On April 3, 2020, as part of the 2021 budget process, NY State passed legislation requiring all employers in NY to provide sick leave for employees. For most employers, the mandatory sick leave will be paid. Employees must begin accruing sick leave as of September 30, 2020 and are eligible to begin taking the time as of January 1, 2021.
The new provisions apply based on employer size and income as follows:
- Employers with fewer than five employees and a net income less than $1 million must provide workers with up to 40 hours of job-protected unpaid sick leave a year.
- Employers with five to 99 employees, and those with fewer than five employees and net income of more than $1 million, must provide workers with up to 40 hours paid sick leave annually.
- Employers with 100 or more employees must provide workers with up to 56 hours of paid sick leave per year.
Rate of Pay
Where paid sick time is required, payment must be made at the employee’s regular rate of pay or the applicable minimum wage, if greater than the regular rate of pay.
Accrual vs. Allotment
The employer’s policy can provide time off as an accrual method, provided employees earn at least one hour of sick time for every 30 hours worked. Alternatively, the total annual sick leave can be provided as a lump sum allotment on the first of each year. If the allotment method is used for granting sick time, the employer may not later rescind or reduce the amount of time an employee was granted based on hours actually worked. If using the accrual method, accruals must begin on September 30, 2020 or the employee’s date of hire, whichever is later.
Employees must be permitted to use available sick time for any of the following:
- Mental or physical illness, injury or health condition of the employee or employee’s family member (as defined by the law), regardless of whether the illness, injury or health condition has been diagnosed or requires medical care at the time leave is requested.
- Diagnosis or need for medical diagnosis, care, treatment or preventative care related to the employee or employee’s family member’s mental or physical illness, injury, or health condition.
- Absence due to specified reasons where the employee or employee’s family member has been the victim of domestic violence, a family offense, a sexual offense, stalking or human trafficking. An employee is not entitled to take leave for this reason if the employee committed the domestic violence, family offense, sexual offense, stalking, or human trafficking, regardless of familial relationship.
An employer’s policy may establish reasonable rules related to the minimum increments for sick time usage, provided such increments do not exceed four hours.
Following the use of such sick time, employees must be returned to their same position and may not be discriminated or retaliated against for using such time.
Carry Over and Payout Upon Separation
Employees must be allowed to carry over unused sick time from year-to-year, however, the law allows small employers (less than 100 employees) to cap sick time usage at 40 hours per year; larger employers (100 or more employees) may cap sick time usage at 56 hours per year. Employers are also not required to pay employees for any earned but unused sick time upon separation from employment.
Records of sick leave provided to employees must be retained for at least six years, along with other payroll records. Additionally, upon verbal or written request by an employee, employers must provide a summary of the employee’s accrued and used sick leave, within three business days of such request.
Interaction with Other Leave Policies
Employers who already provide a paid time off (PTO) or sick leave policy that meets the minimum requirements of the state (in terms of accrual, carry over, use and other requirements) are not required to offer additional paid sick leave.
Additionally, existing paid sick leave benefits provided by a municipal corporation in effect as of September 30, 2020, will remain in effect. The law also states that it shall not prevent a city with a population of one million or more from enacting and enforcing local laws or ordinances that meet or exceed the standard or requirements for minimum hours and use set forth in this law.
Collective Bargaining Agreements
Employers with a collective bargaining agreement (CBA) entered into on or after the effective date of this law may provide a comparable benefit for the employees covered by the CBA in the form of paid days off. The paid days off may be in the form of leave, compensation, other employee benefits or some combination thereof. However, the CBA must acknowledge the provisions of the state’s paid sick leave law.
Next Steps for Employers
Although the DOL has yet to issue guidance or regulations on the new sick leave requirements, given that the law takes effect in less than six months, employers should begin to review their existing paid time off and sick leave policies to determine necessary updates and/or develop and prepare to implement new policies that meet the minimum requirements of the law.
HR Works will offer a sick leave policy in accordance with NY state’s requirements for all current HR Strategic Services (HRSS) and Virtual Helpline (VHL) clients. If you are not a current HRSS or VHL client, you may contact us at 1-877-219-9062 or firstname.lastname@example.org for more information on how HR Works can support your business.