NYS Mandatory Sick Leave
**UPDATE** New York State has released the following FAQs which can be found by clicking here.
Starting on September 30th, 2020, all employees in New York will begin to accrue protected sick leave. This leave will not be available for use until January 1, 2021. Even newly hired employees can use accrued sick leave as there’s no waiting period for use.
The amount of required leave that an employer must provide is determined by the number of employees and net income of the business.
- Employers with four or fewer employees in any calendar year and a net income of $1 million or less are required to provide employees with up to 40 hours of unpaid sick leave.
- Employers with four or fewer employees in any calendar year and that have a net income of greater than $1 million dollars in the previous tax year are required to provide employees with up to 40 hours of paid sick leave.
- Employers with between five and 99 employees in any calendar year are required to provide employees with up to 40 hours of paid sick leave each calendar year.
- Employers with 100 or more employees in any calendar year are required to provide employees with up to 56 hours of paid sick leave each calendar year.
If you already provide your employees with sick leave or paid time off (PTO) that meets or exceeds the requirements and satisfies the accrual, carryover, and reasons for use defined below – then you’re likely in good shape. Nothing in this law prevents an employer from providing more sick leave, paid or unpaid, in excess of what is required as part of the paid sick leave law. However, once it’s provided, employers can’t reduce or revoke sick leave based on the number of hours the employee actually works during the calendar year.
The law clarifies that a calendar year will be defined as the 12-month period from Jan. 1 to Dec. 31.
For all other purposes, such as usage and accrual, a year is defined as above or as a regular and consecutive 12-month period, as determined by the employer.
Employees must accrue sick leave at a rate of not less than one hour per every 30 hours worked, beginning at the start of their employment or by Sept. 30, 2020, whichever is later. Employers have the option to provide the full amount of sick leave in a lump sum at the beginning of the calendar year.
Some employers choose to implement “front-loaded” leave policies, under which employees receive their full allotment of annual paid leave at the beginning of the year or start of their employment. Although these employees are not technically accruing leave in accordance with the law’s minimum accrual schedule, this practice is explicitly permitted so long as (1) the employees receive the same amount or more leave than they would have accrued during the year under the law, and (2) the employer does not make any deductions from the leave allotment if the employee works less hours than anticipated
Employers must permit unused sick leave to carry over to the subsequent calendar year, but can limit an employee’s sick leave usage to 40 hours (for employers with 99 or fewer employees) or 56 hours (for employers with 100 or more employees) during each calendar year.
Employers are not required to pay any employees accrued but unused leave when employment ends.
An employer may set a minimum increment of time in which sick leave may be used, but the minimum increment can be no less than four hours. Employees cannot be required to use leave in full day increments or larger blocks of time.
While some employees may begin accruing sick leave as early as September 30, 2020, no employee may use sick leave before January 1, 2021. Notably, after January 1, 2021, the law permits employees to use sick leave immediately upon accrual, even if hired after January 1, 2021.
Employers cannot require employees who request to use sick leave to disclose any confidential information pertaining to the request.
Sick leave is job-protected under the new law. Employees utilizing sick leave must be returned to the same position they held immediately prior to the use of sick leave with the same pay and other terms and conditions of employment.
For purposes of the law, sick leave is defined broadly to include not only traditional sick leave usage, but also for reasons more commonly known as safe leave. Thus, sick leave may be taken for:
- An employee’s or employee’s family member’s mental or physical illness, injury, or health condition, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that the employee requests the sick leave;
- The employee’s or employee’s family member’s diagnosis, care, or treatment of a mental or physical illness, injury or health condition, or for preventive care; or
- 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, to relocate temporarily or permanently, or to take other actions to increase the safety of the employee or 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 law defines family member as an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, and the 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 biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.
Record Keeping Requirements
Employers must track the amount of sick leave provided to employees. That information must be kept for at least six years, together with other information that an employer is obligated to keep and maintain as part of its payroll records; those records must now include the amount of sick leave provided to each employee.
An employee may request, verbally or in writing, a summary of the amount of sick leave they have accrued and used in the current calendar year or any previous calendar year. The law requires that an employer provide that information to a requesting employee within three business days.
Employers cannot discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee because that employee has exercised their sick leave rights under the law.
We anticipate additional guidance and regulations from the state (for example, a required poster and a webpage with FAQs) prior to January 1, 2021, but the information currently available is limited to the text of the statute. We will continue to send updates as more information is released by New York State.