On April 3, 2020, New York State Governor Andrew M. Cuomo signed into law the 2021 fiscal year budget that includes an unpaid and paid sick leave program for all New York employees. The permanent sick leave law comes a few weeks after the state enacted emergency sick leave provisions relating to the COVID-19 crisis.
The paid sick leave law becomes effective 180 days after enactment, i.e., September 30, 2020. However, while employees begin accruing sick leave on the effective date, employers may require employees to wait until January 1, 2021 to begin using their sick leave benefits.
Paid and Unpaid Sick Leave Provisions
The new bill amends New York State Labor Law Section 196-b to require every employer to provide its employees with sick leave as follows:
- Employers with four or fewer employees in any calendar year and a net income of one million or less in the previous tax year must provide each employee with up to 40 hours of unpaid sick leave in each calendar year.
- Employers with (a) 4 or fewer employees in any calendar year and a net income of greater than one million dollars in the previous tax year, or (b) between 5 and 99 employees in any calendar year, must provide each employee 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 at least 56 hours of paid sick leave in each calendar year.
An “employer” includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service. For purposes of calculating the number of employees, a “calendar year” is defined as the 12-month period from January 1 through December 31 of each year. For all other purposes, a calendar year can be either the 12-month period between January 1 and December 31, or a regular and consecutive 12-month period, as determined by the employer.
Accrual
Employees accrue one hour of sick leave for every 30 hours worked, beginning on the later of the first day of employment or the effective date of the sick leave law (September 30, 2020).
Employers are permitted to frontload all of the required unpaid or paid sick leave to their employees, so long as the employer does not retroactively reduce or revoke any amount of the sick leave based on the employee’s hours actually worked during the calendar year.
Sick Leave Use
Employees begin accruing sick leave benefits on September 30, 2020. However, employers may restrict the use of accrued sick leave until January 1, 2021. Employers may also set a reasonable minimum increment for the use of sick leave, not exceeding four hours.
Employees may use sick leave for the following purposes:
- For a mental or physical illness, injury, or health condition of an 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 that the employee requests leave;
- For 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, such employee or such employee’s family member; or
- For an absence from work due to any of the following reasons when the employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking:
- To obtain services 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 the employee’s 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 domestic 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.
A “family member” is defined as an employee’s child, spouse, domestic partner, parent, sibling, grandchild, grandparent, or child or parent of an employee’s spouse or domestic partner. A “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. A “child’ is defined as a biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.
Rate of Pay
Paid sick leave must be provided at the greater of the employee’s regular rate of pay for hours worked or the applicable minimum wage.
Carryover
An employee’s unused sick leave carries over to the following calendar year. The law is silent on how and whether frontloading an employee’s sick leave at the start of the calendar year affects the employer’s carryover obligations. However, employers may limit the use of sick leave as follows:
- An employer with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year.
- An employer with 100 or more employees may limit the use of sick leave to 56 hours per calendar year.
Employers are not required to pay an employee for unused sick leave upon the employee’s termination, resignation, retirement, or other separation from employment.
Confidentiality
Employers are prohibited from conditioning the use of paid sick leave on the disclosure of confidential information of an employee or an employee’s family member relating to an employee’s mental or physical illness, injury, or health condition, or relating to absence from work due to domestic violence, a sexual offense, stalking, or human trafficking.
Records
Employees may make an oral or written request for a summary of the amounts of sick leave accrued and used by the employee in the current and/or previous calendar year. Upon receiving the request, employers must provide the information to the employee within three business days.
Employers are also required to establish, maintain and preserve, for not less than six years, accurate payroll records showing the amount of sick leave provided to each employee, along with the other information required under Section 195 of the New York Labor Law.
No Retaliation
Employers are prohibited from discharging, threatening, penalizing, or in any other manner discriminating or retaliating against an employee because an employee exercises a right afforded under the paid sick leave law, including requesting and using sick leave.
Job Protection
Employees who take sick leave pursuant to the new sick leave law must be restored to the position of employment held prior to any sick leave taken, including with the same pay and other terms and conditions of employment.
No Preemption
The new sick leave law does not preempt already-existing local sick leave laws and permits cities with a population of one million or more to enact a local sick leave law or ordinance that meets or exceeds the requirements under the statewide law. Therefore, the provisions of Westchester County’s Paid Sick Time Ordinance and the New York City Earned Safe and Sick Time Act still apply.
Collective Bargaining Agreements
Employers and unions are permitted to enter into a new CBA, on or after September 30, 2020, that provides a comparable benefit for employees in the form of paid days off, so long as the paid days off come in the form of leave, compensation, or other employee benefits, or some combination of those.
The law does not address whether it supplants sick leave benefits provided under existing CBAs entered into before September 30, 2020.
If you have any questions regarding this Alert, please feel free to contact the Alert’s authors: Bran Noonan, bnoonan@fordharrison.com, and Mohammad Shihabi, mshihabi@fordharrison.com, attorneys in our New York City office. Of course, you may also contact the FordHarrison attorney with whom you usually work.
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