June 11, 2020 New York’s New Mandatory Safe and Sick Leave Law
KEEPING YOU INFORMED…
We are writing to advise you that, effective on September 30, 2020, all private sector employers in New York will be required to provide their employees with certain sick leave benefits. This is separate from the State’s paid family leave program and the State’s recent requirements to provide sick leave, paid family leave and disability benefits to employees impacted by an order of quarantine or isolation due to COVID-19. The new requirements do not apply to governmental agencies.
Amount of Sick Leave
Effective September 30, 2020, employers must provide employees with sick leave benefits, the amount of which depends upon the employer’s size and net income (see chart below)
| Type of Employer[1] | Employee Sick Leave Benefit[2] |
|---|---|
| Four or fewer employees in any calendar year and a net income of one million dollars or less in the previous tax year. | Up to 40 hours of unpaid sick leave each calendar year. |
| Four or fewer employees in any calendar year and a net income of greater than one million dollars in the previous tax year. | Up to 40 hours of paid sick leave each calendar year. |
| Between five and 99 employees in any calendar year. | Up to 40 hours of paid sick leave each calendar year. |
| 100 or more employees in any calendar year. | Up to 56 hours of paid sick leave each calendar year. |
An employer is not required to provide any additional sick leave if the employer previously adopted a sick leave or time off policy that: (a) provides employees with an amount of leave meeting or exceeding the amount of leave required by the new law; and (b) satisfies the law’s accrual, carryover and use requirements, which are discussed below.
Accrual and Rate of Pay
Employees begin accruing sick leave on September 30, 2020 or the first day of employment, whichever is later. Employees must accrue sick leave at a rate of not less than one hour for every 30 hours worked. An employer may provide more sick leave, paid or unpaid, than the minimum requirements described in the chart above.
An employer may provide employees with all of the required sick leave at the beginning of the calendar year, provided that the employer does not later reduce or revoke the available amount of sick days based upon the number of hours an employee actually worked that year. “Required” sick leave is based on what the employer believes the employee will be entitled to accrue throughout the course of the calendar year based on the anticipated work schedule.
An employee who uses paid sick leave must be compensated at his or her regular rate of pay or the applicable State minimum wage, whichever is greater. An employer may set a reasonable minimum increment for the use of sick leave, which may not exceed four hours.
Use of Sick Leave
Beginning on January 1, 2021, an employer must permit an employee to use accrued sick leave for the below-listed purposes upon an employee’s verbal or written request. For purposes of these sick leave uses, the term “family member” means an employee’s child,[3] spouse, domestic partner, parent,[4] sibling, grandchild or grandparent, and the child or parent of an employee’s spouse or domestic partner.
1. For a mental or physical illness, injury, or health condition of the employee or the employee’s family member, regardless of whether the illness, injury, or health condition has been diagnosed or requires medical care at the time the employee requests the leave.
2. 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, the employee or the employee’s family member.
3. 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, a family offense, sexual offense, stalking or human trafficking:
- to obtain services from a domestic violence shelter, rape crisis center or other services program;
- to participate in safety planning, temporarily or permanently relocate, or take any other action to increase the safety of the employee or the employee’s family members;
- 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;
- to file a complaint or domestic incident report with law enforcement;
- to meet with a district attorney’s office;
- to enroll children in a new school; or
- 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.
The reasons outlined in 3(a) through 3(g) above must be “related to” the domestic violence, family offense, sexual offense, stalking, or human trafficking. The individual who commits the offense(s) is not eligible for these sick leave benefits.
Upon return to work, an employee must be restored to the same position that he or she held prior to using sick leave, with the same pay and other terms and conditions of employment.
Carryover of Unused Sick Days
An employee’s unused accrued sick leave must be carried over to the following calendar year. Employers can limit the use of sick leave, however, as follows:
1. An employer with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year; and
2. An employer with 100 or more employees may limit the use of sick leave to 56 per calendar year.
The law does not require an employer to pay an employee for unused sick leave upon the employee’s termination, resignation, retirement or other separation from employment. An employer may still be required to make this payment, however, pursuant to an applicable policy, agreement, collective bargaining agreement (“CBA”) or other source.
