PTO, Vacation, and Leave

Employers Disclosing Reason for Employee's Leave

Submission Date

Thursday, March 21, 2024

Question

Are there any laws around a supervisor or manager telling others the reason for an employee being out on leave? Does the answer change if the employee isn't using sick time, but [has] disclosed why they were unavailable for additional hours during non-contract time?

Answer

Here are the state and federal laws specifically barring an employer from disclosing why an employee is out on sick or personal leave.[1]

New York State Human Rights Law (NYSHRL), whose regulations require that employers maintain the confidentiality of medical information disclosed as part of requesting disability accommodations.
The New York State Workers’ Compensation Law, which requires employers maintain the confidentiality of medical records used to assess benefit claims.
The Americans with Disabilities Act (“ADA”), which imposes very strict rules for handling information obtained through post-offer medical examinations and inquiries.
The Health Insurance Portability and Accountability Act (“HIPAA”), which requires employers to protect the privacy of employees' personal health-related information in relation to health insurance benefits.
The Genetic Information Nondiscrimination Act (“GINA”), which prohibits employers from requesting or using employees’ genetic information.
The Family and Medical Leave Act (“FMLA”), which requires that all records and documents relating to medical histories of employees or employees' family members created for purposes of FMLA be kept confidential.

This sounds straightforward, but of course, it isn’t, since only the first two laws (NYSHRL and Workers’ Compensation) apply to all employers in New York State, and not all disclosures related to sick or personal leave are “medical information” or private health records.

Here are some examples of disclosures that could be forbidden by law, if the law applies to the employee in question.

A library employee temporarily reduces their hours using FMLA leave to address a personal health issue; when the library’s board of trustees approves a budget item to hire a temp to fill the extra hours, a board member says at an open meeting: “This is to help with consistent service as [NAME] deals with [DIAGNOSIS].”
A museum employee is absent from work as a disability accommodation under the ADA, and the co-workers covering her shift are told that the schedule change “is because of [NAME] has [DIAGNOSIS].”
A warehouse employee who was injured on the job is on leave covered by Workers’ Compensation, and his supervisor schedules a time to go over the accident and review safety precautions with co-workers.
An office employee who needs disability accommodation provides proof from a treating physician and the documentation is left on the table in the break room for all to see.

Here are some things that could be gross violations of privacy, but without additional factors, would not be legal violations.

An employee is out on paid sick leave, and although an employer can’t require confidential medical information to use paid sick leave, the employee lets his supervisor know that he has the flu; the supervisor then tells everyone else they work with to “be on the lookout for flu symptoms, since [NAME] is out with a pretty bad flu.”
An employee is out on New York State paid family medical leave (not FMLA leave, due to the size of the employer) to help her spouse with a serious medical issue. Although the employee has not shared the reason for the leave with co-workers, the HR director organizes signatures on a sympathy card that alludes to the reason for the leave.
An employee is on discretionary unpaid personal leave to help out a friend who is ill and the reason for the leave is referenced throughout the workplace frequently.
An employee tells a coworker outside of work time that they can’t take on more hours due to issues with anxiety and depression, and the co-worker shares that information with colleagues.[2]

That said, the answer to this question really is: if an employee is concerned that their information may have been improperly shared or used, or if an employer is concerned about properly safeguarding employee information, consult an HR specialist or at attorney to confirm compliance.

For employees, there are often legal clinics that can address a question of this nature; check with your county bar association. For employers, there is “Ask the Lawyer” and your local employment and labor law attorneys.

This is a good one to get right, from the start, for everybody. Thank you for trusting me with this question.

[1] This list does not cover all the confidentiality requirements imposed on employers—just those related to sick time and general leave! There are many other things subject to confidentiality requirements; for example, a check of credit history must be kept confidential.

[2] While not a violation, if this information was then used to deny a promotion, or to not offer extra hours when they would otherwise be offered, that could be a problem! Don’t use second-hand medical information to make employment decisions.

Tag

Employee Rights

Privacy

ADA

HIPAA

Setting Limits on Pay Outs of Accrued Vacation Time

Submission Date

Friday, November 17, 2023

Question

Background: On Jan 1, 2023 we instituted several changes to employee time off accrual policies. We constructed the new vacation accrual policies carefully and gave some of our more senior staff "legacy policies" in order to not decrease any current employee's vacation accrual rate. However, we DID institute a cap on the number of vacation hours an employee could bank at any given time (1/2 a year for FT staff, and 1/4 yr FTE for PT staff). We did this for two reasons: 1) to mitigate financial risk to our library in the event of unforeseen separations, when we pay out any unused vacation time, and 2) to encourage staff to take regular vacations, which prevents burnout and encourages us to understand each other's job responsibilities better when covering for someone else.

Unfortunately, the vacation cap has had some unintended consequences. Some staff members are reticent to take vacation and are bumping up against the cap each month, which effectively means their compensation is being reduced. Also, our PT staff work varying number of hours per week (20-32) but we don't prorate the PT vacation cap (for logistical reasons), which makes it difficult for staff who work close to FT hours to save up enough time to take a longer vacation, or multiple vacations in a relatively short period.

