Effective September 30, 2020, New York joined the growing number of states with a state-wide paid sick leave law.[1]  Employees will begin accruing sick leave on September 30th, but will not be able to use any sick leave until January 1, 2021.

Employer Obligations

Employers are required to allow all employees to accrue sick leave in New York at a minimum rate of 1 hour for every 30 hours worked. Employers may elect to front load annual allotments at the beginning of the year.

The maximum accrual levels are tiered based on the number of employees and the net income of the employer.

  • Employers with at least 100 employees must provide 56 hours of paid sick leave.
  • Employers with between 5 and 99 employees must provide 40 hours of paid sick leave.
  • Employers with fewer than 5 employees and a net income in excess of $1 million in the previous tax year must provide 40 hours of paid sick leave.
  • Employers with fewer than 5 employees and a net income of less than $1 million in the previous tax year must provide 40 hours of unpaid sick leave.

Unfortunately, regulations have yet to be issued and the statute does not specify if the employer must count employees outside the state of New York when determining what category they fall into.

Under the law, sick leave may be used for the following reasons:

  • Employee’s mental or physical illness, or injury, or diagnosis, care, treatment, or preventive care for employee’s mental or physical illness or injury;
  • Covered family member’s mental or physical illness or injury or diagnosis, care, treatment, or preventive care for a covered family member’s mental or physical illness or injury;
  • Absences related to employee’s status as a victim of domestic violence, family offense, sexual offense, stalking, or human trafficking; or
  • Absences related to a covered family member’s status as a victim of domestic violence, family offense, sexual offense, stalking, or human trafficking.

The term “Family Member” is defined broadly to include an employee’s child (biological, adopted, or foster child, a legal ward, or a child of an employee standing in loco parentis), spouse, domestic partner, parent (biological, foster, step, adoptive, legal guardian, or person who stood in loco parentis when the employee was a minor child), sibling, grandchild, or grandparent; and the child or parent of an employee’s spouse or domestic partner.

Employees will be permitted to carry over unused sick leave into the following year, but may limit annual usage.  Employers with fewer than 100 employees may cap annual usage at 40 hours per year.  Employers with 100 or more employees may cap annual usage at 56 hours per year.

Employers do not have to pay out unused sick leave at the end of employment.

Employee Rights

Employees cannot be terminated for taking sick leave under the statute and they have the right to reinstatement upon return from a covered sick leave.

Employees may request that their employer provide a summary of the amount of sick leave they have accrued and used.  Employers will have to provide this information within three business days.

Employers cannot mandate an employee disclose any confidential information in verifying the need for sick leave.  This would include information relating to a mental or physical illness, injury or health condition of the employee or the employee’s family member or anything related to an employee’s need for safety leave, including domestic violence, a sexual offense, stalking, or human trafficking.

Usage

Employers can implement a reasonable minimum increment of time for usage, but this amount of time may not exceed four hours.

Employees will be paid at their regular rate of pay or minimum wage, whichever is greater.

Employers with Existing Policies and Intersection with Existing Law

Employers that already provide paid time off that meets or exceeds the new requirements will not have to provide additional leave. This is unlike the New York State COVID sick leave law, which requires that employers provide additional leave.  The employer’s policy, however, must satisfy the accrual, carryover and use requirements of the law.  Therefore, many policies might require some adjustments to be compliant.

The new law does not preempt New York City’s or Westchester County’s existing laws.

Additional Guidance

Although the law has already gone into effect, the New York State Department of Labor has yet to issue regulations.  We expect that these should be issued soon.

To Do

New York employers should review their existing sick leave and paid time off policies to make sure they are in compliance with the new statute.

As always, please contact us if you have any questions about this new law or would like your handbook updated.

[1] New York State passed a COVID sick leave law earlier this year.  The Federal Government also has a paid sick leave component related to COVID included in its Families First Coronavirus Relief Act (“FFCRA”) which will sunset at the end of the year and applies only to businesses with fewer than 500 employees.