Apr. 15, 2020

Summary of the New York Paid Sick Leave Provisions

Employers in New York will be required to revise their employee sick leave requirement under a new law enacted in the New York State budget.    Effective October 1, 2020, Chapter 56 of the Laws of 2020, established minimum standards for sick leave in New York, including a minimum amount of sick leave to be provided accrual and carry over standards, and use of sick leave.  In addition, the new law prevents employer retaliation for an employee’s use of sick leave, requires restoration of an employee to his/her position after the use of sick leave, and requires an employer to provide a summary of use within three business days upon written request of an employee. Finally, the new law requires an employer to maintain records on employee sick leave for six years.   

Chapter 56 requires New York employers to have the following minimum standards regarding sick leave provided to employees:

Minimum Sick Leave

  1. Employers with 4 or fewer employees in any calendar year and a net income of one million dollars or less in the previous tax year: 40 hours of unpaid sick leave in each calendar year.  
  2. Employers with 4 or fewer employees in any calendar year and a net income of more than one million dollars in the previous tax year and employers with between 5 and 99 employees in any calendar year: 40 hours of paid sick leave in each calendar year.
  3. Employer with 100 or more employees in any calendar year: 56 hours of paid sick leave in each calendar year.

“Calendar Year” Definition

  1. For purposes of determining number of employees, “calendar year” means January 1 through December 31.
  2. For purposes of use, accrual, and carry over of an employee’s sick leave, “calendar year” means either January 1 through December 31 or a regular and consecutive twelve-month period, as determined by the employer.

Accrual of Sick Leave

Employees will accrue sick leave at a rate of one hour per every thirty hours worked, beginning at the commencement of employment or October 1, 2020, whichever is later.  Employers are permitted to provide all of the leave required under this section at the beginning of the calendar year.  However, if an employer decides to do this, the employer is prohibited from reducing or revoking such leave based on the number of hours the employee actually works.  

Use of Sick Leave

On and after January 1, 2021 and on the oral or written request of an employee, an employer must provide accrued sick leave for the following purposes:

  1. Mental or physical illness, injury, health condition of the employee or the employee’s family member, regardless of whether s/he has been diagnosed or requires medical care at the time the employee requests such leave;
  2. For diagnosis, care, or treatment of a mental or physical illness, injury, health condition or need for medical diagnosis or preventive care for the employee or the employee’s family member;
  3. Absence from work due to any of the following reasons when the employee or the employee’s family member has been the victim of domestic violence, 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 employee’s family members;
    • 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 domestic incident report with law enforcement;
    • to meet with a district attorney’s office; 
    • to enroll children in a new school; or
    • 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.

“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 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 a biological, adopted or foster child, legal ward, or a child of an employee standing in loco parentis.

As a condition of providing sick leave, an employer cannot require disclosure of confidential information relating to illness, injury, or health conditions (mental or physical) of an employee or employee’s family member nor can an employer require information regarding absence of work because of domestic violence, a sexual offense, stalking, or human trafficking.

Minimum Increments of Leave

Employers may set minimum increments for use of sick leave which cannot exceed four hours. Employees must be compensated at their regular pay rate, or the applicable minimum wage (whichever is greater) for the use of paid sick leave.

Carry Over of Unused Leave

Unused sick leave must be carried over to the following calendar year, but an employer with fewer than 100 employees may limit use of sick leave to 40 hours per calendar year and an employer with 100 or more employees may limit use of sick leave to 56 hours per calendar year. There is NO requirement, however, to pay out sick leave or allow an individual to take sick leave at the end of their employment.

Anti-Retaliation and Job Protection

Employers may not discharge, threaten, penalize, or discriminate or retaliate against an employee because the employee has exercised rights under the requirements of the provision of sick leave under Chapter 56.
When the employee returns following any sick leave taken pursuant to this section, (s)he must be restored to the position (s)he held before any leave taken with the same pay and terms and conditions of employment.

Written Summary of Available Leave

On an employee’s oral or written request, an employer must provide a summary of the amount of sick leave that the employee has accrued and used in the current or any previous calendar year. This information must be provided within three business days of the request.

No Additional Leave Required

No additional sick leave is required if the employer has adopted a sick leave policy or time off policy that provides an amount of leave that meets or exceeds the requirements of Chapter 56 and satisfies the accrual, carry over, and use requirements. While there will be interpretation of this provision by the Department of Labor which should provide more guidance, this could potentially include personal or other leave.  

Collective Bargaining Agreements

Collective Bargaining Agreements entered into on or after October 1, 2020 may, in lieu of the leave provided for in Chapter 56, provide a comparable benefit to employees in the form of paid days off, and such paid days off are in the form of leave, compensation, or other employee benefits.  Certified collective bargaining agents may negotiate terms and conditions of sick leave which are different than the requirements of Chapter 56, but the agreement must specifically acknowledge the provisions of Chapter 56.

Records Retention

Chapter 56 requires an employer to maintain employee records relating to sick leave for a period of six years.

Whiteman Osterman & Hanna LLP can assist with these issues and more, as you and your business work to navigate the novel and difficult decisions arising from the COVID-19 pandemic.  For assistance with NY Sick Leave issues, please contact:

Ellen M. Bach  (518) 487-7736  ebach@woh.com
Beth A. Bourassa  (518) 487-7617  bbourassa@woh.com
Heather D. Diddel  (518) 487-7703  hdiddel@woh.com
Norma G. Meacham  (518) 487-7735  nmeacham@woh.com
Kevin P. Quinn  (518) 487-7689  kquinn@woh.com
Robert T. Schofield  (518) 487-7616  rschofield@woh.com
Monica R. Skanes  (518) 487-7764  mskanes@woh.com
Erin M. Callahan  (518) 487-7659  ecallahan@woh.com
Vitaliy Volpov  (518) 487-7758  vvolpov@woh.com
Gabriella R. Levine  (518) 487-7654  glevine@woh.com