On April 3, 2020, Governor Cuomo signed into law New York State’s fiscal year 2021 budget, which adds a new section 196-b to the New York Labor Law to include sick leave requirements for New York employers of all sizes, and which the Governor’s office has described as the strongest paid sick leave law in the nation. Although employees may not begin to use sick leave under the new law until January 1, 2021, current employees begin to accrue leave on September 30, 2020. (As discussed in our prior blog, the State also recently passed a COVID-19 sick leave law that provides leave for New York employees who are subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19.)
Key provisions of the new law are summarized below.
Amount and Accrual of Sick Leave
The amount of sick leave an employer must provide employees, and whether such leave must be paid, depends on an employer’s size, and for certain employers, income level.
- Employers with four or fewer employees in any calendar year must provide employees with up to 40 hours of unpaid sick leave in any calendar year; except that if such an employer has a net income of greater than $1,000,000 in the previous tax year, the leave must be paid.
- Employers with 99 or fewer employers in any calendar year must provide employees with up to 40 hours of paid sick leave in each calendar year.
- Employers with 100 or more employees in any calendar year must provide employees with up to 56 hours of paid sick leave in any calendar year.
Although employers may choose any consecutive 12-month period for purposes of accrual and use of leave, they must use the calendar year of January 1 through December 31 to determine the number of employees in any given year.
Current employees begin to accrue leave under the new law on September 30, 2020. New employees begin to accrue leave on their first day of employment. Employees must accrue sick time at a rate of at least 1 hour per 30 hours worked. Employers are permitted to front-load the yearly minimum hours of sick leave to employees at the beginning of the calendar year or on the employee’s first day of work; however, if an employer chooses to do so, the employer must front-load the entire 40 or 56 hours of leave, regardless of when in the calendar year the employee begins working. The law does not appear to allow for front-loading hours in a pro-rated amount.
Employers are permitted to set a reasonable minimum increment for sick time use, which is not to exceed four hours.
Carryover and Payment for Covered Sick Leave
Although an employee is permitted to carry over unused sick time into the following calendar year, employers may limit the use of paid sick leave in any calendar year to the number of hours the employer is required to provide under the law as follows: (1) an employer with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year; and (2) an employer with 100 or more employees may limit the use of sick leave to 56 hours per year.
An employer is not required to provide additional sick leave under the law if the employer has a sick leave or paid time off policy that provides employees with an amount of leave that meets or exceeds the new law’s requirements and satisfies the accrual, carryover, and use of leave requirements.
Eligible employees must be paid at their regular rate of pay for sick time. If the applicable minimum wage is greater than the employee’s regular rate of pay, the employee must be paid the applicable minimum wage. Employers are not required under the law to pay employees for unused sick time upon separation from employment.
Beginning on January 1, 2021, New York employers must allow employees to use accrued sick time for the following reasons:
- Mental or physical illness, injury, or health condition of the employee or the employee’s family member (regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time the employee requests leave);
- The diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of, or the need for a medical diagnosis of, or preventive care for the employee or the employee’s family member; or
- Absence from work when the employee or employee’s family member has been the victim of domestic violence, a family offense, a sexual offense, stalking, or human trafficking. Permitted reasons for use of leave under this portion of the law include leave to: obtain services from a domestic violence shelter, rape crisis center, or other services program; participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or the employee’s family members; 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; file a complaint or domestic incident report with law enforcement; to meet with a district attorney’s office; enroll children in a new school; or 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 broadly in the law to include an employee’s child (whether biological, adopted or foster child, legal ward, or a child of an employee standing in loco parentis), spouse, domestic partner, parent (including biological, foster, step-parent, or adoptive, a legal guardian, or a person who stood in loco parentis when the employee was a minor), sibling, grandchild, or grandparent; and the child or parent of an employee’s spouse or domestic partner.
Employees are permitted to request sick leave verbally or in writing and the law specifically prohibits employers from requiring disclosure of confidential information related to the employee’s or the employee’s family member as a condition of providing sick leave.
Recordkeeping Requirements Imposed on Employers
The new law requires that employers maintain records that show the amount of sick leave provided to each employee for six years. Employers are also required to provide employees with a summary of the amount of sick leave earned and used in both the current and previous calendar years within three business days of an employee’s verbal or written request for such an accounting.
Other Important Points
- Upon an employee’s return after covered sick leave, the employee must be restored to the employee’s prior position with the same pay and terms and conditions of employment.
- Employers, including agents of the employer, or any officer or agent of any corporation, partnership, or limited liability company, are prohibited from discharging, threatening, penalizing, or in any other manner discriminating or retaliating against any employee for exercising the employee’s rights under the new law.
- The law provides that cities with populations of 1,000,000 or more are free to enact their own laws or ordinances that either meet or exceed the requirements of the State law. In addition, any paid sick leave benefits under a sick leave program enforced by a municipal corporation shall not be limited as a result of the new State law. Accordingly, employers must ensure compliance with State and any applicable local sick leave laws, such as New York City’s existing sick and safe leave law.
Although concerns surrounding COVID-19 and its impact on the health and safety of employees, as well as the viability of businesses moving forward is on the forefront of all of our minds right now, New York employers should be aware of these changes to the paid sick law, and proactively update their policies to ensure full compliance when the law takes effect. If you have any questions regarding this blog, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.