New York State Enacts Paid Sick Leave
On April 3, 2020, New York State enacted state-wide mandatory sick leave, which employees may begin using on January 1, 2021. This leave is in addition to the emergency paid sick leave for COVID-related reasons, which was enacted a few weeks ago. Employers in New York City and Westchester will find the new law similar to the existing local requirements, with some changes.
How Much Sick Leave Must Be Provided?
The amount of sick leave varies based on the size of the employer in a calendar year (meaning January 1 through December 31). Employers are not, however, prohibited or prevented from providing additional paid sick leave.
Employers with 4 or fewer employees in any calendar year: up to 40 hours of unpaid sick leave in a calendar year; however, if that employer has a net income of greater than $1 million in the prior tax year, the leave must be paid.
Employers with 5 – 99 employees in any calendar year: up to 40 hours of paid sick leave in a calendar year.
Employers with 100 or more employees in any calendar year: up to 56 hours of paid sick leave in a calendar year.
For the purposes of determining when sick leave can be used, the term “calendar year” means any regular and consecutive 12-month period determined by the employer, including January 1 – December 31.
What are the Accrual, Use, and Carryover Requirements for Sick Leave?
Employees may accrue sick leave at a rate of not less than one hour per ever thirty hours worked, subject to the use and accrual limitations contained in the law. Accrual of sick leave begins at the later of the commencement of employment or September 30, 2020. Alternatively, employers may frontload the required amount of sick leave at the beginning of the calendar year, but cannot reduce or revoke any sick leave based on the number of hours the employee actually works.
An employer may set a reasonable minimum increment for the use of sick leave, but the minimum increment cannot exceed four hours.
Employees must be able to carry over unused sick leave to the following year, but employers may set limits on the amount of sick leave that an employee can use per calendar year, depending on the size of the employer: An employer with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year. An employer with 100 or more employees may limit the use of sick leave to 56 hours per calendar year. While it’s not explicit in the text of the law, these use limits may mean that employers who frontload the required amount of leave at the beginning of the calendar year do not need to permit employees to carryover unused leave to the following year.
When Can Employees Use Sick Leave?
Employees may begin using sick leave on January 1, 2021. Sick leave may be used for the following purposes:
For a mental or physical illness, injury, or health condition of an employee or an employee’s family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that such employee requests leave;
For the diagnosis, care, or treatment of a mental or physical illness, injury, or health condition, or need for medical diagnosis of, or preventative care for, an employee or the employee’s family member;
For an absence from work due to any of the following reasons when an employee or the employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking:
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 to 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 advice 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 new school
to take 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.
Who Qualifies as a “Family Member”?
“Family member” means an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent; and the child or parent of an employee’s spouse or domestic partner. “Parent” means a biological, foster, step- or adoptive parent, a legal guardian of the employee, or a person who stood in loco parentis when the employee was a minor child. “Child” means a biological, adopted, or foster child, a legal ward, or a child of an employee standing in loco parentis.
How can Employees Request Sick Leave?
Sick leave must be provided at the oral or written request of the employee. Employers may not require the disclosure of confidential information relating to a mental or physical illness, injury, or health condition of the employee of the employee’s family member, or information relating to absence from work due to domestic violence, a sexual offense, stalking, or human trafficking, as a condition of providing sick leave.
How Much are Employees Paid During Sick Leave?
Employees entitled to paid sick leave must receive compensation for sick leave at their regular rate of pay, or the applicable minimum wage, whichever is greater.
Employers are not required to pay employees for unused sick leave upon the employee’s termination, resignation, retirement, or other separation from employment.
Does the Employee Have Return to Work Rights?
Yes. Upon returning to work following sick leave, the employee must be restored by the employer to the position of employment held prior to the sick leave with the same pay and other terms and conditions of employment. Employees are protected against discharge, threats, penalties, discrimination, and retaliation because they have taken or requested leave.
How does the Law Impact Existing Sick Leave Policies?
Employers are not required to provide additional sick leave if the employer has adopted a sick leave policy or time off policy that provides employees with an amount of leave which meets or exceeds the requirements of the new law, and satisfies the accrual, carryover, and use requirements of the new law.
Are there Exceptions to the Law for Employees Working Pursuant to a CBA?
Yes. Unions are permitted to negotiate terms and conditions of sick leave that are different from the requirements of the law. In addition, collective bargaining agreements entered into on or after September 30, 2020 may, in lieu of the sick leave required by the law, provide a comparable benefit for the employees covered by the CBA in the form of paid days off, as long as the paid days off are in the form of leave, compensation, or other employee benefits. Under both circumstances, the CBA must specifically acknowledge the provisions of the NY State sick leave law related to CBAs.
Does the Law Impose Recordkeeping Requirements?
Yes. In addition to other payroll records that employers must preserve, employers must also keep records of the amount of sick leave provided to each employee for at least six years.
Upon the oral or written request of an employee, an employer must provide a summary of the amounts of sick leave accrued and used by such employee in the current calendar year and/or any previous calendar year. Such information must be provided to the employee within three business days of the employee’s request.
Will the State Provide Additional Guidance?
The Commissioner of Labor has authority to adopt regulations and issue guidance on sick leave, which may include standards for accrual, use, payment, and employee eligibility.
When Does the Sick Leave Law go into Effect?
Employees begin accruing sick leave on the later of the commencement of employment or September 30, 2020. However, employees may not use sick leave until January 1, 2021.
How does the New Law Impact the New York City and Westchester County Sick and Safe Leave Laws?
The new law states that any paid sick leave benefits provided by a sick leave program enforced by a municipal corporation in effect as of September 30, 2020 shall not be diminished or limited by the enactment of the new state law. As a result, employers must continue to comply with relevant local sick and safe leave laws in addition to the new state law.
However, the Westchester Country Sick and Safe Leave laws state that the laws shall be null and void if statewide or federal legislation goes into effect that incorporates either the same or substantially similar provisions as are contained in the Westchester laws. The Westchester Board of Legislators must first determine through a resolution whether or not a statewide or federal law is sufficiently similar, such that the analogous Westchester laws no longer apply. As a result, while the NY State sick leave law may be sufficiently similar to the Westchester Sick and Safe Leave laws, employers are cautioned to continue to comply with the Westchester laws until the Westchester Board of Legislators resolves otherwise.
Employers should begin to review and revise their sick and safe leave policies for compliance with the new state-wide sick leave law. If you have any questions regarding compliance with the new law or require assistance amending your policies, please contact Amanda Baker at abaker@fglawllc.com, or any attorney at the Firm.
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