Earlier this year, New York State enacted a new  sick leave law, which becomes effective Wednesday, September 30. This law requires all New York State employers to allow employees to accrue sick leave. Although accrual of sick leave begins on the 30th, employees may not take the leave until January 1, 2021.

This law is separate and distinct from the New York State emergency paid sick leave law, which went into effect March 18, 2020 (discussed here). It remains unclear how these two laws will co-exist in 2021, although since the emergency sick leave law is a required benefit over and above any standard paid sick leave provided by an employer, it is possible that the emergency sick leave will be required in addition to the newly required sick leave.

Amount of Required Leave

The amount of mandated paid or unpaid sick leave available to employees is determined by the employer’s employee count and/or net income in the previous tax year, as follows:

 

Number of Employees Net Income Required Leave
1-4 $1 million or less 40 hours of unpaid sick leave each calendar year
1-4 More than $1 million 40 hours of paid sick leave each calendar year
5-99 Not relevant 40 hours of paid sick leave each calendar year
100 or more Not relevant 56 hours of paid sick leave each calendar year

For purposes of determining the number of employees, “calendar year” means the 12-month period from January first through December thirty-first. For all other purposes, “calendar year” shall either mean the 12-month period from January first through December thirty-first, or a regular and consecutive 12-month period, as determined by the employer.

Employers are allowed to provide sick leave, paid or unpaid, in excess of these requirements, and may adopt paid leave policies that provide additional benefits to employees. In addition, an employer may elect to provide its employees with the total amount of sick leave required to fulfill its obligations under the law at the beginning of the calendar year, provided, however that if an employer does so, it is not allowed to reduce or revoke any such sick leave based on the number of hours actually worked by an employee during the calendar year.

Employers that already meet the requirement of the new law under existing employee policies do not need to increase their sick leave allotments.

Accrual of Leave

Employees will accrue sick leave at a rate of not less than one hour for every 30 hours worked, beginning at the commencement of employment or September 30, 2020, whichever is later, subject to the use and accrual limitations described in this article.

Purpose of Leave

Starting January 1, 2021, upon the oral or written request of an employee, employers are required to provide accrued sick leave for the following purposes:

(i) for a mental or physical illness, injury, or health condition of such employee or such employee’s family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that such employee requests such leave;

(ii) for 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; or

(iii) for 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 pursuant to subdivision thirty-four of section two hundred ninety-two of the executive law, 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; or

(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.

For the purposes of taking leave, the reasons outlined above in (a) through (g) must be related to the domestic violence, family offense, sexual offense, stalking, or human trafficking. A person who has committed such domestic violence, family offense, sexual offense, stalking, or human trafficking it not eligible for leave for situations in which the person committed such offense and was not a victim, notwithstanding any family relationship.

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

Other Provisions

An employer may not require the disclosure of confidential information relating to a mental or physical illness, injury, or health condition of an employee or an employee’s family member, or information relating to absence from work due to domestic violence, a sexual offense, stalking, or human trafficking, as a condition of providing sick leave pursuant to the law.

An employer may set a reasonable minimum increment for the use of sick leave, provided it does not exceed four hours. Employees are required to receive compensation at their regular rate of pay, or the applicable minimum wage, whichever is greater, for the use of paid sick leave.

Employers are required to allow employees to carry over unused sick leave to the following calendar year, provided, however, that: (i) an employer with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year; and (ii) an employer with 100 or more employees may limit the use of sick leave to 56 hours per calendar year. The law does not require employers to pay an employee for unused sick leave upon such employee’s termination, resignation, retirement, or other separation from employment.

Upon returning to work following any sick leave taken pursuant to the law, an employee must be restored to his or her position of employment as held by such employee prior to taking such sick leave, with the same pay and other terms and conditions of employment.

Upon the oral or written request of an employee, an employer must provide a summary of the amounts of sick leave accrued and used by such employee in the current calendar year and/or any previous calendar year, such information to be provided within three business days of such request.

This 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 law, if the city has a population of one million or more.

Next Steps

All employers should review their current sick leave policies to determine if any revisions are necessary to meet the minimum requirements of the new law (and, if an employer does not intend to pay for unused sick leave on termination, to confirm that their policies are clear on this issue), and make sure that their human resources personnel are aware of the law and properly tracking accruals commencing September 30.

For further information or guidance on revising your policies and procedures in accordance with this law, please contact David Paseltiner at dpaseltiner@jaspanllp.com or Jessica Baquet at jbaquet@jaspanllp.com.