Labor law article 6.” Sosnowy v. A. Perri Farms, Inc., 764 F.Supp.2d 457, (E.D.N.Y. 2011). Essentially, if an employee is suing an employer for other forms of wage theft, such as underpayment of wages, failure to pay overtime, illegal deductions, or illegal withholding, then they have access to claims for unpaid accrued leave.

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On March 20, 2014, New york City Mayor, Bill De Blasio, signed his first bill into law – extending the right to paid sick leave to half a million more New Yorkers. Under New York City’s Earned Sick Time Act (Paid Sick Leave Law), certain employers must give their employees sick leave, which they can use for the care and treatment of themselves or a family member. The new law will require all businesses in New York with 5 or more employees to provide paid time off for its employees who are hired to work more than 80 hours a calendar year in New York City. Employers with less than 5 employees must provide unpaid sick leave. Employers who have one or more domestic workers who have been employed at least one year and who work more than 80 hours a calendar year must provide paid sick leave. The law will enter into force on April 1, but businesses with fewer than 19 employees will be allowed a six-month grace period before they are subject to fines “[b]ecause we recognize that there’s a period of time for employers to get to know the law, and work with the department to understand it” as stated by Consumer Affairs Deputy Commissioner Marla Tepper. The previous legislation only applied to companies with 15 or more workers.

As stated in the New York City press release, the paid sick leave law builds upon and expands on previous legislation by:

• “Eliminating the phase-in, which would have delayed coverage to workers at businesses between 15 and 20 workers. This means 140,000 people who would have waited until mid-2015 under the existing bill will have coverage this April. Eighty-five thousand of those workers do not currently have a single paid sick day.

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