Reminder: New York Paid Sick Leave Goes into Effect Sept. 30

On Sept. 30, 2020 New York’s general paid sick leave law (PSL) will go into effect. As outlined in detail in our previous alert, the PSL applies to all private employers in the state and requires all businesses that have five or more employees to provide job-protected paid sick leave in varying amounts depending on the total number of individuals employed. Small employers with fewer than five employees are required to provide unpaid leave if their net income is less than $1 million. While employers are not required to permit their employees to use PSL until Jan. 1, 2021, all other obligations under the new law go into effect on Sept. 30.

As set forth in our previous alert:

• Employers with four or fewer employees and net income of $1 million or less in the previous tax year are required to provide 40 hours of unpaid sick leave per calendar year.
• Employers with four or fewer employees and net income of greater than $1 million in the previous tax year are required to provide 40 hours of paid sick leave per calendar year.
• Employers with five to 99 employees must provide 40 hours of paid sick leave per calendar year.
• Employers with 100 or more employees must provide 56 hours of paid sick leave per calendar year.

Beginning Sept. 30, 2020 PSL accrues at a rate of one hour per 30 hours worked, up to the annual caps set forth above, and employees must be permitted to carry over earned but unused PSL from year to year. However, an employer may choose to grant employees the full amount of leave at the beginning of the year.

The PSL joins the New York City Earned Safe and Sick Time Act and the Westchester County Earned Sick Leave and Safe Time Leave laws, which continue to apply in their respective jurisdictions, but (as discussed in our alert) the PSL law expressly requires in some instances more generous benefits and protections than these local ordinances. Further complicating matters, the PSL statute contains a number of ambiguities that leave application of the law uncertain, including but not limited to the following:

1. Is employer size — which determines how much leave must be provided — determined on a state or nationwide basis? The statute does not answer this question.
2. Can employers that choose to front-load PSL in lieu of accrual eliminate year-end carryover of unused PSL? The logical conclusion is yes because the statute permits employers to limit the use of sick leave to the maximum accrual amount, but the statute is not explicit in this regard.

As of the publication of this alert, the state has not released any guidance or regulations to assist employers in resolving these important questions. However, because the PSL law goes into effect at the end of the month, employers are advised to update their policies now based on the information available, prepare to begin tracking accruals if appropriate, and educate human resources professionals on the requirements of the new law and its interplay with applicable local paid sick-time laws. Employers should also continue to monitor developments with the understanding that additional updates may be necessary in the future. We will of course also continue to monitor these developments and provide updated information as additional guidance becomes available.

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