My legal question is: If we were to change our time off accrual policy to allow staff to bank as much vacation as they like but specify that upon separation they could only be paid out 'x' number of hours, could we be accused of wage theft?

Answer

Vacation time is weird.

Why is it weird?

Well, first, it's fictional: it's time you get "paid" for, even though you are not at work.[1]

Second, unlike earned wages, vacation time can be magically obliterated, with employers deciding through policy that only a certain amount can be "carried over" or accrued.

And third, we don't use it enough.

So, with all the weirdness laid out on the table, let's answer the question:

Yes, an employer can use a clear and well-communicated policy to limit payout of accrued vacation time at termination.

This is because in New York, accrued vacation is not considered wages[2], but is considered to be a "benefit or wage supplement" (and why failure to pay it can be "wage theft").[3]

This is very nice of New York, but the protection does come with limits, the biggest one being that an employer can limit the obligation to pay out the accrued time through policy. So long as the policy is clear, there is no obligation to pay out accrued vacation.

Or, as they New York State Department of Labor puts it[4]:

Whether an employer must pay for unused time depends upon the terms of the vacation and/or resignation policy. New York courts have held that an agreement to give benefits or wage supplements, like vacation, can specify that employees lose accrued benefits under certain conditions. [See Glenville Gage Company, Inc. v. Industrial Board of Appeals of the State of New York, Department of Labor, 70 AD2d 283 (3d Dept 1979) affd, 52 NY2d 777 (1980).] To be valid, the employer must have told employees, in writing, of the conditions that nullify the benefit.

IF...

An employee has earned vacation time

AND...

There is no written forfeit policy

THEN...

The employer must pay the employee for the accrued vacation

A typical example of this limit is cited in the member's question: limiting "carry-over" from year-to-year, which effectively means wiping out time earned before it is used, generally to limit employee absence from too much accrual.

Case law and New York State Department of Labor Guidance specifically allow this limit, with the burden placed on the employer to have policy that is clear and well-communicated.[5]

As recently stated in a 2018 case[6] about unpaid vacation:

The determination as to whether a former employee is entitled to be paid for vacation time is generally governed by the contract between the parties (see e.g. Gennes v Yellow Book of NY, Inc., 23 AD3d 520, 522, 806 N.Y.S.2d 646 [2005]; Matter of Glenville Gage Co. v Industrial Bd. of Appeals of State of NY, Dept. of Labor, 70 AD2d 283, 421 N.Y.S.2d 408 [1979]; Colton v Sperry Assoc. Fed. Credit Union, 50 Misc 3d 129[A], 28 N.Y.S.3d 647, 2015 NY Slip Op 51894[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Steinmetz v Attentive Care, Inc., 39 Misc 3d 148[A], 972 N.Y.S.2d 147, 2013 NY Slip Op 50905[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]). "The employee bears the burden of proving an entitlement to payment for vacation time" (Linwood v United Activities Unlimited, Inc., 43 Misc 3d 131[A], 988 N.Y.S.2d 523, 2014 NY Slip Op 50612[U], *2 [App Term, 2d, Dept, 2d, 11th & 13th Jud Dists 2014]; see Grisetti v Super Value, 189 Misc 2d 800, 801, 736 N.Y.S.2d 835 [App Term, 2d Dept, 9th & 10th Jud Dists 2001]).

So, the key to what this library wants to achieve is a clear policy with a well-established "forfeit" provision; in this case, saying all but 2 weeks' worth of accrued vacation are forfeited upon termination.

When considering implementing such a payout limit, an employer is wise to (A) pay close attention to the practical effect it will have and give time for employees to use their surplus accrued time or (B) offer an on-time payout for over a certain amount of accrual, so people do not feel accrued time has been taken away from them. This requires attention to how much time an employee is allowed to take during the year and other factors that will be uniquely set by the employer’s policy.

And with that, I wish you good vacations.

[1] Just to be clear: I am all for people getting paid a good wage AND having time off. I just find it odd that time off is paid, rather than people just getting paid slightly more and working slightly less.

I think this is one reason Americans don't use all their vacation time.

[2] As that term is used in Labor Law Section 191, the law requiring "regular payment" of wages.

[3] As that term is defined by Labor Law 198-c.

[4] NYSDOL guidance on this is at https://dol.ny.gov/wages-and-hours-frequently-asked-questions.

[5] Id.—See footnote 4.

[6] Kane v. Ginnel, Supreme Court of New York, Appellate Term, Second Department (June 21, 2018).

Tag

Policy

Management

Paid sick leave for COVID quarantine

Submission Date

Wednesday, December 8, 2021

Question

The library (school district public library without a union or a bargaining agreement and less than 50 employees) offers paid sick leave for most employees. However, based on what we have learn we have paid people, without it coming off of their earned sick time, if they are told to quarantine because they have been exposed to the virus. Does the same hold true for someone who is out sick because they have the virus?

I have looked at the Ask a Lawyer FAQs, the various federal and state sites and issues of the HR Specialist Employment newsletter and do not see a clear answer.

Answer

I can offer a simple answer, and a complicated answer.