Collective Bargaining Agreements
In lieu of providing the leave required by the new law, an employer may enter into a CBA with a union on or after September 30, 2020 that provides unit members with a comparable benefit in the form of paid days off (the paid days off must be in the form of leave, compensation, other employee benefits or a combination thereof) or that provides unit members with “different” sick leave benefits. The law does not define whether “different” means better or worse for the unit members than the legally required benefits. In either situation, however, the CBA must specifically acknowledge the provisions of the new law (which will be set forth in new Section 196-b of the Labor Law). The law is silent with respect to whether the new leave requirements will supersede existing CBA or contract provisions. We will let you know whether this issue is addressed in State regulations or guidance.
Confidentiality and Prohibition Against Discrimination and Retaliation
An employer may not condition an employee’s use of sick leave on the disclosure of confidential information relating to an employee or an employee’s family member’s mental or physical illness, injury, or health condition or information relating to an employee’s absence from work due to domestic violence, a sexual offense, stalking or human trafficking.
An employer may, however, continue to require employees to certify that they are using sick leave for an appropriate purpose without requiring disclosure of confidential information. The new law does not define what is meant by “confidential information.” Until relevant regulations or guidance are issued, we interpret “confidential information” to include information that reveals the underlying basis for needing to take sick leave.
An employer may not discharge, threaten, penalize or in any other manner discriminate or retaliate against an employee because the employee has exercised his or her rights afforded pursuant to the new law, including requesting and using sick leave.
Changes to Payroll Record Requirements
The Labor Law currently requires employers to establish, maintain and preserve, for at least six years, payroll records that include the following information for each week worked for each employee: (a) the hours worked; (b) the rate(s) of pay and basis thereof (i.e., whether paid by the hour, shift, day, week, salary, piece, commission or other); (c) gross wages; (d) deductions; (e) allowances, if any, claimed as part of the minimum wage; and (f) net wages. For non-exempt employees, these records must also include the regular hourly rate(s) of pay, the overtime rate(s) of pay, the number of regular hours worked and the number of overtime hours worked. For employees paid a piece rate, the payroll records must include the applicable piece rate(s) of pay and number of pieces completed.
Effective September 30, 2020, these payroll records must also include “the amount of sick leave provided to each employee.” If you already provide your employees with sick leave that is greater than what will be required by the Labor Law, then we recommend that you implement a system to distinguish between the sick leave benefits required by law and additional benefits that you provide. That way, you can prove your compliance with the new law.
Employee Requests for Documentation
Within three business days of an employee’s oral or written request, an employer must provide a summary of the amount of sick leave accrued and used by the employee in the current calendar year and/or any previous calendar year.
Next Steps
The new law does not diminish or limit any existing paid sick leave benefits program enforced by a municipal corporation (including the Westchester County Earned Sick Leave Law, the Westchester County Safe Time Leave Law or the New York City Earned Safe and Sick Time Act).
The Commissioner of Labor is authorized to adopt regulations and issue guidance regarding the new law that may include standards for sick leave accrual, use, payment and employee eligibility. We anticipate that the regulations and/or guidance will define the types of employees who are eligible for this new mandatory paid sick leave. For example, some of the eligibility rules for the New York City Earned Safe and Sick Time Act limit eligibility to most employees who work more than 80 hours in a calendar year and disqualify employees covered by a collective bargaining agreement when the law first became effective until the collective bargaining agreement expires.
For this reason, we recommend that you wait until the regulations are adopted and/or when any State guidance is issued before updating applicable policies, employee handbooks, employment applications and employment agreements to ensure that they are in compliance with the law. You may also wish to consider changes to current or future collective bargaining agreements. We will let you know if, and when, regulations are adopted or guidance is issued. If the State does not act prior to the September 30, 2020 effective date of the law, we will follow up in advance of that date to discuss recommended best practices.
If you have any questions regarding this legislation, or would like assistance in reviewing or amending any applicable documents or agreements, please contact Alyson Mathews or Lauren Schnitzer or any of our other attorneys by calling 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2020
[1] “Calendar year” in this context is defined as January 1 through December 31.
[2] “Calendar year” in this context is defined as January 1 through December 31 or a regular and consecutive 12-month period, as determined by the employer.
[3] “Child” means a biological, adopted or foster child, a legal ward or a child for whom the employee is standing in loco parentis.
[4] “Parent” means a biological, foster, step- or adoptive parent, legal guardian of an employee or a person who stood in loco parentis when the employee was a minor child.