Act Now! Changes to New York Sick Leave Are Here

Jacob W.E. Kearney, Stephen E. Tisman, Mara B. Levin, and Anthony A. Mingione

New York State’s amendments to its Labor Law requiring all employers to provide sick leave to employees are effective on Wednesday, September 30, 2020. Signed into law by Governor Cuomo in April as part of the State Budget (Senate Bill S7506B), our prior post detailed that the new amendments require employers to provide between 40 and 56 hours of guaranteed sick leave depending on employer size and net income. Starting Wednesday, covered employees will be entitled to accrue sick leave although the employees may be restricted from using that accrued leave until January 1, 2021.

Under New York’s Labor Law’s new requirements:

      • Employers with 100 or more employees must allow employees to accrue at least 56 hours of paid sick leave each calendar year;
      • Employers with between five and 99 employees must allow employees to accrue at least 40 hours of paid sick leave each calendar year;
      • Employers with fewer than five employees but having a net income greater than one million dollars in the previous tax year must allow employees to accrue at least 40 hours of paid sick leave each calendar year; and
      • Employers with fewer than five employees but having a net income less than one million dollars in the previous tax year must allow employees to accrue at least 40 hours of unpaid sick leave each calendar year.

An employer can either: (i) allow the leave to accrue at the rate of “not less than one hour of sick leave per thirty hours worked”; or (ii) provide employees with the full amount required under these new amendments at the beginning of each calendar year. If frontloaded, however, an employer may not later reduce or revoke any such leave in that calendar year regardless of the number of hours actually worked.

A “calendar year” is defined with respect to measuring the number of employees as the 12-month period from January 1 through December 31. For all other purposes, a “calendar year” can either be the period from January 1 through December 31 or a regular and consecutive 12-month period, as determined by the employer.

Beginning January 1, 2021, employees can use accrued sick leave for the following reasons:

      • Physical or mental injury, illness, or health condition of the employee or employee’s family member (regardless of whether there is a diagnosis or it requires medical care);
      • “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
      • Absence due to the employee or employee’s family member being a victim of domestic violence, “a family offense, sexual offense, stalking, or human trafficking”; seeking or obtaining services, including from a shelter, attorney, or law enforcement; or taking “any other actions necessary to ensure the health or safety of the employee or family member or to protect those who associate or work with the employee.”

These new requirements act as a floor to establish the minimum level of benefits, and employers can provide for greater benefits and/or protections for employees.

Employees can also carry over any accrued sick leave into the next year. The new amendments do not currently limit the amount of leave an employee may carry over. Employers, however, can limit the amount of sick leave used in one year to the maximum number of hours that an employee can accrue in one year (i.e., either 40 or 56). Employers can also designate a “reasonable minimum increment” for an employee’s use of sick leave that cannot exceed four hours.

Under these new amendments, employers are not obligated to pay an employee for any unused sick leave upon that employee’s retirement, termination of employment, resignation, or other separation from employment.

These amendments are permanent requirements (and not limited to the COVID-19 pandemic).

New York employers should review their sick leave policies as soon as possible in light of the September 30, 2020, and January 1, 2021, effective dates to ensure that their policies address these new minimum hours requirements and allow sick leave to be used for the purposes detailed in the amendments. New York employers with sick leave or time off policies already meeting or exceeding these new requirements are not required to provide additional leave.

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