Here is the simple answer:

Per the "COVID-19 Sick Leave Law":

The current requirement of a public employer is 14 days of PAID leave for quarantine/absence due to COVID-19.
A private employer with under 10 employees must provide unpaid sick leave for the entire period of quarantine, during which time the employee can apply for Paid Family Leave benefits ("PFLA").
A private employer with between 11 and 99 employees, or with fewer employees, but at least $1 million in annual revenue, must provide 5 days of paid sick leave, after which the employee can apply for PFLA for whatever time they need to be out.

For employers with more than 100 employees, the employer must give 14 days.

In all instances, the time out for COVID must not count against other accrued sick leave.

And that's it.

The complicated answer

As you can see, the obligations under the Covid-19 Paid Sick Leave Law depend on the type and (if private) the size of the employer.

So, is your library a "public employer?"

The definition of "public employer" in this law is broader than in many other labor-related laws, so unless your library's HR and employment arrangements are 100% separate from those of the local municipality or sponsoring district, it is wise to consider this applicable (or get it in writing from your lawyer that it isn't).

Since the library that submitted the question is offering paid sick leave for "most" employees--which means there is a different approach for different employees--it sounds like they have decided the library is not subject to Labor Law 196-b (New York's new "Sick Leave Law"), which applies to only private employers.

This issue is not an atypical one in New York's "Library land." Does your library use comp time instead of overtime? That is an option available only to government employers. Does your library use the federal rather than the state minimum wage? Only a government employer can do that. Does your library not have to follow the Wage Theft Prevention Act? Employers are only exempt if they are a government employer. The list goes on and on.

[NOTE: A nice exception to this dichotomy is worker's compensation for work-related injury. EVERYONE has to pay into worker's comp; you could say it is something New York employers all have in common].

The bottom line on this "complicated" answer? Make sure your library has clarity about which employment-related laws it decides that apply to it before it implements a COVID-19 Paid Leave policy based on them. And when in doubt, have a lawyer examine the compensation and other aspects of your library's employment arrangements to make the decision that is most consistent with its other employment-related practices.

Thanks for a great question. And if this "public/private" employer issue has you flummoxed, here is a short poem to help out:

Library Labor Law Chanty

What law governs at my library?

What labor laws must we abide?

What legal authorities preside?

Sorry, there's no simple rule

Be you association, town, or school

But here's a few comforting rhymes

To get you through confusing times:

An oath of office is required

When a public library director's hired

Civil service law protects employees

Except at association libraries

Must my library pay state minimum wage?

YES (unless only the FLSA is your gauge)

Do we have to pay overtime?

Not if you're municipal AND grant comp time.

The new sick leave law pays workers' rent

Unless your (sorta) government

And no matter who gets COVID-19

Employees ALL get paid during quarantine.

What if we offer NYS retirement?

Just that doesn't make you government.

But if HR's handled by your municipality

You might just be a public agency.

What if there's a union contract?

That can change everything, that's a fact.

And don't forget your HR handbook

Should be based on the "type" of path you took.

Yes, there IS legal variety

caused by the "types" of library

But despite inconsistencies

One thing's always true: director hired by trustees.

And regardless of type or identity

And despite any support or interdependency

No matter what your answers to the questions three

Your library has... autonomy.

Tag

Sick Leave

Workers Comp

Paid time-off for COVID-19 vaccinations

Submission Date

Thursday, January 21, 2021

Question

Are public or private libraries obligated to give paid time off for eligible employees to get the vaccine during work time? A staffer is planning to go upstate for it on a work day and the question came up if they have to use sick time or just "get the day" to take care of this. Thank you!

Answer

Non-governmental employers

Recent changes to the Labor Law make the "private" part of this question easy to answer: since all employers must now offer all employees sick leave (unpaid if the employer has under four employees, paid if five or more), an employee may use that sick leave for the purpose of obtaining medical care, including to get vaccinated.

If a non-government-agency employer would like to go one step further and not require an employee to use accrued sick leave, but instead, give them a day (or two half-days, for the vaccine that requires two shots) for the specific purpose of being vaccinated, that's fine, too, so long as the library considers vaccination of employees to be part of its Safety Plan (making the vaccination a work activity, and not a prohibited gratuity from a charitable entity to a private person).[1] But there is no obligation to do so.

Small but critically important exception to this rule: if your library employees are in a union and their time off is subject to a collective bargaining agreement, you must check and abide by that agreement, or develop a special provision with the union.

Public libraries

Okay, this is where it gets tricky. For public libraries that consider their employees to be employees of a "government agency," hang on one second, we'll address what you can do in the paragraph below. For all other public libraries, who must follow the new sick leave law, the section above applies.

Public Libraries Who are "Government Agencies"

For public libraries whose employees are considered employees of their sponsoring municipalities,[2] there is no obligation to "give" paid time out of the library to get vaccinated unless it is in a collective bargaining agreement or your government subdivision's response plan. However, if your library is allotted vaccine as part of a rollout to public employers, and the entity you are getting it through (sponsoring municipality or school district) is encouraging vaccination by allowing it to be done on work time, that is an option to consider. Further, if your library develops an employee vaccination rollout plan as an addendum to its Safety Plan[3] and would like to offer up to a certain number of hours of paid time out of the office to encourage vaccination, if part of a plan, that can be allowed (but is not required).[4]

Small but very important exception to this rule, just like with "private" libraries: if your library employees are in a union and their time off is subject to a collective bargaining agreement, you must check and abide by that agreement, or develop a special provision with the union.

