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Understanding the NYC Earned Sick Time Act (Not just for NYC companies)

Even if your company is not located in New York City but has employees who work in NYC, you need to read this!  The NYC Earned Sick Time Act, which went into effect on April 1, 2014, requires NYC employers with 5 employees or more to provide up to 40 hours of paid sick leave per calendar year.  Companies with fewer than 5 employees must provide 40 hours of unpaid sick leave per calendar year.  The law applies to all employees who work at least 80 hours per year in NYC, including full-time, part-time, and temporary employees.  NYC includes all 5 boroughs.

However, your company may already be in compliance with the law, if you currently offer at least 40 hours of paid time office provided your company’s existing policies comply with the new law (see end of this article for particulars).

NYC Earned Sick Time Act:

Earned sick leave begins accruing on the employee’s first day of employment and can be used after 120 days.  Beginning on April 1, 2014, or the first day of employment for those hired after that date, employees earn 1 hour of sick leave for every 30 hours worked, up to a maximum of 40 hours.  After 120 days, employees may begin to use accrued sick leave.

Does the accrual differ for exempt employees vs. non-exempt employees?

  1. For employees exempt from overtime who work 40 or more hours in a week, the employee accrues sick leave based upon a 40 hour work week.

  2. For employees who are non-exempt, sick leave accrues for all hours worked, including overtime hours.

Companies that are physically located outside of NYC, whose employees work in NYC are subject to this law.

Example: A company located in Nassau County that has an employee spending at least 80 hours of work time in NYC in a calendar year is covered by the law.  The employee accrues sick leave for the time spent working in NYC.

 For what reasons can employees use sick leave?

  1. The employee’s mental or physical illness, injury, or health condition;

  2. The employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition;

  3. The employee’s need for preventive medical care;

  4. Care of a family member who needs medical diagnosis, care, or treatment of an illness, injury, or health condition, or who needs preventive medical care;

  5. Who is a family member under the law?  A child, grandchild, spouse, domestic partner, parent, grandparent, child or parent of employee’s spouse or domestic partner; or sibling (half, adopted or step sibling).

  6. Closure of employee’s place of business due to a public health emergency (as declared by the Commission of the NYC Dept. of Health and Mental Hygiene or the Mayer);

  7. The employee’s need to care for a child whose school or child care provider is closed due to a public health emergency.

 What is a calendar year?

  1. This is defined by the employer and can be January through December, an anniversary, or fiscal year.

At the end of a calendar year up to 40 hours of sick leave can be carried over to the next calendar year.  However, an employer has the option to pay out the sick leave at the end of the calendar year, so long as that employee is given 40 hours of sick leave at the beginning of the next year.

Example:  An employee accrues 40 hours of sick leave in year 1, and only uses 10 hours of that time.  The employee will carry 30 hours of this accrued sick leave into year 2.  On the first day of year 2, the employee begins to accrue sick leave.  The total amount of sick leave available to each employee is capped at 40 hours per calendar year.

Employees must be paid their regular hourly rate at the time the sick leave is taken.

  1. If an employee is non-exempt, he or she must be paid sick leave at the employee’s regular hourly rate, which must meet or exceed the New York State $8.00 minimum wage.  Sick leave is not required to be counted as hours worked for purposes of calculating overtime.

  2. For tipped employees in the hospitality industry who are paid a reduced minimum wage and receive a tip credit, the employer must pay sick leave at the full New York State minimum wage.  For example, wait staff whose pay rate is $5.00 per hour must be paid $8.00 per hour for all paid sick leave taken or for that which is paid out.

 The law does not apply to employees covered by collective bargaining agreements if the CBA expressly waives the law’s provisions and provides a comparable benefit.

  1. In the case of employees covered by a valid CBA at the time of the law’s effective date, April 1, 2014, the law will take effect as of the termination of the CBA.

  2. The law does not apply to employees in the construction and grocery industries if the CBA expressly waives the law’s provisions.

However, your company may already be in compliance with the law if you currently offer at least 40 hours of paid sick leave. This law does not require additional time off if employees are already given at least 40 hours of paid time off per calendar year.  Existing policies can be restructured to come into compliance with the law.  Below are some of the particulars that you should consider in determining if you company’s existing policies comply with the new law:

  1. Employees must be able to take leave for the same reasons allowed in the law;

  2. Notices with required content must be provided to existing employees by May 1, 2014 and to new employees when they begin employment;

  3. Employers can only require employees to provide medical documentation of need for sick leave if the employee uses more than 3 consecutive workdays as sick leave;

  4. Employers may set a reasonable minimum increment for the use of sick leave, but no more than 4 hours per day;

  5. Records relating to sick leave must be maintained for at least 3 years, though other laws may require a longer period.

The requirements for compliance with the new law can be confusing, especially when trying to adjust existing policies to ensure compliance with the law.   A Human Resources professional must review your policies to make sure they comply with the NYC Earned Sick Time Act.  Please contact this office with any of your NYC Earned Sick Time Act or related questions.

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Portnoy, Messinger, Pearl & Associates (PMP) is proud to be celebrating 50 years of providing employers with full service HR consulting. The company was founded in 1964 by Murray Portnoy, who used his experience as a union organizer and workers’ rights advocate to help PMP offer a unique perspective as advocates for management. PMP provides human resources and labor relations consulting to a broad spectrum of clients in the public and private sector, union and non-union, and to small local businesses, as well as to multinational Fortune 500 companies.

BRIAN J. SHENKER, ESQ., is a labor and employment attorney who represents employers in all labor and employment matters.  His experience encompasses a wide range of matters in the employer-employee relationship, including wage and hour compliance, discrimination, retaliation, wrongful termination, breach of employment agreements, restrictive covenants, family and medical leave, independent contractor classifications, labor relations, employment policies, health and safety, non-competition and confidentiality agreements.  Mr. Shenker has also represented management in a variety of labor relations matters, including unfair labor practices and union organizing efforts.

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