There are many laws on the federal, state and local levels that govern whether employers must provide time off, paid or unpaid, to employees for various types of leave. Most employers and employees are familiar with the federal Family and Medical Leave Act of 1993 (FMLA), as well as the New York Paid Family Leave Benefits Law (PFLBL). The recent COVID-19 pandemic has also resulted in the federal government and many states, including New York, adopting leave laws particular to this event (see our recent article on this topic). While these new laws have garnered significant attention, less attention has been paid to the fact that, just last week, New York enacted a mandatory sick leave law.
The following is a brief summary of this new law, as well as other lesser-known New York State employee leave laws. Unless otherwise noted below, these laws apply to all private employers operating in New York State, regardless of the number of employees. Readers are advised to refer to the full text of the laws for a complete description of their terms.
On April 3, 2020, Governor Andrew Cuomo signed New York Labor Law §196-b (NY Sick Leave Law). It mandates that employers provide paid or unpaid sick leave to employees depending on the employer’s size and the previous tax year’s net income. Specifically, beginning on January 1, 2021:
- Employers with four or fewer employees must provide at least 40 hours of sick leave that is: (i) unpaid, if the employer’s net income is less than $1 million, or (ii) paid at the employee’s regular rate, if the employer’s net income is greater than $1 million.
- Employers with five to 99 employees in a calendar year must provide at least 40 hours of paid sick leave each calendar year.
- Employers with 100 or more employees must provide at least 56 hours of paid sick leave each year.
Employees will begin accruing sick leave at the commencement of their employment or on September 30, 2020, whichever is later. Leave will accrue at the rate of one hour for every 30 hours worked. However, employers are free to provide employees with the maximum allotment of paid leave at the beginning of the calendar year.
Employers must track earned sick leave and unused sick leave can be carried over to the next calendar year. However, an employer does not have to pay out the earned sick leave when employment ends.
Sick leave may be used for the following reasons:
- A mental or physical illness, injury, or health condition of an employee or employee’s family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care;
- 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, an employee or an employee’s family member;
- An absence from work when the employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking, in order to attend to various types of matters which are discussed in more detail below in relation to leave for victims of domestic violence.
The NY Sick Leave Law does not interfere with existing municipal sick leave laws (such as in New York City and Westchester County) and allows for cities to enact local laws or ordinances that conform to or exceed the state sick leave law, if the city has a population of one million or more.
Because employers must begin tracking earned sick leave on September 30, 2020, it is important that they begin preparing to do so now. This means updating existing sick leave policies and training human resources professionals about their obligations.
Jury Duty Leave
Section 519 of the New York Judiciary Law provides that employers may not discharge or penalize any employee for their absence for jury service, when the employee notifies his or her employer before jury service begins. However, employers may withhold wages from an employee during his or her period of jury service, except that employers with more than 10 employees must compensate employees serving as jurors the first $40 of daily wages for the initial three days of jury service. A violation of this law constitutes criminal contempt of court.
There have been changes to New York’s voting leave laws in the last several years. Just last week, New York passed a budget bill which restored an older version of the voting leave law. Under section 3-110 of the New York State Election Law, an employer must post a notice regarding employee rights for time off to vote in a location where employees can see the notice as they come and go. The notice must be posted at least ten working days prior to each election day until the polls close. An employer must provide up to two hours of paid time off to any employee who (i) is a registered voter, (ii) does not have at least four consecutive hours before or after work while the polls are open, and (iii) notifies the employer two to ten working days prior to the election that they will need time off to vote. The employer may designate the requested time off at either the beginning or end of an employee’s work shift on election day.
Crime Victims/Witness Leave
New York State Penal Law section 215.14 criminalizes an employer’s penalizing or discharging an employee who is the victim of an offense upon which an accusatory instrument is based, who is subpoenaed to attend a criminal proceeding as a witness or who desires to exercise his rights to make a statement as a crime victim with regard to a sentencing, pre-sentencing or parole hearing, provided the employee gives prior notice to his employer of his intent to appear as a witness, to consult with the district attorney, or to attend such hearing. An employer may withhold wages from any employee during the period of absence from work and may request the employee provide verification of such appearance, consultation or attendance. Employers who violate this law may be charged with a class B misdemeanor.