For All

Issues like this a) affect mission and morale, b) relate deeply to employee and public safety, c) can impact a library's budget, and d) are fraught with compliance concerns, so any decision is best to tie to your library's Safety Plan,[5] and to have trustee approval (confirmed by a vote).

I continue to admire the care for others, tenacity, and attention to detail members of the library community bring to their questions as we get through this pandemic together.

[1] Just to be clear: to avoid a forbidden benefit to an individual, NO charitable entity should "give" a paid day off for vaccination without linking the enhanced safety of workers to its charitable operations (i.e., making it a part of their Safety Plan).

[2] Note: even when this is the case, the library's board of trustees, and only the board of trustees, determines who is hired, how they are compensated, and any matters related to development, discipline, and termination.

[3] This "Ask the Lawyer" addresses how to prioritize vaccine allotments and roll them out through policy: RAQ #193.

[4] At least, it is not required as of 1/21/21. As with all things COVID, check for updates on this.

[5] And be reviewed by a lawyer, whenever possible.

Tag

Association Libraries

Public Libraries

Safety Plan

Vaccine priorities for staff

Submission Date

Tuesday, January 19, 2021

Question

The governor announced that the vaccine rollout to public employees would be through our unions and health groups, but also said that WE need to prioritize who receives the vaccine first (based upon risk factors/comorbidities) since the supply is limited (as the governor mentioned in Friday's press conference) --it will probably take a few months to vaccinate every staff member who wants one.

How can we organize our internal "prioritization?" Should we prioritize those with underlying health conditions, or use other criteria? What about HIPAA? I want to do this fairly, but I am also concerned about the ethics.

Answer

The member's caution shows how important it is to get this one right.

Before delving into it, I want to say: for public libraries with a union, this is one to confer with union leadership on.

For public libraries without a union, it will be good to think about not only your internal prioritization, but the messaging around it.

And for all libraries connecting their employees to vaccine, this is one to plan in careful coordination with a board committee, your lawyer, and your local health department.

With the right participants at the table[1] and careful consideration of ethics and privacy, finding the right plan for you won't be easy, but you will get it right.

This question is about the "ethics and privacy" part of the process. For a public institution that will be part of this rollout, the State of New York's own ethical statement and guidelines for prioritization are a good place to start. Here they are:

New York State based its COVID-19 vaccine distribution and administration process on ten guiding principles.

Safety: New York State will only endorse and distribute a COVID-19 vaccine if it is determined to be safe and will only be used according to the indication under which it received its authorization or license. This includes continued monitoring and reporting of adverse events after the vaccine is licensed and administered.
Effectiveness: New York State will only endorse and distribute a COVID-19 vaccine if it is demonstrated to be appropriately effective in the populations intended for use.
Expert approved: New York State will rely on the advice and counsel of recognized clinical experts and scientists to review and approve the safety and effectiveness of every vaccine that is authorized by the federal government for distribution.
Equitable & clinically driven distribution: New York State’s COVID-19 vaccine distribution plan will be based on standards that prioritize people at higher risk of exposure, illness and/or poor outcome. Unrelated factors, such as wealth or status, will not influence distribution.
Transparency: Throughout the COVID-19 crisis, the state’s daily public presentation of facts and reliance on science and medical expertise helped build public trust and confidence in government action. New York State will continue to be transparent regarding all aspects of the COVID-19 vaccine distribution, administration, and monitoring process to ensure New Yorkers are fully informed.
Use of Data: Coordination of a successful vaccination program will require robust tracking, data and analytics capabilities. New York State will use powerful data and information technology platforms to guide all parts of the COVID-19 vaccine distribution and administration process to maximize safety, accuracy, and efficiency and meet all federal reporting requirements — all while maintaining patient privacy.
Privacy and Patient Safety: New York State will ensure all vaccination processes prioritize patient safety, and all information systems guarantee patient privacy. Vaccination does not take away the importance of other public health measures that have served us well in the fight against COVID-19. New Yorkers will be urged to continue to practice social distancing, mask wearing, hand washing, and other measures.
Partnership, Coordination & Public Outreach: New York State recognizes that coordination with local organizations and community providers is essential to the safe and successful distribution and administration of COVID-19 vaccines. The state’s outreach efforts will especially focus on reaching underserved, hard to reach, and vaccine-hesitant populations, as well as those at highest risk for COVID-19 infection and poor outcomes.
State Leadership: New York State expects federal engagement on vaccine vetting, distribution, administration, and funding. However, regardless of the level of federal engagement, New York State will take all necessary steps and require local coordination with the state’s centralized approach to ensure an efficient and organized vaccine distribution.
NEW YORK TOUGH: Throughout this COVID-19 crisis, New Yorkers have shown that there is nothing we cannot do if we work together as one community. Our approach to the COVID-19 vaccine will be tough, strong, united, disciplined, and loving.

