Beginning in 2021, New York employees have a right to paid sick leave. Notably, this new law is NOT the same as New York’s quarantine/isolation leave law passed on March 18, 2020 in response to the COVID-19 pandemic.

New York Paid Sick Leave applies to ALL private-sector employees in New York State, regardless of industry, occupation, part-time status, and overtime exempt status. Federal, state, and local government employees are NOT covered; however, employees of charter schools, private schools, and not-for-profit corporations are covered.

The new requirements took effect (and covered employees can begin accruing leave) on September 30, 2020; but employees cannot use the leave until January 1, 2021.

The law requires:

  • employers with 0-4 employees and a net income less than $1 million to provide 40 hours of unpaid sick leave annually;
  • employers with 0-4 employees and a net income greater than $1 million and employers with 5-99 employees to provide 40 hours of paid sick leave annually; and
  • employers with 100 or more employees to provide 56 hours of paid sick leave annually.
Employees must accrue sick leave at a rate of at least one hour for every 30 hours worked. Alternatively, employers can provide the full amount of sick leave in a lump sum at the beginning of each year.

Employers can require employees to take sick leave in increments, but they may not set the minimum increment at more than four hours. Employees must be paid their normal rate of pay or the applicable minimum wage rate while on leave, whichever is greater.

Employees can carry unused sick leave into the next year; however, employers with less than 100 employees can limit the use of sick leave to 40 hours per year and employers with 100 or more employees can limit the use of sick leave to 56 hours per year. Employees are not entitled to a payout of unused sick leave upon their separation from or termination of employment.

New York’s new law allows sick leave for an employee or their family member’s:
  • mental or physical illness, injury, or health condition, regardless of whether that condition is diagnosed or requires medical care when the employee requests leave;
  • diagnosis, care, treatment, need for a medical diagnosis, or preventative care for a mental or physical illness, injury, or health condition; or
  • needs as the victim of domestic violence, a family or sexual offense, stalking, or human trafficking.
The last scenario includes absences to obtain services from a domestic violence shelter, rape crisis center, or other services program; participate in safety planning; temporarily or permanently relocate; meet with an attorney or participate in legal proceedings; file a complaint or domestic incident report with law enforcement; meet with a district attorney’s office; enroll children in a new school; or take other actions to increase the safety of the employee or his or her family members. A person who has committed the offenses described above and is not a victim is NOT eligible for leave, notwithstanding any family relationship.

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

“Child” is defined as a biological, adopted, or foster child, a legal ward, or a child of an employee standing in loco parentis.

Upon return from sick leave, employees must be restored to the same position they held before the leave with the same pay and terms of conditions.

Employers can provide paid or unpaid sick leave that that exceeds the new law’s requirements; however, they do not have to provide additional sick leave if their current policy gives employees an amount of leave that meets or exceeds the new law’s hourly requirements and satisfies the accrual, carryover, and use requirements.

In our experience, many employers currently provide a bank of paid time off that employees can use regardless of their purpose for taking leave. Because the guidance discussed above is vague, we recommend that our clients create a sick leave policy that is separate and apart from their general paid time off policy. As a result, employers may wish to reduce the amount of paid time off they offer employees for reasons not covered by NY’s Paid Sick Leave law.

Instead of providing sick leave as expressly set forth in the new law, unionized employees can enter into collective bargaining agreements (on or after September 30, 2020) that provide for comparable benefits in the form of leave, compensation, or other employee benefits (or some combination thereof), if the agreement specifically acknowledges the provisions of the new law.

Employers must keep contemporaneous records showing the amount of sick leave given to each employee and maintain these records for at least six years. The records must include the amount of sick leave accrued and used by each employee on a weekly basis. Upon an employee’s request, an employer must provide (within three business days) a summary of the employee’s accrued and used sick leave in the current and/or previous calendar year.

An employer cannot retaliate against an employee who exercises his or her rights to use sick leave. Employees must also be restored to the same position of employment when they return from sick leave. Employees who believe that they have been retaliated against for exercising their sick leave rights should contact the Department of Labor’s Anti-Retaliation Unit at 888-52-LABOR or LSAsk@labor.ny.gov.

For more information, visit the state’s Paid Sick Leave website.

If you have questions about the new law’s requirements or any other labor and employment-related issue, please contact us.

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