New York State Paid Sick Leave Law
As we previously reported, New York State passed the New York State Sick Leave Law (“NYSSL”), which went into effect on September 30, 2020. While some New York localities, such as New York City and Westchester County, have their own sick leave laws, the NYSSL will apply state-wide. In sum, the NYSSL requires all private employers in the State to provide workers with sick leave benefits of forty (40) to fifty-six (56) hours per year depending on the employer’s size.
Paid sick leave under the NYSSL can be used for any of the following reasons:
- An employee’s mental or physical illness, health condition or injury, or diagnosis, care, treatment or preventive care for an employee’s mental or physical illness, health condition or injury;
- A covered family member’s mental or physical illness, health condition or injury, or diagnosis, care, treatment or preventive care for a covered family member’s mental or physical or injury;
- Absences related to an employee’s status as a victim of domestic violence, a family offense, sexual offense, stalking or human trafficking; or
- Absences related to a covered family member’s status as a victim of domestic violence, a family offense, sexual offense, stalking or human trafficking.
Under the NYSSL, “family member” is defined as an employee’s child, spouse, domestic partner, parent, sibling, grandchild, or grandparent, as well as the child or parent of an employee’s spouse or domestic partner.
NYSSL sick leave accrues at the rate of one (1) hour for every thirty (30) hours worked. The amounts to be provided to employees vary as follows based on the size of the company:
- 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.
- 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 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 may set a minimum increment of time for which sick leave may be used as long as the minimum increment is no less than four (4) hours. The NYSSL requires that unused sick leave must be carried over from year to year, but employers may limit the leave usage to forty (40) or fifty-six (56) hours depending on their size. Employers are not required to pay employees their unused accrued sick leave on termination. The law also provides employees with a right to reinstatement following their use of sick leave and prohibits retaliation for exercising rights under the NYSSL.
Unlike the New York City Paid Sick and Safe Leave Law (“NYCSSL), which allows employers to require that employees submit documentation after three (3) consecutive days of sick/safe leave, the NYSSL does not directly address whether an employer may ask an employee to submit documentation to support their need for sick leave. The NYSSL provides that employers “may not require the disclosure of confidential information relating to a mental or physical illness, injury, or health condition” of an employee or covered family member or “information relating to absence from work due to domestic violence, a sexual offense, stalking, or human trafficking” as a condition to using sick leave. Due to this ambiguity and until the law is clarified by the New York Department of Labor (“NYDOL”), employers should be wary in collecting documentation from employees to support their need for sick leave and only solicit general information from such employees.
Although the NYSSL goes into effect September 30, 2020, employees cannot actually use the sick time until January 1, 2021. Employers who use the accrual method must begin to track the accrual of paid sick time under the NYSSL as of September 30, 2020. Employers also have the option to “front load” sick time at the beginning of each calendar year.
Amendments to the New York City Paid Safe and Sick Leave Law
On September 28, 2020, Mayor de Blasio amended the NYCSSL to conform with the NYSSL (the “Amendments”). The Amendments make the following material changes, which have the practical effect of expanding the law to cover more workers:
- The Amendments adopt the same accrual amounts of sick/safe leave based on employer size as provided by the NYSSL.
- The Amendments align the circumstances under which an employee may use sick/safe leave under the NYCSSL and the NYSSL (including leave taken for “domestic violence” purposes).
- The Amendments eliminate the prior requirement that an employee must work eighty (80) hours within New York City to be eligible for sick/safe leave, revise the definition of “domestic worker” and terminate the option to impose a 120 waiting period to use accrued sick/safe leave.
- The Amendments require employers to reimburse employees for fees/costs/expenses for obtaining supporting documentation to use sick/safe leave.
- The Amendments require employers to list on employee pay statements (or in a separate writing to be provided to employees each pay period) the amount of sick/safe leave accrued and used and the total balance of accrued leave.
New York City employers are required to provide notice of the Amendments to existing employees by October 30, 2020 and must also post the notice in a conspicuous place and provide the notice to all new hires.
ALL New York employers are strongly advised to prepare or review their sick or paid time off (“PTO”) policies to ensure compliance with these laws.