Informed by these guiding principles, each library can consider its unique policies, Safety Plan, and if relevant, collective bargaining agreement (union contract), and confirm its own internal method of prioritizing.

While these variables will make each library's position unique, the best way to confirm and follow the method of prioritization they decide on is to:

1) Adopt a written policy;

2) Document that it is being followed consistently;

3) Notify the employees and the public as to how the process will be implemented.

Here are an "example policy" and "example notice" drawn from the State's approach:

[**START EXAMPLE POLICY**]

[NAME] Library Vaccine Distribution Policy [Employees Only]

[**EXAMPLE ONLY**]

Policy

In step with the method of prioritization being applied by the State of New York, [NAME] Library's COVID-19 vaccine employee distribution plan will be based on "levels" that prioritize people at higher risk of exposure, illness and/or poor outcome.

Definitions and Levels

"Higher risk of illness and/or poor outcome" means that a medical condition makes it potentially more likely the employee could become ill, or, if they do become ill, are statistically more likely to experience a poor outcome; such need shall be considered "Level 1(d)."

"Higher risk of exposure" means those who, working within the parameters of the Library's current safety plan, PPE requirements, and operations:

Perform any function or share any criteria required for vaccination during the New York Department of Health's Vaccine Distribution Phases 1a and 1b (including those 65 and older), but did not obtain the vaccine; such need shall be considered "Level 1(a/b)".
Must report to work on site and physically interact with the public as part of their routine job duties, and/or handle circulating materials; such need shall also be considered "Level 1".
Must report to work on site as part of their job duties; such need shall be considered "Level 2".
Performing all work duties 100% remotely; such need shall be considered "Level 3".

Procedure for 1(d) requests

Any Level 1(d) requests for vaccination shall be confidential. When supplies are available to the Library, employees who self-identify as at "higher risk of illness and/or poor outcome" may request COVID vaccination through the same confidential process used to request and arrange disability accommodations, with the understanding that during this time of extra burden on medical providers, documentation of the condition creating the need may be supplied after vaccination (please supply a note from your physician when you are able).

A request for vaccination may be considered separately or together with accommodations based on disability.

Procedure

Any employee may request vaccination.

When supply and demand require prioritization, the order of priority shall be:

Levels 1 (any type): highest priority

Level 2 and with a member of their immediate household with higher risk of illness and/or poor outcome: second highest priority

Level 2: third highest priority

Level 3 and with a member of their immediate household with higher risk of illness and/or poor outcome: fourth highest priority

Level 3: fifth highest priority

All others: lowest level of priority

If further prioritization is required to prioritize between Level 1 employees, the order of priority shall be:

Level 1 (a/b)

Level 1(d)

Level 1 (any type) and with a member of their immediate household with higher risk of illness and/or poor outcome

Level 1

If an employee is selected for vaccination through the library, the employee will be expected to follow all the rules and procedures for vaccination.

Employees not selected will be placed on a wait list in order of priority.[2]

The Director, or their designee, shall be responsible for compliance with this policy.

[**END EXAMPLE POLICY**]

[**START EXAMPLE NOTICE**]

[NAME] Library Vaccine Opportunity Notice

[**EXAMPLE ONLY**]

DATE: [INSERT]

The Library has been issued # doses of COVID-19 vaccine. We expect to be able to initiate vaccinations on DATE.

As determined by the attached policy, the Library will be offering vaccination through our allotment to as many employees as possible.

Vaccination is voluntary.

Please transmit your interest in being vaccinated and your assessment as to the level of priority you fall into (see the policy) to name@address by DATE.

For example: "I am voluntarily requesting vaccination through the library's allotted doses. I believe my priority level is "1."

Requests that include medical disclosures will be treated confidentially.

If the library is able to grant your request, we will send you information regarding next steps, and you will be expected to follow all the rules and procedures for vaccination. Employees not selected will be placed on a wait list in order of priority.

Supplies are limited. If you have the opportunity to be vaccinated through another supplier, we encourage you to do so. Employees may use up to a day of sick leave for each vaccination session.[3] The library places the highest priority on the health of our employees.

[**END EXAMPLE NOTICE**]

Final notes from the lawyer:

These are early days for the vaccine and vaccination rollout. While being prepared with a policy is the right move, prior to announcing any prioritization, after adopting a policy, be ready to be flexible, since the situation is changing rapidly.

As with all major policies, this is one that ideally will be adopted via a vote by your board.[4] Here is a sample resolution for you:

BE IT RESOLVED, that after due consideration of the "guiding principles" of the State of New York and the library's own code of ethics, that the Library adopt the attached "Library Vaccine Distribution Policy" and "Notice;" and

BE IT FURTHER RESOLVED, that the [insert] committee shall work with the Director to monitor the need to revise this policy, based on any new guidance, knowledge, or operational needs.

I wish you good health, strength, and fortitude as we move into this next phase of overcoming the pandemic.

[1] This does not mean your library's (online) meetings about your rollout should have a cast of thousands—or even 5. A good approach is like a series of waves: a small core group of policy makers (director and one or two board members) reach out to the identified parties to alert them and get initial input, set a time to check in on a final draft, set a tight deadline for final input and final approval by the board. With the right planning, this can be done in 3-5 business days, and no one should be allowed to sandbag it.

