NY: Paid sick leave and collective bargaining agreements

Paid sick leave and collective bargaining agreements

For those of you following our HR Updates and attending our paid sick leave webinars, you know that there have been concerns regarding how the January 1 implementation of New York’s new paid sick leave law will impact collective bargaining agreements currently in effect. Though not addressed on the state’s paid sick leave web page or in the FAQ’s, we have had several conversations with the governor’s office and with the General Counsel of the Department of Labor – as recently as yesterday - that have provided a consistent interpretation.

In short, the Department of Labor does not intend to commence any enforcement action against collective bargaining agreements in effect prior to September 30, 2020 that do not meet the minimum requirements of the new paid sick leave law (§196-b of the Labor Law). The Department recognizes the inviolability of CBA’s and it is not their intent to “upset” these agreements by requiring that they be reopened to address paid sick leave. 

In fact, even when these CBA’s do expire, §196-b allows for the negotiation of “comparable” or even “different” paid sick leave benefits as long as certain conditions are met. See below (emphasis added).

9. Nothing in this section shall be construed to: a. prohibit a collective bargaining agreement entered into, on or after the effective date of this section from, in lieu of the leave provided for in this section, providing a comparable benefit for the employees covered by such agreement in the form of paid days off; such paid days off shall be in the form of leave, compensation, other employee benefits, or some combination thereof; or 

b. impede, infringe, or diminish the ability of a certified collective bargaining agent to negotiate the terms and conditions of sick leave different from the provisions of this section. 

Provided, however, that in the case of either paragraph a or b of this subdivision, the agreement must specifically acknowledge the provisions of this section. 

The Department will be working internally to make sure this consistent message is communicated to all parties, including labor. It is unlikely, however, that the FAQ’s will be modified or to reflect this – consistent with the Departments customary reluctance to put some interpretations in writing. 

In addition, as promised, the Department has proposed regulations related to employer size, definition of net income, required documentation, and more. These are not yet final regulations and may be amended. You can find a summary of those proposed regulations here (bottom of page). If you have any comments on these proposed regulations, let me know. We will be submitting comments once they are published in the State Register.

This blog was written by Frank Kerbein, Director, Center for Human Resources, at the Business Council of New York State, Inc.