10/12/2020
New York State Enacts Paid Sick Leave
We have added the NY sick leave accrual and a NY Sick Leave report to all clients. If you have an existing time off policy please review to ensure it is compliant with the new regulation.
• New York State has enacted a sick leave law that, depending on their size, requires employers to provide between 40 and 56 hours of paid leave per year for reasons relating to the health of the employee or the employee’s family.
• Employers with fewer than five employees and an annual income under $1 million may satisfy the law’s leave requirement by providing unpaid leave of 40 hours annually.
• Employees begin accruing leave on September 30, 2020, but may not use the leave until January 1, 2021. Leave is accrued at the rate of one hour for every 30 hours worked; the law contains frontloading and carryover provisions.
• Employers with leave policies that equal or exceed the requirements of the sick leave law need not provide additional leave to their employees. The sick leave law does not affect municipal leave laws in effect on September 30, 2020, and cities with populations of at least 1 million may enact laws that meet or exceed the requirements of the new law.
• Employers must restore employees to their former positions when they return from leave, and employers are prohibited from retaliating against employees exercising their right to leave
Covered Employers
• All New York employers must provide sick leave to their employees. However, only employers with at least five employees or $1 million in annual net income must provide that leave as paid. Furthermore, the amount of leave required is determined by the employer’s size:
Employer Size Sick Leave Requirement
>Fewer than 5 employees Up to 40 unpaid hours annually
With annual net income of
$1 million or less
>Fewer than 5 employees Up to 40 paid hours annually
With annual net income over
$1 million
>5-99 employees Up to 40 paid hours annually
>100 or more employees Up to 56 paid hours annually
Accrual and Carryover
• Employees accrue one hour of sick leave for every 30 hours worked, beginning at the start of their employment or September 30, 2020, whichever is later.
• Employers may frontload the total amount of sick leave to employees at the beginning of the year, but they may not later reduce that amount based on the employee’s actual hours worked during the year.
• Employees may carry over unused sick leave to the following calendar year. For the purposes of accrual, use and carryover of leave, “calendar year” means the 12-month period from January 1 through December 31, or a regular and consecutive 12-month period, as determined by the employer.
Use of Sick Leave
Amount of Leave
• Employers with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year, and employers with 100 or more employees may limit the use of sick leave to 56 hours per calendar year.
• Employers may set a reasonable minimum increment for the use of sick leave, but it cannot be more than four hours.
Reasons for Leave
Employers must provide accrued sick leave for the following purposes related to health conditions:
o An employee’s or employee’s family member’s mental or physical
illness, injury or health condition (regardless of whether the illness, injury or health condition has been diagnosed or requires medical care at the time the employee requests leave); or
o The diagnosis, care or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventive care for, an employee or an employee's family member.
Employers must also provide accrued sick leave for any of the following reasons when the employee or employee's family member has been the victim of domestic violence (as defined by state law), a family offense, sexual offense, stalking or human trafficking:
o To obtain services from a domestic violence shelter, r**e crisis center or other services program;
o To participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee's family members;
o 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;
o To file a complaint or domestic incident report with law enforcement;
o To meet with a district attorney's office;
o To enroll children in a new school; or
o 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.
Confidentiality Rules
An employer may not require, as a condition of providing sick leave:
o The disclosure of confidential medical information
o Information relating to absence from work due to domestic violence, a sexual offense, stalking or human trafficking
Reinstatement
Employees returning to work after taking sick leave must have their position, pay, and terms and conditions of employment restored to what they were before the leave.
Retaliation
Employers are prohibited from discharging, threatening, penalizing, or otherwise discriminating or retaliating against any employee because the employee has exercised his or her right to request and use sick leave.
Compensation
• Employees using paid sick leave must be paid at their regular rate of pay or the applicable minimum wage under state law, whichever is greater.
• Employers are not required to pay employees for unused sick leave when their employment ends.
Alternate Leave Policies
• Employers with policies that meet or exceed the requirements of the sick leave law are not required to provide employees with additional leave.
• Collective bargaining agreements entered into on or after September 30, 2020, may provide comparable paid days off, in the form of leave, compensation, other employee benefits or a combination of the three, in place of leave required by the sick leave law. However, the agreement must acknowledge the sick leave law.
Recordkeeping
• Employers must provide a summary of the amounts of sick leave accrued and used in the current and previous calendar years by any employee who requests the information. The information must be provided within three business days.
• Employers must keep records for six years showing the weekly amount of sick leave provided to each employee.
Interaction with Local Leave Laws
• Cities with a population of at least one million may enact and enforce local laws meeting or exceeding the requirements of the sick leave law. In addition, municipal paid sick leave programs in effect as of September 30, 2020, are not affected by the sick leave law.
Questions or concerns please call us at 716-672-2990.
