On April 3, 2020, New York State Governor Cuomo signed a bill that requires all New York employers to provide paid or unpaid sick leave to their employees. The bill takes effect 180 days after the budget passed, on September 30, 2020, and employers should be sure that they have policies and procedures in place to comply with the law.
The law requires the following:
Employer Size: 4 or fewer employees
Employee Leave Entitlement: In any calendar year and a net income of less than $1 million in the previous tax year. At least 40 hours of unpaid sick leave in each calendar year.
Employer Size: 4 or fewer employees
Employee Leave Entitlement: In any calendar year and a net income of greater than $1 million in the previous tax year. At least 40 hours of paid sick leave in each calendar year.
Employer Size: Between 5 and 99 employees in any calendar year
Employee Leave Entitlement: At least 40 hours of paid sick leave in each calendar year.
Employer Size: 100 or more employees in any calendar year.
Employee Leave Entitlement: At least 56 hours of paid sick leave in each calendar year
To determine an employer’s size under the law, a calendar year is defined as the 12-month period from January 1 to December 31.
Accrual and Carryover and Use
Employees may begin accruing sick leave on September 30, 2020, or when employment begins, whichever is later. After January 1, 2021, the law permits employees to use sick leave immediately upon accrual. Employees shall accrue sick leave at a rate of one hour for every 30 hours worked. For the purpose of using, accruing paid or unpaid leave, and carrying over of leave under the law, a calendar year means the 12-month period from January 1 through December 31, or a regular and consecutive 12-month period, as determined by an employer.
The law however, permits employers to frontload the total amount sick leave at the beginning of the calendar year, but employers may not later reduce the available amount of sick leave based on the number of hours actually worked by the employee.
Under the law, unused but accrued sick leave must also be carried over from year to year, however employers are not required to allow employees to use more sick leave than the accrual limits (40 hours for employers with fewer than 100 employees or 56 hours for employers with 100 or more employees).
Employers may also set a reasonable minimum increment for the use of sick leave, but that incremental use cannot exceed four hours. Employees utilizing sick leave must be returned to the same position they held immediately prior to the use of sick leave with the same pay and other terms and conditions of employment.
Pay Rate Requirements
Employees must be paid at their regular rate of pay and employers are not required to payout unused sick leave upon termination.
Employers are required to notify employees about their sick leave policies in writing and employers must also provide a summary of the amounts of sick leave accrued and used in any calendar year within three (3) business days of an employee’s request. Employers must retain records of leave accrual and usage for each employee for at least six (6) years.
Alternate Leave Policies
Employers need not provide additional sick leave if the employer’s existing paid sick leave policy or PTO policy meets or exceeds the law’s requirements for the amount of leave, use of leave, accrual, and carryover.
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 in a combination of all three, in place of leave required by the sick leave law however the agreement must expressly acknowledge the requirements of the sick leave law.
Permitted uses of paid sick leave
· An employee’s or employee’s family member’s mental or physical illness, injury, or health condition, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that the employee requests the sick leave;
· The employee’s or employee’s family member’s diagnosis, care, or treatment of a mental or physical illness, injury or health condition, or for preventive care; or
· 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:
o to obtain services from a domestic violence shelter, rape crisis center, or other services program;
o to participate in safety planning, to relocate temporarily or permanently, or to 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.
The law defines family member 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 biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.
What should employers do now?
All New York employers should review their existing sick leave or PTO programs to determine whether the existing policy complies with the new law.
The New York State Department of Labor is expected to issue additional regulations and guidance prior to the effective date of the law. If you have any questions regarding this new law, please reach out to PMP.