Business leaders acknowledge the importance of protecting employees’ right to paid sick leave, especially during the pandemic, but they are criticizing what they call vague language and the various prohibitions that make it hard to comply with the legislation.
The state’s version of the paid sick leave law took effect Jan. 1. Some employers say the way it has been implemented has put an undue burden on them.
“Employers providing paid sick leave is a good thing. That’s why 80% of businesses had provided it in some form even before the legislation,” said Frank Kerbein, director of the Center for Human Resources at the Business Council of New York State. “But the way New York state has done it is bad.”
The state’s legislation does not require workers to provide minimum advance notice to use paid sick leave, and employers are prevented from asking for documentation, Kerbein said. Not only does this open the system up to abuse, but it also makes it harder for business owners to find workers to cover the gap, especially during a workforce shortage, he added.
“We don't want people coming in to work sick. But especially in the restaurant industry, if someone takes off right before a shift starts, it presents operational challenges,” said Andrew Rigie, executive director of the NYC Hospitality Alliance. “Unlike office work, a restaurant’s work doesn’t sit on a desk until the next day.”
In addition, Gov. Andrew Cuomo signed an executive order in March 2020 that provided extra time off for quarantine purposes, which compounded challenges for toeing the legal line, Kerbein said. Business owners said the mandate felt like an additional expense, he added.
Small businesses feel the brunt of such mandates more than larger ones, Rigie said.
“Some just don't have the cash flow, especially during the pandemic, to pay out the sick leave, especially if the requests all come at once,” he said.
The penalties for breaking the law—both financial and criminal— are also harsh as noncompliance is akin to wage theft, Kerbein said.
The state Department of Labor declined a request for comment.
Businesses recognize it is in their best interest to provide sick leave, but the industry had hoped for flexibility or input in how it could enact such policies, Kerbein said.
“Covid had disrupted us beyond anything we could imagine, and we just want to rebuild the economy," Rigie added. “Employers want to contribute without having worry about running afoul of an intricate law.”
A look at the city
A recent study from New York University found that the city’s implementation of its paid sick leave law, passed in 2014, reduced emergency room and specialist visits and increased the likelihood that a person had received preventive services.
The NYU study analyzed the usage patterns for emergency care, specialist and primary care visits as well as preventive care services of more than 550,000 Medicaid beneficiaries in the city and state from 2011 through 2017. It found that before the city’s implementation of its law, such patterns were similar in the city and the state. Within the first year of the city law going into effect, however, it achieved a 0.6% reduction in emergency department visits. There also was a 0.3% reduction in visits to the emergency department for conditions that could have been addressed in a primary care setting.
The numbers might sound small, but it’s important to note that the state had been trying for more than a decade to reduce emergency room usage among Medicaid beneficiaries but had never succeeded, said Sherry Glied, dean and professor of public service at NYU’s Robert F. Wagner Graduate School of Public Service. These small percentages translate into more than 8,000 fewer emergency room visits per year, which is significant, she added.
Although the study did not capture usage statistics for health care services during the pandemic, it was reasonable to expect the city law helped alleviate emergency room visits during the crisis, Glied said.
“Having their pay protected so they can take time off was key for preventing anyone from waiting too long to see a doctor, before [their] illness got worse,” she said. Being able to take time off during the day meant employees—especially lower-income ones—could see a doctor during work hours rather than go to the emergency room for an after-hours visit, she added.