Employees are to accrue one hour of sick leave for every 30 hours worked, beginning September 30, 2020.

On April 3, 2020, amid the legislative chaos spurred by COVID-19, New York Governor Andrew Cuomo signed the Fiscal Year 2021 Enacted Budget. Among other things, the budget amends Section 196 of the New York Labor Law to enact a permanent paid sick leave program for New Yorkers starting January 1, 2021. The legislation delineates an employer’s responsibility based on number of employees or, in some instances, revenue.

• Employers with four or fewer employees and a net income of $1 million or less: 40 hours unpaid sick leave
• Employers with four or fewer employees and a net income of greater than $1 million: 40 hours paid sick leave
• Employers with between five and 99 employees: 40 hours paid sick leave
• Employers with 100 or more employees: 56 hours paid sick leave

Employees are to accrue one hour of sick leave for every 30 hours worked, beginning September 30, 2020, or when an employee begins their employment, whichever is later. Employers can choose to frontload the required amount of sick leave at the beginning of the year, however, employers may not reduce or revoke any sick leave based on the hours an employee actually works during the year.

This legislation follows on the heels of New York’s recent legislation to provide paid sick leave for employees for reasons related to COVID-19. Up until this legislation, only employers in New York City, pursuant to the New York City Earned Safe and Sick Time Act, and those in Westchester County under the similar Westchester County Earned Sick Leave Law, have been required to provide employees who work 80 or more hours a year with up to 40 hours of paid sick leave (employees earn one hour of paid sick leave for every hour worked; for employers of four or fewer employees, earned sick leave is unpaid). New Jersey also recently enacted a statewide paid sick leave law in response to the pandemic.

Permissible Uses of Sick Leave

The new legislation permits an employee to make an oral or written request to use accrued sick leave for the following reasons:

• 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 leave;
• For the diagnosis, care or treatment of a mental or physical illness, injury or health condition of, or the need for medical diagnosis of or preventive care for, the employee or the employee’s family member;
• An absence from work when the employee or their family member has been the victim of domestic violence, a family offense, sexual offense, stalking or human trafficking for any of the following reasons:
  • 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 other actions to increase the safety of the employee or their family members;
  • To meet with an attorney or other social services provider to obtain information and advice and prepare for or participate in any criminal or civil proceeding;
  • To file a complaint or 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 law defines “family member” as “an employee’s child, spouse, domestic partner, parent, sibling, grandchild, grandparent, and child or parent of the 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” means “a biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.”

Employers 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 as a condition of providing sick leave.

Accrual, Usage and Other Provisions

Incremental Use

Employers can set a reasonable minimum increment for the use of sick leave, not to exceed four hours.

Compensation

Employers must compensate employees at their regular rate of pay or minimum wage, whichever is greater.

Carryover

Unused sick leave must carry over to the next calendar year. However, employers can limit use of sick leave to 40 hours, or 56 hours for employers with 100 or more employees.

Discrimination

The law explicitly prohibits discrimination and retaliation against employees for requesting and using permissible sick leave. Upon an employee’s return to work following sick leave, an employee must be restored to their prior position with the same pay and terms and conditions of employment.

Separation

Nothing in the law requires an employer to pay an employee for unused sick leave upon termination, resignation, retirement or other separation from employment.

Existing Policies

If employers have a sick leave policy that meets or exceeds the law’s obligations, including accrual, carryover and use, they do not need to provide any additional sick leave.

Collective Bargaining Agreements

The law permits a collective bargaining agreement providing comparable benefits to covered employees in lieu of leave provided by the law, so long as the agreement specifically acknowledges the provisions of the law.

Employer Records

Employers must maintain records for at least six years indicating the amount of sick leave provided to each employee. Upon the oral or written request of an employee, employers shall, within three business days, provide a summary of the amounts of sick leave accrued and used by the employee in the current calendar year and/or any previous calendar year.

Local Laws

The law permits cities with populations of 1 million or more to enact local laws meeting or exceeding the minimum hours and usage provisions in the state law. Any sick leave laws currently enacted by localities will not be limited or diminished by the state law. In New York City and Westchester, for example, employers with 100 or more employees are currently required to provide 40 hours of paid sick leave. Starting January 1, 2021, these employers will have to comply with the state law requiring them to provide 56 hours of paid leave to employees.

What This Means for Employers

While the law has yet to take effect and employers do not need to provide sick leave for employees until 2021, employers should begin determining their obligations under the law and reviewing existing policies for compliance. Many employers will need to prepare new polices entirely and, particularly because accruals begin in September of this year, it is prudent for employers to prepare these policies well before September 2020.

For More Information

If you have any questions about this Alert, please contact Eve I. Klein, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.