[2] Care should be taken that any Level 1(d) designation is not set forth on a list that can be accessible per FOIL. Once created, a wait list should simply set forth the names or employee ID numbers in order of priority.

[3] Drafting note: for libraries that must follow the new sick leave law (Labor Law Section 196-b, effective in September 2020), time off for vaccination does qualify as sick leave. Libraries that regard themselves as being exempt government agencies, and thus not subject to 196-b, should check with their municipal attorney or HR professional to confirm if this meets the requirements for sick leave under municipal policies.

[4] While it is critical that a library board of trustees entrust the day-to-day management of the library to the director, policies are always ideally adopted at the level of highest accountability. This will also position a board to have a director's back if there is a legal or operational challenge to the vaccine distribution policy.

Tag

NY's paid sick leave law

Submission Date

Thursday, November 5, 2020

Question

The state's new paid sick leave law recently went into effect on September 30th. According to the state's website, eligibility requirements are as follows:

"All private-sector employees in New York State are covered, regardless of industry, occupation, part-time status, and overtime exempt status. Federal, state, and local government employees are NOT covered, but employees of charter schools, private schools, and not-for-profit corporations are covered."

As a school district public library, I'm curious to know if we fall into this local government category and so are not covered by the law. According to the state comptroller's table summary of local government entities ~~[https://www.osc.state.ny.us/local-government/data/local-government-entities]~~ [NOTE: This link was confirmed as no longer active and removed on 02/25/2022 as part of the routine review of "Ask the Lawyer" materials.], public libraries are listed as "Miscellaneous Local Public Organizations".

However, in regards to page 33 of the State's Local Government handbook,

"Local government in New York State comprises counties, cities, towns and villages, which are corporate entities known as municipal corporations. These units of local government provide most local government services. Special purpose governmental units also furnish some basic services, such as sewer and water services. School districts, although defined as municipal corporations, are single-purpose units concerned basically with education in the primary and secondary grades. Fire districts, also considered local governments in New York State, are single-purpose units that provide fire protection in areas of towns. Fire districts are classified as district corporations. There are other governmental entities which have attributes of local governments but which are not local governments. These miscellaneous units or entities are generally special-purpose or administrative units normally providing a single service for a specific geographic area."

I wonder if a school district public library, such as ourselves, doesn't fall under this last category of governmental entity: one which has attributes of local governments but which is not a local government. If this is so, then this new law would seem to apply to us as well.

It's all a little confusing. Maybe you can help!

Answer

I wish I could reply to this excellent question with a plain "yes" or "no." But I cannot.

Why not? Because, while as the member points out, a public library's "type" is relevant to this question, what may also be relevant is how the employees are being paid. So answering this question requires a two-factor analysis:

Factor 1: Is the library in question considered a "type" of "governmental agency[1]?"

AND/OR

Factor 2: are the employees of that library compensated as if they were employees of a governmental agency?

If the answer to either question is "yes," Labor Law 196-b (which is the new "sick leave" law) doesn't apply. If the answer to both is "no," then it may be time for the non-exempt library to draft a new Sick Leave Policy.

Now let's talk about the factors in this "two-factor test."

Factor 1: Is the library in question considered a "type" of "governmental agency?

Most libraries in the state of New York are NOT "governmental agencies" as that term is used in Labor Law Article 6 [2].

Sure, the library has to account for taxpayer money as required by the "General Municipal Law." And yes, it is subject to parts of the "Public Officers Law." And yep—it may even have to disclose certain records under the Freedom of Information Law.

But none of that means they are performing a function of a "governmental agency" as defined under the Labor Law, which is where the new "sick leave" rules come from. Under the Labor Law, a public library is far more likely to be considered a not-for-profit education corporation required to offer sick leave (and provide Workers' Compensation Insurance, and follow the NY Minimum wage laws...), than an exempt entity like a school district.

Now that being said, even if a library is not a "governmental agency," they may also be exempt from 196-b if their employees are....

Factor 2: "Compensated as if they were employees of a governmental agency"

How can this type of "compensation" happen, if the library itself isn't a "governmental agency?"

In New York, many libraries use their sponsoring municipalities and sponsoring school districts[3] as the "employer" of their employees—even though the library board retains the legal autonomy to hire, discipline, set compensation, promote, or terminate the employees.

In this type of scenario, the library employees are a) paid directly by the municipality[4], b) are covered by the municipality's insurance[5], c) get the municipality's benefits, and (most tellingly) are d) eligible for "comp time"[6] otherwise barred by rules requiring mandatory overtime. In short, under much of the Labor Law,[7] they are treated as municipal/district employees.[8]

So does my public library have to give employees sick leave under the new law, or what?