Victims of Domestic Violence
Under Section 22(c) of Article 15 of the New York State Executive Law, an employer is required to provide a reasonable accommodation to an employee who is a victim of domestic violence who must be absent from work for a reasonable time to (i) seek medical attention or psychological counseling for themselves or a child, (ii) obtain services from domestic violence organizations, (iii) participate in safety planning including temporarily or permanently relocating, or (iv) obtain legal services, assist in the prosecution of the offense or appear in court in relation to the domestic violence incident. An employer is required to provide a reasonable accommodation for an employee’s absence in accordance with this law unless the employer can demonstrate that the employee’s absence would constitute an undue hardship to the employer. An employee must provide either advanced notice of his or her absence to the extent it is feasible, or documentation verifying the purpose of the leave.
The PFLBL provides paid family leave to employees who need to care for a close family member with a serious health condition. A 2018 Amendment to PFLBL, known as the Living Donor Protection Act, expands the definition of “serious health condition” to include organ and tissue donation, and requires that employers allow employees to take leave to care for a family member who is involved in such a donation, including transplantation preparation and recovery from related surgery.
Section 202-A of the Labor Law states that an employer with 20 or more employees must provide a leave of absence for up to 24 working hours to an employee seeking to donate bone marrow.
Section 202-J of the Labor Law provides that an employer with 20 or more employees must either, at its option: (i) grant three hours of leave of absence in any 12 month period to an employee who seeks to donate blood, provided that the leave of absence may not exceed three hours unless otherwise agreed to by the employer and must comply with the requirements established by the labor commissioner; or (ii) allow its employees without use of accumulated leave time to donate blood during work hours at least twice a year at a convenient time and place set by the employer, including allowing an employee to participate in a blood drive at the employee’s place of employment. Employers are prohibited from retaliating against an employee who requests or obtains a leave of absence pursuant to these laws.
Under New York Labor Law section 206-c, employers are required (i) to provide reasonable unpaid break time or permit an employee to use paid break time each day to express breast milk for her nursing child for up to three years following child birth, (ii) make reasonable efforts to provide a location, in close proximity to the work area, where an employee can express milk in privacy, and (iii) not to discriminate against an employee who chooses to express breast milk in the work place. Guidelines issued by the New York State Department of Labor also provide that an employer must provide written notification of the rights provided pursuant to this law to any employees returning to work following the birth of a child.
Under Section 296 of Article 15 of the New York State Executive Law, except where it would cause an employer to incur an undue hardship, no employee may be required to remain at the employee’s place of employment during any day or days or portion thereof that, as a requirement of such employee’s religion, the employee observes as his or her sabbath or other holy day, including a reasonable time before and after such observance for travel between the work site and his or her home. However, any such absence from work must, wherever practicable in the employer’s reasonable judgment, be made up by an equivalent amount of time and work at some other mutually convenient time or be charged against any leave with pay ordinarily granted, other than sick leave. Any such absence not so made up or charged may be treated by the employer as leave taken without pay. Refusing to permit an employee to utilize such leave, solely because the leave will be used for absence from work to accommodate the employee’s sincerely held religious observance or practice, is an unlawful discriminatory practice.
Military Service and Military Spouse Leave
Section 317 of the New York Military Law provides that in the case of any non-temporary employee who, in order to perform military service, leaves his or her position with an employer, and who thereafter (a) receives a certificate of completion of military service; (b) is still qualified to perform the duties of such position; and (c) makes application for reemployment within 90 days after he or she is relieved from such service, must be restored to such person to such position, or to a position of like seniority, status and pay, unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.
In addition, New York Labor Law section 202-I requires employers with 20 or more employees working in at least one site to give the spouse of a member of the armed forces of the United States, national guard or reserves who has been deployed during a period of military conflict, to a combat theater or combat zone of operations up to ten days unpaid leave, provided such leave shall only be used when the spouse is on leave from the armed forces of the United States, national guard or reserves while deployed during a period of military conflict to a combat theater or combat zone of operations. Employers may not retaliate against an employee for requesting or obtaining such leave.
While not itself requiring leave for adoption, New York Labor Law 201-c does require employers to give employees who adopt a child the same leave benefits given to employees for the birth of the child if the adopted child is either (a) younger than school age (currently, five years old), or (b) hard-to-place or handicapped and under 18 years old. Employers cannot retaliate against an employee for exercising rights under this law.
Funeral and Bereavement Leave
While not itself requiring leave for bereavement, New York Civil Rights Law 79-n does require employers that allow employees to take funeral or bereavement leave for the death of the employee’s spouse or the child, parent, or other relative of the spouse to provide the same leave to an employee for the death of the employee’s same-sex committed partner or the child, parent, or other relative of that partner.
For further information or guidance on revising your policies and procedures in accordance with the above leave laws, please contact David Paseltiner at (516) 393-8223 or email@example.com