Keeping Restaurants in Business: Sick, Safe, and Vaccination Leave in New York

Now that vaccines are becoming widely available, the hospitality industry is approaching a new version of normal whereby restauranteurs can maintain a safe and healthy workplace that supports efforts to rebuild and thrive. Laws affecting restaurants have changed frequently over the past year, largely with restrictions on capacity and indoor dining, and the employer-employee relationship has endured changes and challenges as well.

To avoid any further disruption to your business, it is important to understand your employees’ entitlement to paid and/or unpaid time off. Notably, New York State has modified its leave laws to expand sick and safe leave and it has created a new paid leave so that employees may obtain their COVID-19 vaccine. 

This article seeks to provide business owners a basic understanding of these new laws; however, every business is different and may be presented with unique circumstances. As such, it is advisable to consult with an attorney to discuss your specific circumstances. 

New York State’s Paid Sick Leave 

All private sector workers, including restaurant workers, part-time employees, overtime exempt employees and seasonal employees, are now entitled to sick and safe leave. Paid sick and safe leave is available to employees who work for business with five or more employees. Businesses with fewer than five employees and a net income of $1 million or less are required to provide unpaid sick and safe leave. As of September 30, 2020, covered employees in New York State began to accrue leave at a rate of one hour for every 30 hours worked and employees were permitted to begin using accrued sick and safe leave as of January 1, 2021. Importantly, employees who are paid on a commission, flat rate, or other non-hourly basis accrue sick leave by the actual length of time spent working.

In general, the amount of sick and safe leave depends on the size of the employer:

• Businesses with 0-4 employees are required to provide up to 40 hours of unpaid leave per calendar year if their net income is $1 million or less in the previous tax year. 
• Businesses with 0-4 employees are required to provide up to 40 hours of paid leave per calendar year if their net income is greater than $1 million in the previous tax year. 
• Businesses with 5-99 employees are required to provide up to 40 hours of paid leave per calendar year.
• Businesses with 100+ employees are required to provide up to 56 hours of paid sick leave per calendar year. 

To determine your number of employees, businesses must use a calendar year (January 1 – December 31). For other purposes, such as use and accrual, businesses may set a calendar year to mean any 12-month period. 

Businesses are not required to pay employees for lost tips or gratuities, but employers may not take a tip credit for leave time and must pay employees their normal rate of pay or the applicable minimum wage, whichever is greater. 

When an employee is paid at more than one rate of pay, paid leave will be at the weighted average of those rates. The weighted average is the total regular pay divided by the total hours worked in the week. Overtime exempt employees that are paid on an hourly basis are assumed to work 40 hours per workweek when deriving their regular rate unless terms and conditions of the employment specify or require otherwise. However, businesses are prohibited from reducing an employee’s rate of pay for leave time hours only. Significantly, if an employee uses sick time to cover hours that would have been overtime, the business does not need to pay the employee at the overtime rate, just their normal pay for leave time under this law. 

 Employees can use sick and safe leave for:

• Mental or physical illness, injury, or health condition, regardless of whether it has been diagnosed or requires medical care at the time of the requested leave; or for diagnosis, care or treatment of a mental of physical illness, injury or health condition; or need for medical diagnosis or preventative care. 
• An absence from work when the employee or employee’s family member has been the victim of domestic violence (as defined by New York’s Human Rights Law), a family offense, sexual offense, stalking or human trafficking due to any of the following as it relates to the aforementioned:
  • To obtain services from a domestic violence shelter, rape crisis center, or other services program; 
  • To participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members; 
  • To meet with an attorney or other social services provider to obtain information and advise on, and prepare for or participate in any criminal or civil proceeding; 
  • To file a complaint or domestic incident report with law enforcement; 
  • To meet with a district attorney’s office;
  • To enroll children in a new school; or 
  • To take any other actions necessary to ensure the health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee. 

Businesses may require leave be taken in set increments, such as 15 minutes, 30 minutes, one hour, but they may not set a minimum increment at more than four hours. Businesses may limit sick leave to what is provided under this law, however, any limitations permitted by the law must be put into writing and either posted or given to employees. Businesses must notify employees in writing or by posting a notice in the worksite, prior to the leave being earned, of any restrictions in their leave policy affecting the employees’ use of leave, including any limitations on leave increments. 

Importantly, businesses may not discriminate and/or retaliate against employees for exercising their rights to use sick and safe leave. Employees must be restored to their position of employment as it had been prior to any use of sick leave. To further protect your restaurant business, it is important to maintain accurate records. Under this law, businesses must keep payroll records for six years, which must include the amount of sick and safe leave accrued and used by each employee on a weekly basis. Businesses are required to provide employees, upon their request, and within three business days, a summary of the amount of sick and safe leave that an employee accrued and used in the current calendar year and/or any previous calendar year. 

New York State’s COVID-19 Vaccination Leave Law

Effective March 13, 2021, and expiring on December 31, 2022, all private New York employers, regardless of size, are required to provide employees up to four hours of paid leave for each COVID-19 vaccine injection received by the employee. Though the law itself does not provide many specifics regarding how businesses are to implement and administer this new leave, New York has released some guidance. This leave is in addition to the sick and safe leave described above, and any other leave the employee is entitled to, at the employee’s regular rate of pay. 

New York’s guidance has made clear that:

• The maximum leave time is limited and dependent upon the number of COVID-19 vaccine injections the employee requires. For example, if the employee receives a two-injection vaccine, they are entitled to two periods of leave up to four hours each, which could be up to eight hours in total. 
• Vaccination leave cannot be used by an employee to assist a relative or another person in getting a vaccine. 
• Businesses are not permitted to substitute other existing leave options. 
• The law does not prevent a business from requiring notice; however, there is not yet guidance about how much notice a business may require. 
• The law does not prevent a business from requiring proof of vaccination; however, businesses are encouraged to consider confidentiality requirements and laws prior to requesting any such proof. 
• The law is not retroactive. 

Further, businesses are prohibited from discriminating and/or retaliating against employees for exercising their right to use COVID-19 vaccination leave. 

Though the world has changed significantly over the last year, one thing has not, restaurants remain a highly regulated industry. As a restaurateur you have undoubtably been challenged by this pandemic in ways you could not have imagined. Staying on top of changes in employment laws, such as the leave entitlements described here, will certainly help add some predictability to an otherwise unpredictable world. Most importantly, understanding the law is your business’s preventative care and will go a long way to making your restaurant successful and hospitable for employees and guests alike.