New York State recently added Section 196-b to the New York Labor Law, implementing statewide paid sick leave as of the 2020-2021 fiscal year budget. Employees become eligible for this benefit starting on January 1, 2021.
Employer Size and Net Income Requirements
The new law requires ALL New York State employers to provide the following amounts of sick leave:
For employers that have four or fewer employees in any calendar year and a net income of $1 million or less in the previous tax year, the employer must provide each employee with at least 40 hours of unpaid sick leave each calendar year.
For employers that have four or fewer employees in any calendar year and a net income of more than $1 million in the previous tax year, the employer must provide each employee with at least 40 hours of paid sick leave each calendar year.
For employers that have between 5 and 99 employees in any calendar year, the employer is required to provide each employee with at least 40 hours of paid sick leave each calendar year.
For employers that have 100 or more employees in any calendar year, the employer is required to provide each employee with at least 56 hours of paid sick leave each calendar year.
Exception for Employers with Existing PTO and/or Sick Leave Policies
Employers may avoid adding additional paid sick leave to their paid time off benefits if they already have a sick leave policy or time off policy that provides employees with an amount of leave which meets or exceeds the requirements (including accrual and carry over) based on the number of employees and net income. This includes collective bargaining agreements entered into after the effective date of the law.
Permitted Uses of New York State Paid Sick Leave
Employees may use the New York State Paid Sick Leave for:
a mental or physical illness, injury, or health condition of an employee or the employee’s family member, irrespective of whether such illness, injury or health condition has been diagnosed or requires medical care at the time the employee requests leave;
the diagnosis, care or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member, or award for whom the employee is the guardian; or
an employee or an employee’s family member who is a victim of domestic violence, a sexual offense, stalking or human trafficking, to avail themselves of services or assistance.
The definition of “family member” includes an employee’s child, spouse, domestic partner, parent, sibling, grandchild, grandparent, or 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; a legal ward; or a child of an employee standing in loco parentis.
The new law provides job protection to employees who have requested or taken paid sick leave.
Moreover, employers may not condition an employee’s use of paid sick leave on the disclosure of confidential information about an employee or an employee’s family member relating to an employee or family member’s mental or physical illness, injury, or health condition, or relating to absence from work due to domestic violence, a sexual offense, stalking or human trafficking.
Accrual of Sick Leave
Employees must accrue sick leave at a minimum rate of no less than one hour per every 30 hours worked, beginning at the commencement of their employment or the effective date of the law (on or about September 30, 2020), whichever is later.
Employees may also have their paid sick leave front-loaded at the start of the year.
Employee Pay Out Requirements
Employers must pay employees who use New York State Paid Sick Leave at their regular rate of pay or the applicable minimum wage, whichever is greater.
Employers may require employees to use a minimum increment of at least four hours of sick time.
Employees may carry over any accrued, unused sick leave to the next calendar year, in which case the employer can limit the use of sick leave per calendar year to either 40 hours (for employers with fewer than 100 employees) or 56 hours (for employers with 100 or more employees).
Upon separation of employment, employers are not required to pay an employee for unused sick leave, regardless of the reason for the separation.
The New York State Department of Labor is expected to issue regulations/guidance under the new law. We will update you when that occurs. In the interim, our Firm can assist you with revising your sick leave policies to reflect the new Paid Sick Leave provisions.
Our Firm has extensive experience counseling employers and businesses on employee and labor law issues, and preparing applicable employee policies, particularly relating to the evolving regulations during the COVID-19 pandemic. If you have any questions related to this Legal Briefing or questions related to COVID-19 reopening rules and procedures, please contact any member of our Firm at 585-730-4773. Please note that any embedded links to other documents may expire in the future.
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