All Employers Must Provide Time Under New York Sick Leave Law

One of the components of New York state’s 2020-21 budget: every employer will be required to provide their employees with sick leave. This employer obligation is part of a large budget bill, SB 7506B, signed by Gov. Andrew Cuomo on April 3, 2020. Employees can start accruing leave Sept. 30, 2020 and must be allowed to start using provided leave by Jan. 1, 2021.

Employer coverage and required sick leave amounts

The amount of required leave that an employer must provide is determined by the number of employees and net income of the business.

• Employers with four or fewer employees in any calendar year and a net income of $1 million or less are required to provide employees with up to 40 hours of unpaid sick leave.
• Employers with four or fewer employees in any calendar year and that have a net income of greater than $1 million dollars in the previous tax year are required to provide employees with up to 40 hours of paid sick leave.
• Employers with between five and 99 employees in any calendar year are required to provide employees with up to 40 hours of paid sick leave each calendar year.
• Employers with 100 or more employees in any calendar year are required to provide employees with up to 56 hours of paid sick leave each calendar year.

Nothing in this law prevents an employer from providing more sick leave, paid or unpaid, in excess of what is required as part of the paid sick leave law. However, once it’s provided, employers can’t reduce or revoke sick leave based on the number of hours the employee actually works during the calendar year. Additionally, if you already provide your employees with sick leave that meets or exceeds the requirements and satisfies the accrual, carryover, and reasons for use defined below – then you’re likely in good shape.

The law clarifies that a calendar year will be defined as the 12-month period from Jan. 1 to Dec. 31.

For all other purposes, such as usage and accrual, a year is defined as above or as a regular and consecutive 12-month period, as determined by the employer.

Sick Leave Accrual Rate

Employees must accrue sick leave at a rate of not less than one hour per every 30 hours worked, beginning at the start of their employment or by Sept. 30, 2020, whichever is later. Employers have the option to provide the full amount of sick leave in a lump sum at the beginning of the calendar year.

Usage

Employers are not required to allow the use of accrued sick leave until Jan. 1, 2021. However, upon the aforementioned date, employees can request, verbally or in writing, to use accrued sick leave for the following purposes:

• A mental or physical illness, injury, or health condition of the employee or the employee's family member, regardless of whether the illness, injury, or health condition has been diagnosed or requires medical care at the time that the employee requests such leave
• 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
• 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*:

(a) To obtain services from a domestic violence shelter, rape crisis center, or other services program

(b) To participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee's family members

(c) 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

(d) To file a complaint or domestic incident report with law enforcement

(e) To meet with a district attorney's office

(f) To enroll children in a new school

(g) 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.

*Someone who has committed domestic violence, a family offense, a sexual offense, stalking, or human trafficking is not eligible for leave.

The minimum increment for the use of sick leave an employer can establish cannot be more than four hours, and employees need to be paid at their regular rate of pay or the applicable minimum wage, whichever is greater, for the use of paid sick leave.

When an employee returns to work from sick leave, the employee needs to be restored to the position they held prior to taking the sick leave and they must receive the same pay and other terms and conditions of employment.

Statutory definitions under this law

• “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 legal guardian of an employee, or 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 child of an employee standing in loco parentis.

Must unused sick leave be carried over?

An employee’s unused sick leave must be carried over to the following year, provided that:

• An employer with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year, and an employer with 100 or more employees may limit the use of sick leave to 56 hours per calendar year. Employers are also not required to pay an employee for unused sick leave upon the employee’s separation from employment.

What recordkeeping is required of employers?

Upon an employee’s request, the employer must provide a summary of the amount of sick leave accrued and used by the employee in the current calendar year and/or any previous calendar year. This information must be provided within three days of the request being made verbally or in writing. Furthermore, employers are required to maintain accurate payroll records for a minimum of six years under existing law; those records must now include the amount of sick leave provided to each employee.

Next steps

Covered employers should be develop their sick leave policy and implementing methods to track accrual and usage as well as examining the interplay of this statewide law with local laws, such as the New York City Earned Safe and Sick Time Act and the Westchester County Paid Sick Leave law, where applicable.

On Oct. 21, 2020 the New York State Department of Labor released a New York Paid Sick Leave website to provide employers with additional guidance and FAQs. Please consult those resources for more information.