On April 3, 2020, New York State Governor Andrew Cuomo signed the fiscal year 2021 New York State budget that amends the New York Labor Law to require all New York employers to provide paid or unpaid sick time to their employees.  The new sick time law will take effect on September 30, 2020, but employees may not begin using accrued sick time until January 1, 2021.

Amount of Sick Time Available

The amount of sick time an employer must provide, and whether it is paid or unpaid, is dependent upon the employer’s size and net income.

  • Employers with four (4) or fewer employees in any calendar year and a net income of less than $1 million in the prior tax year must provide employees with forty (40) hours of unpaid sick time per year.
  • Employers with four (4) or fewer employees in any calendar year and a net income of greater than $1 million in the prior tax year and employers with between five (5) and ninety-nine (99) employees in any calendar year must provide employees with up to forty (40) hours of paid sick time per year.
  • Employers with one hundred (100) or more employees in any calendar year must provide up to fifty-six (56) hours of paid sick time per year.

Accrual, Carry Over, and Use Requirements

Employees may begin accruing sick time on September 30, 2020 under the new law, but are not entitled to use such sick time until January 1, 2021.  Employees must accrue one (1) hour of sick time for every thirty (30) hours worked.  Instead of adopting this accrual method, an employer may “frontload” sick time by providing the full amount of sick time to employees at the beginning of the year.  Employers may also set a reasonable minimum daily increment for the use of sick time of no greater than four (4) hours.

Employers must also allow employees to carry over unused accrued sick time into the following year, but an employer with fewer than one hundred (100) employees may limit the total use of sick time to forty (40) hours per year and employers with one hundred (100) or more employees may limit the total use of sick time to fifty-six (56) hours per year.

Significantly, employees who use sick time must be restored to the same position they held immediately prior to the use of sick time with the same pay and other terms and conditions of employment.

Covered Reasons for Using Sick Time

Under the new law, sick time may be used for:

  • An employee’s or employee’s family member’s mental or physical illness, injury, or health condition, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that the employee requests the sick leave;
  • The employee’s or employee’s family member’s diagnosis, care, or treatment of a mental or physical illness, injury or health condition, or for preventative care; or
  • An absence from work due to any of the following reasons when the 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, to relocate temporarily or permanently, 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 a new school; or
    • To take any 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.

A “family member” is defined as an employee’s child (including foster child, legal ward, or equivalent legal relationship), spouse, domestic partner, parent (including a step- or foster parent, legal guardian, or equivalent legal relationship), sibling, grandchild, or grandparent, or the child or parent of an employee’s spouse or domestic partner.

Recordkeeping Requirements

Employers will be required to keep contemporaneous records reflecting the amount of sick time provided to employees for a minimum of six (6) years.  The law specifically provides that employees may request, verbally or in writing, the amount of sick time they have accrued and used in the current or any previous calendar year.  Employers must respond to such request within three (3) business days.

Interplay with Existing Leave Policies, Collective Bargaining Agreements, and Local Leave Laws

Employers are not required to provide additional leave to employees under this law, so long as they previously implemented a sick time or paid time off policy that provides employees with the same or greater amount of leave as required by this new law and which otherwise satisfies the law’s use, accrual, and carryover requirements.

Further, an employer is not required to provide additional sick time benefits to unionized employees if the applicable collective bargaining agreement (“CBA”) entered into on or after September 30, 2020 provides for comparable benefits (either in the form of leave, compensation, other employee benefits, or some combination thereof) and the CBA “specifically acknowledge[s]” the requirements of the law.

Significantly, the new law does not preempt or diminish existing local paid sick leave laws.  As a result, employers covered by the New York City Earned Safe and Sick Time Act or the Westchester County Earned Sick Leave Law must still comply with the provisions of the applicable law.

New York employers should review their sick time or general paid time off policies to ensure compliance with the new law.  The New York State Department of Labor will likely issue regulations and guidance on the new law, which we will continue to monitor.