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New York State’s New Paid Sick Leave Law Takes Effect September 30, 2020

 


On April 3, 2020, Governor Cuomo signed New York State’s new paid sick leave law. The law adds Section 196-b to the Labor Law and applies to all private employers in New York State. The amount of required leave depends on the size of an employer’s workforce and net income. If an employer’s existing sick leave or time-off policies meet the minimum requirements (including accrual, carryover, and use) under the New York State paid sick leave law, no additional sick leave needs to be provided. Employees must begin accruing sick leave on September 30, 2020 and can start taking sick leave on January 1, 2021.

Amount of Sick Leave

The amount of leave that must be provided varies based on the size of the employer’s workforce in any calendar year and, in some cases, the amount of net income in the previous tax year:

  • Employers with 100 or more employees must provide up to 56 hours of paid sick leave in each calendar year.
  • Employers with between five and 99 employees must provide up to 40 hours of paid sick leave in each calendar year.
  • Employers with four or fewer employees and a net income greater than $1 million in the previous tax year must provide up to 40 hours of paid sick leave in each calendar year.
  • Employers with four or fewer employee and a net income of less than $1 million in the previous tax year must provide up to 40 hours of unpaid sick leave in each calendar year.

New employees who are hired after September 30, 2020 begin accruing paid sick leave at the start of their employment. Employers who enter into collective bargaining agreements on or after the date of this law must provide benefits comparable with the law.

Accrual and Frontloading

Sick leave must accrue at the rate of one hour per 30 hours worked, however, an employer may choose to frontload the entire amount of leave on January 1st of each year. If an employer chooses to frontload the sick leave amount, the employer cannot reduce or revoke any such sick leave based on the number of hours actually worked by the employee during the calendar year. For employers choosing to allow employees to accrue sick leave based on time worked, accrued sick leave must be tracked as of September 30, 2020.

Carryover and Minimum Increments for Use

Any unused sick leave remaining in a calendar year must be carried over to the subsequent year. However, employers with less than 100 employees may limit an employee’s use of sick leave to 40 hours in a calendar year and employers with more than 100 employees may limit use to 56 hours per calendar year. Employers can set minimum increments for use of leave time not to exceed four hours.

Permitted Use of Sick Leave

         Employees may use the paid sick leave for any of the following reasons:

  • A mental or physical illness, injury or health condition of the employee or a family member, regardless of whether such illness, injury or condition has been diagnosed or requires medical care at the time that

leave is requested;

  • The diagnosis, care, or treatment of a mental or physical illness, injury or heath condition of, or the need for medical diagnosis of, or preventive care for, the employee or employee’s family member; or,
  • An absence from work when an employee or an employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking or human trafficking for any of the following reasons and seeks or obtains services, including:
  • To obtain service from a domestic violence shelter, rape crisis center, or other services program;
  • To participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or their 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 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.

“Family Member” is defined as an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent or the child or parent of an employee’s spouse or domestic partner.

“Parent” is defined as a biological, foster, step- or adoptive parent, or a legal guardian of an employee, or a person who stood in loco parentis when the employee was a minor child. Additionally, “child” is defined as a biological, adopted or foster child, a legal ward or a child of an employee standing in loco parentis.

Documentation

An employer may not require, as a condition of providing leave, information relating to the mental or physical condition of the employee or family member, or information relating to absence from work due to domestic violence, a sexual offense, stalking or human trafficking.

Upon request of the employee, the employer is required to provide the amount of sick leave accrued and used within three days of the employee’s request. The employer is required to maintain the amount of sick leave provided to the employee and maintain the information with payroll records for six years. Employers are not required to pay out unused sick time upon voluntary or involuntary separation of employment.

Job Protection

An employee must be restored to his or her position with the same pay and terms and conditions of employment upon return from leave; and an employer may not retaliate or discriminate against or otherwise penalize an employee for requesting or taking leave.

Interaction with NYC and Westchester County Sick Leave Laws

Employers in New York City covered by the New York City Earned Safe and Sick Time Act (“ESSTA”) and those covered by Westchester County’s Earned Sick Leave Law (“ESLL”) must ensure that employees receive the most generous benefits. The ESSTA requires employers with five or more employees to provide up to 40 hours of paid sick and safe time and employers with fewer than five employees to provide up to 40 hours of unpaid safe and sick time. The ESLL requires employers to provide up to 40 hours of paid sick time for employers with five or more employees and up to 40 hours of unpaid sick time to employers with fewer than five employees, while the County’s Safe Time Law requires up to 40 additional hours for safe leave. Both ESSTA and ESLL apply only if the employee has worked for 80 hours, have different limitations on when new employees may begin to use sick leave (120 and 90 days, respectively), and offer expanded reasons for use.

Key Differences Between the NYS Paid Sick Leave Law and the New York City ESSTA

There are several key differences between New York State’s new paid sick leave law and the NYC ESSTA including:

  • Employers with 100 or more employees: New York State law now requires that such employers provide 56 hours of paid sick leave in each calendar year, while New York City law only requires up to 40 hours of paid sick leave in each calendar year.
  • Definition of “Family”: The ESSTA’s definition of “family” is broader than the definition in the New York State law and includes any other individual related by blood to the employee and any other individual whose close association with the employee is the equivalent of a family relationship.
  • Record-Keeping: Under New York State law, employers are required to maintain records of the amount of sick leave provided to each employee for no less than six years, which is an increase from the ESSTA’s requirement of no less than three years.
  • Notice: New York State’s new legislation is silent on the issue of whether employees must provide notice for sick leave. The ESSTA, on the other hand, allows employers to require up to seven days’ advance notice for the

foreseeable use of safe time and sick time and notice as soon as is practicable if use is unforeseeable.

  • Documentation: New York State’s new law prohibits employers from requiring disclosure of confidential information as a condition of providing sick leave but is silent as to whether employers may request any documentation regarding the use of sick and safe time. By contrast, the ESSTA allows employers to require supporting documentation for the use of sick time and safe time extending beyond three consecutive workdays.

Next Steps for New York Employers

New York State employers should determine whether modifications need to be made to existing policies and employee handbooks to comply with the New York State paid sick leave law. It is anticipated that the New York State Department of Labor will adopt regulations or issue guidance prior to September 30, 2020 in order to effectuate the new law. We will continue to monitor the status and update this memorandum in the event of such developments.

If you have any questions regarding these developments, please do not hesitate to contact David R. Rothfeld, Lois M. Traub, Alexander Soric, Jennifer Schmalz, Robert L. Sacks, Jaclyn Ruocco, Joseph Tangredi, or Brian D. Polivy.

 


This memo is provided for informational purposes only. It is not intended as legal advice and readers should consult counsel to discuss how these matters relate to their individual circumstances.

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