New York Employers Must Prepare To Provide Sick Leave Benefits in Accordance With New Statewide Sick Leave Law

As part of its approval of the state budget, New York State recently enacted a paid sick leave law that will apply to all private employers in New York starting this fall. Described by Governor Andrew Cuomo’s office as “the strongest Paid Sick Leave program in the nation”, the new law requires all businesses to provide job-protected sick leave in varying amounts depending on the number of individuals employed and that such leave be paid for employers with five or more employees. 

Amount of Sick Leave

The amount of leave that must be provided is based on employer size and, in some instances, is tied to revenue.

• Employers with 100 or more employees must provide up to 56 hours of paid sick leave in each calendar year.
  
  
• Employers with between five and 99 employees must provide up to 40 hours of paid sick leave in each calendar year.
  
  
• Employers with four or fewer employees must provide:
  
  
  • 40 hours of unpaid sick leave per calendar year if the net income of the employer for the previous tax year was $1 million or less, or
    
    
  • 40 hours of paid sick leave per calendar year if the net income of the employer for the previous tax year was greater than $1 million.

For purposes of leave accrual and use, employers may determine whether to use the regular calendar year (Jan. 1 through Dec. 31) or another consecutive 12-month period.

Accrual of Sick Leave

Employees must accrue sick leave at a rate of at least one hour for every 30 hours worked (which is the same accrual rate set forth under the New York City Earned Safe and Sick Time Act (NYC ESSTA) and the Westchester County Earned Sick Leave Law), subject to the use and accrual limitations set forth in the new law. Employers also have the option of providing employees with the full amount of required sick leave at the beginning of the calendar year. Employers opting to front-load the sick time may not reduce or revoke sick leave, even if the employee actually works fewer hours.

Employees must begin accruing sick leave consistent with the new law on Sept. 30, 2020. Employers must provide employees the opportunity to use accrued leave for the covered uses specified in the law beginning on Jan. 1, 2021. Thus, employers that decide to front-load sick time will not need to do so midyear and can commence paid leave availability on Jan. 1, 2021.

Covered Reasons for Taking Sick Leave

Employees must be permitted to use sick leave for any of the following reasons:

• 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 the employee requests leave
  
  
• The diagnosis, care, or treatment of a mental or physical illness, injury or health condition of, or the need for medical diagnosis of, or preventive care for, the employee or the employee’s family member
  
  
• An absence from work for any of the following reasons when the employee or the employee’s family member has been the victim of domestic violence, a family offense, a 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 their family member
    
    
  • 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 incident report with law enforcement
    
    
  • To meet with a district attorney’s office
    
    
  • To enroll children in a new school
    
    
  • 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

For purposes of the new sick leave law, a “family member” includes the employee’s child (including adopted or foster children, a legal ward or an equivalent legal relationship), spouse, domestic partner, parent (including a stepparent, foster or adoptive parent, or legal guardian or equivalent legal relationship), sibling, grandchild, grandparent, and child or parent of the employee’s spouse or domestic partner.

Employers may not require the disclosure of confidential information relating to the reasons for using sick leave as a condition of providing sick leave.

Use of Sick Leave

Employers are allowed to set a reasonable minimum increment for the use of sick time, which must be no greater than four hours.

Unused sick time must be carried over from the prior calendar year with the following limitations:

• Employers with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year.
  
  
• Employers with 100 or more employees may limit the use of sick leave to 56 hours per calendar year.

Notably, the law makes clear that employers are not required to pay out unused sick leave upon termination, resignation or other separation from employment.

Return to Work

Employees returning to work after using sick leave must be restored to the position of employment they held prior to their use of sick leave, with the same pay and same terms and conditions of employment.

Record-Keeping

Employers must, within three business days of an employee request, provide a summary of sick leave accrued and used within a calendar year or any previous calendar year. Employers also must keep for a minimum of six years a record of the amount of sick time provided to employees under the law.

No Retaliation

The law forbids an employer; its “agent”; the “officer or agent of any corporation, partnership, or limited liability company”; and “any other person” from discharging, threatening, penalizing, or in any other manner discriminating or retaliating against an employee for requesting or using sick leave or otherwise exercising the employee’s rights under the new law.

Interaction With Other Paid-Time-Off Policies

Employers may fulfill their obligations under this law through their existing sick leave or paid-time-off policies if the amounts of leave provided in such policies meet or exceed the amounts of leave provided under the law and the requirements for accrual, carryover and use.

The requirements may be addressed for unionized employees through a collective bargaining agreement entered into on or after the effective date of the law (Sept. 30, 2020) that provides a comparable benefit for employees in the form of paid leave, compensation, other employee benefits or a combination thereof, in lieu of expressly providing for leave under the law, as long as the agreement specifically acknowledges the provisions of the law.

Additionally, the law explicitly does not diminish or limit any city or county paid sick leave laws; thus, employers who are subject to other local requirements such as the NYC ESSTA must ensure their policies comply with all applicable laws. 

Interaction With New York City Earned Safe and Sick Time Act

There are several important differences between the NYC ESSTA and New York State’s new paid sick leave law, including:

• Employers with 100 or more employees: New York State law now requires that such employers provide up to 56 hours of paid sick leave in each calendar year, while New York City law requires only up to 40 hours of paid sick leave in each calendar year.
  
  
• Definition of “Family”: NYC ESSTA’s definition of “family” is broader than the definition in the New York State law and includes any other individual related by blood to the employee and any other individual whose close association with the employee is the equivalent of a family relationship.
  
  
• Record-Keeping: Under New York State law, employers are required to maintain records of the amount of sick leave provided to each employee for no less than six years, which is an increase from the NYC ESSTA’s requirement of no less than three years.
  
  
• Notice: New York State’s new legislation is silent on the issue of whether employees must provide notice for sick leave. The NYC ESSTA, on the other hand, allows employers to require up to seven days’ advance notice for the foreseeable use of safe time and sick time and notice as soon as is practicable if use is unforeseeable.
  
  
• Documentation: New York State’s new law prohibits employers from requiring disclosure of confidential information as a condition of providing sick leave but is silent as to whether employers may request any documentation regarding the use of sick and safe time. By contrast, the NYC ESSTA allows employers to require supporting documentation for the use of sick time and safe time extending beyond three consecutive workdays.

Next Steps for Employers

In addition to making sure that any policies regarding sick time comply with the laws that have been enacted regarding sick leave related to the COVID-19 pandemic, employers in New York should begin preparing to update their sick time policies, protocols and tracking tools in advance of Sept. 30, 2020, when leave must begin accruing in accordance with the new law. It would be prudent, however, for employers to await guidance from the state on the new law, which we hope will be provided over the next several months, before finalizing modifications to their policies. In addition, Human Resources professionals must be knowledgeable about the requirements of the new law, and — crucially — management must be educated as to changes in an employer’s policies, including potentially enhanced sick leave entitlements. We will continue to monitor developments pertaining to the law and provide updated information when the state issues additional guidance on the law’s requirements.

For questions or concerns regarding this alert, please contact a member of Kramer Levin’s Employment Law Department.