New York State is among the ever-growing list of states and localities mandating that employers provide paid sick leave to employees.
Passed in April 2020, the New York State Labor Law was amended to require all employers, regardless of size, to provide annual sick leave to their employees. The statewide sick leave law applies to all employers with employees in the state. The law goes into effect on September 30, 2020 when employers must allow employees to start accruing paid sick leave, but employers are not obligated to allow use of sick leave until January 1, 2021.
The law requires:
Employers with 4 or fewer employees: must provide 1 hour of unpaid sick leave for every 30 hours worked, up to 40 hours of unpaid sick leave annually. However, if such an employer has net income of more than $1 million in the previous year, the leave must be paid.
Employers with between 5 and 99 employees: must provide 1 hour of paid sick leave for every 30 hours worked, up to 40 hours of paid sick leave annually.
Employers with 100 or more employees: must provide 1 hour of paid sick leave for every 30 hours worked, up to 56 hours of paid sick leave annually.
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. For the purpose of using and accruing paid or unpaid 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.
For purposes of the law, sick leave is defined broadly to include not only traditional sick leave usage, but also for reasons known as safe leave. The leave provided by the law is available for the following purposes:
For a mental or physical illness, injury or health condition of an employee or an employee’s family member, regardless of whether that condition has been diagnosed or requires medical care at the time 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 preventative care for, an employee or an employee’s family member; and
For certain absences from work due to domestic violence, a family offense, sexual offense, stalking, or human trafficking, of an employee or an employee’s family member.
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.
Employers may set a minimum increment for use of sick leave, which cannot exceed four hours. Unused sick leave must be carried over to the next calendar year, but employers may limit the amount of sick leave that may be used in a calendar year to 40 hours (employers with fewer than 100 employees) and 56 hours (employers with 100 or more employees). Additionally, employers are not required to pay an employee for unused sick leave upon their separation of employment.
Employers who intend to rely on their existing sick leave or paid time off policy should review their current policy to ensure it meets or exceeds all of the requirements of the new law.
Currently, there are only two jurisdictions in New York that have passed sick leave laws: New York City (with the New York City Earned Safe and Sick Time Act), and Westchester County (with the Westchester County Earned Sick Leave Law and Safe Time Leave Law). This new statewide law states that it does not preempt or diminish existing city- or county-level paid sick leave laws. As such, employers in New York City and Westchester must continue to provide employees with leave that meets or exceeds the requirements of both the statewide and local laws.
The New York Department of Labor is expected to issue additional regulations and guidance prior to the effective date of the law.