New York Employers Will Need to Provide Paid Sick Leave Starting January 1, 2021

As part of the 2020 budget process, the New York State Legislature added a new Section 196-b to the Labor Law.  The new Section 196-b will require most New York employers to provide paid sick leave to their employees.  We expect the New York State Department of Labor to adopt regulations and issue other guidance containing information intended to help employers comply.  

Sick Leave Entitlement: 
Employer Size (in any calendar year)* Maximum Employee Entitlement  (in any calendar year)
4 or fewer employees and net income of $1M or less in previous tax year Up to 40 hours unpaid sick leave
4 or fewer employees and net income greater than $1M in the previous tax year Up to 40 hours of paid sick leave
5 – 99 employees Up to 40 hours of paid sick leave
100+ employees Up to 56 hours of paid sick leave

* For purposes of measuring the number of employees, “calendar year” means January 1 to December 31 of a given year.  For other purposes, “calendar year” can mean a twelve-month period from January 1 to December 31, or a regular and consecutive twelve-month period as determined by the employer.

Employers can provide additional sick leave, whether paid or unpaid, in excess of the statute’s requirements.  Employers are not required to provide any additional sick leave under the statute if they already have a sick leave or time off policy that provides employees with an amount of leave that meets or exceeds the requirements outlined above and that satisfies the accrual, use, and carryover requirements described below.

Accrual Rate:
Employees shall accrue sick leave at a rate of not less than one hour per every thirty hours worked.  Rather than relying on this accrual method, employers may elect to provide the total amount of sick leave required to fulfill its obligations at the beginning of the calendar year.  However, an employer that grants leave at the outset of the calendar year cannot later revoke or reduce the amount of leave based on the number of hours an employee actually works during the calendar year.  For example, if the employee works less than what the employer anticipated, and so would have earned less sick time under the accrual method than was granted at the outset of the calendar year, the employer cannot subsequently reduce the amount of leave available.

Accruals will begin September 30, 2020 (the effective date of the statute) or at the commencement of employment, whichever is later.  However, as discussed below, employees may not begin to use accrued paid sick leave until January 1, 2021. 

Absent further guidance from the New York State Department of Labor, it appears employees will be eligible to accrue and use sick leave immediately upon the commencement of employment, regardless of any probationary or orientation period the employer may implement.

Upon an employee’s oral or written request, employers must provide a summary of the amounts of sick leave accrued and used by the employee in the current and any previous calendar year.  Employers must provide requested summaries within 3 business days of the request.

Unused sick leave shall be carried over to the following calendar year.  Regardless of the carryover amount, employers with fewer than 100 employees can limit use of sick leave to 40 hours per calendar year, and employers with 100 or more employees may limit the use of sick leave to 56 hours per calendar year.

Employers are not required to pay out accrued unused sick leave upon termination, resignation, retirement, or other separation from employment.

Authorized Uses:
Beginning January 1, 2021, employees may request, orally or in writing, to use sick leave for the following reasons:

  • Mental or physical illness, injury, or health condition of the employee or employee’s family member, 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.

For purposes of determining eligibility for use, the following definitions apply:

  • “Family member” means child, spouse, domestic partner, parent, sibling, grandchild or grandparent; and the child or parent of an employee’s spouse or domestic partner.
  • “Parent” means biological, foster, step, or adoptive parent, legal guardian, or person who stood in loco parentis when the employee was a minor child.
  • “Child” means biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.

Employers can set reasonable minimum use increments, not to exceed four hours.

Employers cannot, as a condition of providing sick leave, require disclosure of confidential information relating to an employee’s or employee’s family member’s mental or physical illness, injury, or health condition, or information relating to an absence due to domestic violence, a family offense, a sexual offense, stalking, or human trafficking.

Payment of Leave:
Unless this law permits an employer to provide unpaid sick leave (according to the above chart), and the employer decides to do so, sick leave time will be paid at the employee’s regular rate of pay or the applicable minimum wage, if greater than the regular rate of pay.

Job Protection and No Discrimination or Retaliation:
Employees returning from sick leave are to be restored to their same position held prior to taking sick leave, and with the same pay and other terms and conditions of employment.  Employers are prohibited from discriminating or retaliating against any employee who requests or uses leave.

Collective Bargaining Agreements:
This law does not prevent parties from entering into a collective bargaining agreement on or after September 30, 2020, which, instead of providing the leave required under this new law, provides a comparable benefit in the form of paid days off in the form of leave, compensation, other employee benefits, or some combination thereof.  It also does not prevent a certified collective bargaining agent from negotiating sick leave that is different from this law.  In either situation, however, the collective bargaining agreement must specifically acknowledge the provisions of Section 196-b.

Interaction with Other State Laws:
Any city with a population of more than one million may enact a local law that meets or exceeds the requirements of Section 196-b.  Furthermore, any paid sick leave benefits already provided by a municipality cannot be limited or diminished as a result of this new law.  This means, for example, employers that must currently comply with New York City’s Paid Safe and Sick Time Act must continue to do so where the New York City law provides for greater benefits. 

The current recordkeeping requirements of the New York State Labor Law have been modified to require employers to maintain records showing the amount of sick leave provided to employees, for at least six years.

Next Steps:
Employers should review their current sick leave and paid time off policies to understand what benefits they are already providing, assess how currently offered benefits compare to the benefits required under this new legislation, and think about whether they need to revise their existing policies or whether they will provide the new paid sick leave in accordance with the legislation, on top of any existing benefits.  Given that employees will be eligible to begin accruing leave on September 30, 2020, it is important that employers take these steps soon, rather than waiting until year end or closer to the date when employees can actually start to use the accrued leave.

Harter Secrest & Emery’s Labor and Employment attorneys are here to answer any questions you may have and to assist your organization in complying with these new paid sick leave requirements.  If you would like more information on the regulations, contact any Labor and Employment team member at 585.232.6500 or 716.853.1616.

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