Jacob W.E. Kearney, Stephen E. Tisman, Anthony A. Mingione, and Mara B. Levin
New York City recently amended its Earned Safe and Sick Time Act (the “Act”) to match New York State’s recent changes to the Labor Law requiring all employers to provide sick leave to employees as discussed in our prior posts (Empire State Requires All Employers to Provide Sick Leave; Act Now! Changes to New York Sick Leave Are Here). New York City’s Act now matches the New York State requirements that employers must allow employees to accrue safe/sick time of between 40 to 56 hours per year (depending on employer size and net income). Although effective September 30, employees may be restricted from using any additional accrued paid time under the new legislation until January 1, 2021. New York City employers are also required to provide notice of the changes to their employees by October 30, 2020.
Mirroring the new Labor Law requirements, the New York City Act provides that:
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- Employers with 100 or more employees must allow employees to accrue at least 56 hours of paid safe/sick time each calendar year;
- Employers with between five and 99 employees must allow employees to accrue at least 40 hours of paid safe/sick time 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 safe/sick time each calendar year; and
- Employers with fewer than five employees and 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 safe/sick time each calendar year.
Similar to the state’s Labor Law, the New York City Act also provides:
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- That such time accrues at a minimum of one hour of safe/sick time for every 30 hours worked by an employee;
- An employer may set a reasonable increment for the use of safe/sick time that shall not exceed four hours;
- Employees can carry over up to 40 hours or 56 hours of unused safe/sick time to the next calendar year, but employers can restrict the amount of time used in a calendar year to either 40 or 56 hours (depending on employer size and income);
- Employers are not required to reimburse employees for any unused accrued safe/sick time upon the employee’s termination, resignation, retirement, or other separation from employment; and
- Employees accruing paid safe/sick time (e., all employees except those working for employers with less than five employees and net incomes less than one million dollars) may be restricted from using their newly accrued paid time until January 1, 2021.
The Act also adds some provisions not found in the state’s Labor Law. Notably:
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- Employees of employers with fewer than five employees and a net income of less than a million dollars during the previous tax year can begin accruing unpaid leave (and using as it is accrued) on September 30, 2020;
- Employers are required to cover any fee incurred by the employee associated with acquiring documentation (such as a doctor’s note) requested by the employer to justify use of safe/sick time for an absence of more than three consecutive workdays;
- Effective September 30, 2020, employers must also notify employees in writing each pay period as to the amount of safe/sick time accrued and used during that pay period and the total balance of accrued safe/sick time (either on a pay stub or by some other means)—employers working in good faith to operationalize the documentation, however, have until November 30, 2020, to implement this provision (and this provision only);
- Employers need to provide written notice to their current employees of their rights to safe/sick time pursuant to the Act by October 30, 2020, and to new hires going forward (the notice must include the accrual and use of safe/sick time, the employer’s calendar year, and the right to be free from retaliation and to file a complaint);
- The New York City Department of Consumer and Worker Protection can now open investigations into violations of the law “upon receipt of a complaint or on its own initiative”; and
- Violations of the Act now include a civil penalty of not more than $15,000 and relief of up to $500 to each employee “covered by an employer’s official or unofficial policy or practice of not providing or refusing to allow the use of earned time.”
These are permanent requirements (and not limited to the COVID-19 pandemic).
New York City employers should review their sick time policies to ensure that they address these new minimum hours requirements and allow sick time to be used for the purposes detailed in the amendments. New York City employers also need to provide notice, as provided in the Act, to all employees by October 30, 2020. New York City employers with sick leave or time off policies already meeting or exceeding these new requirements are not required to provide additional time but must comply with the other requirements of the Act, including the notice obligations.