Sadly, there is no "bright-line" rule. But! I have created a handy "Library-Municipality Relationship Type" chart to help you figure it out if it's something your library needs to worry about:

Library-municipality Relationship Type	Hallmarks	Legal impact with regard to employees and labor law	What this means with regard to the new "Sick Leave" law ("196-b").
1. "Total Coupling" Type	The library never separated any functions from the sponsoring entity; all finances, employee compensation, employee benefits, procurements, and property are owned/controlled by the municipal entity. Ideally, the relationship is confirmed in writing.	In "total coupling," employees of the library, for Labor Law 196-b purposes, are considered municipal/district employees, even though the library board retains the authority to hire, discipline, set compensation, promote, or terminate the employees.	Employees are totally covered by the policies and benefits of the municipality/district, including the sick leave policy, and 196-b does not apply.
2. "Select support: determinative" Type	The library has separated some functions from the sponsoring entity, but some functions determinative of legal status remain controlled by the municipal entity; for example, if a town still owns the library's building, or payroll and benefits are through a city. Ideally, the relationship is confirmed in writing.	In a "Select support: determinative" scenario, if "employment" is a determinative factor, employees of the library are paid by the municipality/district, so for legal purposes the employees might be considered municipal employees, even though the board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees, and even though the library has de-coupled from the entity in other ways.	IF employees are totally paid by and covered by the benefits of the municipality/district, including their sick leave policy, 196-b does not apply. Otherwise, the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" to be exempt.
3. "Select support: non-determinative" Type	The library has separated from the sponsoring entity to the degree that any slight collaboration between the library and the municipality does not determine legal status. For example, the Town may plow the parking lot as a courtesy, but does not own the building, hold the money, or provide payroll/benefits. Ideally, the relationship is confirmed in writing.	In a "Select support: non-determinative" scenario, the select support related to employees would not risk creating employer-employee status, or influence compensation and benefits, but could still be helpful assistance. For example: if library employees were allowed to attend town employee trainings and professional development to save money for the library.	Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).
4. "Totally De-coupled" Type	The library has completely separated functions from any sponsoring entity. The library owns the building, does all its own procurement and contracting, is the sole administrator of employee-related matters, and takes no extras or freebies from its municipalities/district. No need to confirm the lack of relationship in writing, but you can exchange New Year's cards.	In a "total de-coupling," there is no select support related to employees. Librarians and municipal/district employees might say "hi," but they don't attend regular trainings or joint work sessions, and they are not in any way co-workers.	Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b[9], OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).

And there you have it. From what I have seen, every public library in New York State handles its coupling/de-coupling in a different way. Charter documents, bylaws, MOU's, and political/diplomatic relations can influence this just as much (if not more than) that law. If you know where your library stands, you can not only assess its obligations under the Labor Law, but many other critical compliance obligations, as well.[10]

The bottom line here is: library employees shouldn't be left in a lurch, especially when it comes to sick leave, family medical leave, short-term disability, workers' compensation, and paid family medical leave—all of which are rooted in the question of "who" their employer is. This means library trustees should periodically confirm, with certainty and clarity, what policies apply to their workforce.[11] Regardless of where a library falls on the above chart, this can be accomplished with a confirmed, clear set of policies.

As employment law gets more and more intricate, and as we continue to live with a pandemic, this need for clarity will only get more critical.

I want to say a big "THANK YOU" to Ben Gocker at Tupper Lake Public Library for submitting this excellent question and bearing with me while I talked through the answer with him.[12] Like all librarians I get to work with on "Ask the Lawyer," Ben is a critical thinker who brought a lot of research and practical experience to his question. He also exhibited incredible patience as I tried to explain the mutable legal status of bodies defined by the Education Law, operating under the Not-for-Profit Corporation Law, subject to the General Municipal Law, living with the Civil Service law, and of debatable status under the Labor Law. Thanks again, Ben!

I hope this approach and chart come in handy for public libraries out there struggling with this question.

[1] I know this sounds like a re-hash of the member's point in the question, but in this case, I mean as that term is defined in Article 6 of the Labor Law, which is the section 196-b is part of.

[2] Section 190 of the Labor Law, whose definitions apply to 196-b, states: “Employer” includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service. The term “employer” shall not include a governmental agency."

[3] How this is accomplished will vary, BUT there should always be a written document that sets forth how it is accomplished, and what compensation structure, benefits, and laws apply to the employee. If there uncertainly about how an employee gets worker's comp, unemployment, or paid family leave, that is a sign the library and entity have to examine things a bit further.

[4] Or school district.

[5] Worker's compensation, unemployment, paid family leave, etc.

[6] "Comp time" is when employees can "bank" time off, rather than get paid time-and-a-half for overtime. Only municipalities who are exempt from the Fair Labor Standards Act can do that. For more on that, see "Ask the Lawyer" RAQ #59.

[7] Except the Taylor Law.

[8] I can't emphasize this enough: even when this is the case, the library board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees.

[9] Just in case you read this and think "Oops—we may need to develop a policy!" A good breakdown and resources for compliance can be found at https://www.ny.gov/programs/new-york-paid-sick-leave.

[10] That said, this chart only considers the application of Labor Law 196-b. If it tackled everything, it would be...very, very long. For a good case that shows how tricky these “what is a library” issues can be when it comes to employment, check out this case.

[11] It will vary from place to place, but for public libraries, your civil service rep should be a great resource for this.

^{^[12]} And another big thank-you for agreeing to be publicly thanked.

