New York State’s recently enacted paid sick leave law requires all private New York employers to provide their employees with paid (or unpaid) sick leave in varying amounts. The law takes effect on September 30, 2020, and employees begin accruing leave on this date, but employers are not obligated to allow employees to use accrued leave until January 1, 2021. Employers must ensure that their paid time off policies incorporate the requirements of this new law and allow employees to take all the sick leave to which they are entitled.
Businesses who are already complying with existing paid sick leave laws in New York City and Westchester County need to ensure that their policies comply with the new state-wide law and that their employees receive the more generous benefits under both laws.
Below is a summary of the key information business owners need to know.
Employers should begin to review/update their existing sick leave policies to ensure compliance with the new law’s requirements. We will continue to monitor developments pertaining to the law and provide updates on the law’s requirements or implementation as more information becomes available.
How Much Leave Needs to Be Provided? Is Leave Paid or Unpaid?
| Number of Employees in any Calendar Year (January 1 through December 31) | Income Qualifier | Number of Hours of Paid Sick Leave Provided Per Calendar* Year | Is the Leave Paid or Unpaid? | Annual Use May Be Capped At: |
|
1-4 |
Up to $1 Million Net Income in Previous Tax Year
|
Up to 40 hrs |
Unpaid |
40 hrs |
|
1-4
|
Greater than $1 Million Net Income in Previous Tax Year |
Up to 40 hrs |
Paid |
40 hrs |
|
5-99 |
none |
Up to 40 hrs |
Paid
|
40 hrs |
|
100+
|
none |
Up to 56 hrs |
Paid |
56 hrs |
*For purposes of determining employee headcount, a calendar year is defined as the 12-month period from January 1 to December 31. For all other purposes, such as using and accruing paid or unpaid leave under the law, a calendar year means either the 12-month period from January 1 to December 31, or a regular and consecutive twelve-month period (e.g. anniversary year etc.), as determined by an employer.
Accrual, Carry Over, and Cap on Usage
- Employees begin to accrue sick leave at the start of employment or on September 30, 2020, whichever is later, at a rate of no less than one (1) hour for every 30 hours worked.
- Employees must be allowed to carry over any unused sick leave at year’s-end, but employers may cap use of sick leave to either 40 hours or 56 hours, depending on size/income. (See above chart.)
- Any unused hours that are carried over into a new year may be used at the start of the new year, without waiting for new time to accrue.
Qualifying Reasons for Use of Leave
An employer must provide sick leave for the following purposes:
- A mental or physical illness, injury, or health condition of an employee or a family member of the employee (as defined by the law);
- The diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of, or need for medical diagnosis of, or preventive care for, an employee or an employee’s family member; or
- An absence from work because the employee or a family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking.
Effect on Existing Sick Leave/PTO Policies
- Employers with existing paid sick leave or time off policies will not be required to provide additional sick leave if their policies meet or exceed the requirements of the new law, including the amount of leave, accrual, carryover, and usage. Businesses are advised to consult with counsel to ensure their existing paid time off policies are updated and compliant.
- “Front-loading” the full amount of paid sick time (providing the block of hours at the start of a year) is permissible if the policy otherwise complies with the law. An employer that front loads leave cannot later reduce the amount of paid sick time (for example, if an employee does not end up working enough hours to have accrued a full amount of leave). We are keeping our eye on any further information and/or clarification from the State, including regarding the requirement to carryover leave where the time is frontloaded. As it stands now, the law does not provide an exception to the carry over requirement where leave is frontloaded.
Interaction with Local Paid Sick Leave Laws
- As noted above, the new law explicitly does not diminish/restrict any local paid sick leave laws. Thus, employers who are subject to other local requirements including under New York City’s Earned Safe and Sick Time Act and/or Westchester County’s Earn Sick Leave Law must ensure their policies comply with all applicable laws.
Other Obligations
- Job Protection: Upon returning from sick leave, an employee must be reinstated to the employee’s former position, with equivalent pay and other terms and conditions of employment.
- Record Keeping: Employers must retain records of employee sick leave for at least six (6) years.
- Confidentiality: The law prohibits employers from requiring an employee to disclose confidential information regarding the nature of any medical condition or of any domestic violence/sexual offense matter requiring the use of sick leave. It does not specify whether a doctor’s note may be requested/required (which is permitted under certain other laws/leave situations).
If you have any questions about this topic, please contact the authors Devora L. Lindeman, Jasmin Farhangian and Keli Liu, or your personal Greenwald Doherty attorney contact.