Tag

Time Off Benefit Policy

Submission Date

Monday, October 16, 2017

Question

A member asks…[We] are switching to a Paid Time Off (PTO) model in 2018 and are looking for guidance on how to handle payout of the benefit when an employee terminates from employment. We would like to offer each employee their full yearly amount of PTO at the beginning of the calendar year (or start date of employment for new hires). However, we are concerned about the budget impact of having to pay out for every hour of PTO an employee has amassed in situations where employees terminate early in the year. As such, we are exploring a policy in where an employee receives all of their PTO hours at the beginning of the year and is free to use those days for time off. But if they terminate, they would only be paid out for a prorated amount of the PTO balance they have based on the number of hours they worked during the calendar year in which they terminated. Would such a system, if made clear in our Personnel Policy and not impacting any time accrued under a previous policy, be acceptable? Alternatively, would the Library be able to cap the amount of hours paid out upon termination to an amount we determine (35 hours/70 hours)? … Any feedback you could provide would be greatly appreciated. [Emphasis added]

Answer

Libraries are service-intensive environments, which means they depend on their employees to report to work. However, since so much depends on staff, libraries are also wise to give their employees the tools for self-care and a proper work-life balance. A PTO policy is a great way to facilitate this.

What is “PTO?” Put simply, PTO is a finite amount of paid time off work (scheduled or unscheduled), to be used for vacation, short illnesses, “mental health days,” or whatever else is needed (note: often, bereavement is excluded). By not dividing time off into distinct types, PTO enhances employee privacy and flexibility—while decreasing the administrative burden of tracking the type of time.

The increasing use of PTO also makes sense as the ADA, the FMLA, and the upcoming New York Paid Family Leave Act have changed the landscape of medically-related time off.

Before we get to the heart of the member’s question, let’s start with some crucial basics. Under NY labor law, employers must have a written policy (or policies) governing sick leave, vacation, personal leave, and holidays. [1] Under that law, as governed by the policy, the value of these “wage supplements” must be paid out at termination.

That said, conditions can be put on the terms of these “supplements”; according to the DOL the amount of time that can be cashed out “depends upon the terms of the vacation and/or resignation policy.”

This guidance is backed up by case law: New York courts [2] have held that the required policies about PTO can specify that employees lose accrued benefits if such loss is a condition of the policy.

Among other things, conditions in PTO policies may cover the following:

How PTO accrues (annual, or more incremental);
How eligibility and earned amounts are governed (for instance, part-time vs. full-time, or based on years of service);
How much PTO can be paid out at termination;
If eligibility for payout survives termination for misconduct;
How “scheduled” and “unscheduled” (sick, emergency meeting, etc.) PTO is granted;
If a certain amount of reasonable notice before quitting is required to get the payout;
If a restriction on the number of employees using PTO at once is needed (this is critical for service-intensive environments like libraries).

In addition, any transitional/new policy can (and should) expressly address already accrued wage supplements (for instance, converting any unused vacation to PTO, or paying it out). As the member shows sensitivity to in their question, the new policy should never nullify wage supplements already accrued.

So, here we are, at the heart of the member’s question: can the amount of PTO cashed out at termination be pro-rated based on the time of year the resignation happens? The answer is: Once given, PTO should not be clawed back based on a variable factors, even those factors are set out in the policy. However, the solution is just as the member posits (and as is listed in the third bullet, above): uniformly capping the amount to be paid out, and applying it without fail. [3]

IMPORTANT CONSIDERATION

Of course, developing a PTO policy does not happen in a vacuum. Aside from the recruitment, retention, and employee wellness objectives, a library considering transitioning to PTO needs to consider:

The nature of the library (public, private, part of a larger entity, etc.);
The bylaws and role of any board policy or committee (for instance, if there is a personnel or HR committee, this topic would be of interest to them);
Any union contracts or other contractual obligations at play;
The full suite of employee benefit policies, and the recruitment, development, and employee retention and compliance goals they serve;
The budget impact of any changes.

Once a library arrives at draft policy, prior to it being enacted, a lawyer should review the policy to ensure it is compliant, and works well with related legal obligations, contracts, policies and procedures. Further, it is ideal if the policy is reviewed by the treasurer, and/or the person preparing the budget, and/or the person who files any tax forms on behalf of the entity. I’m no accountant, but I know PTO is logged in a specific way on balance sheets, and it can have an impact on financial statements.

So once you have your draft PTO policy, invite your lawyer, your treasurer, and your accountant (there’s a joke in there somewhere, I know), over for a quick cup of coffee, and make sure everyone says you’re ready to launch!

[1] Section 195.5 of the Labor Law states: Every employer shall notify his employees in writing or by publicly posting the employer's policy on sick leave, vacation, personal leave, holidays and hours.

[2] [See Glenville Gage Company, Inc. v. Industrial Board of Appeals of the State of New York, Department of Labor, 70 AD2d 283 (3d Dept 1979) affd, 52 NY2d 777 (1980).]

[3] PTO can also be given on a more incremental basis, but this nullifies some of the flexibility benefits it can bring. That said, the policy should consider when an employee first qualifies, and if starting employees get a pro-rated amount based on their start date.

Tag

Employee Rights

Management

Policy