Effective September 30, 2020, all New York State employers will have to comply with the requirements of § 196-b of the New York Labor Law requiring that employers provide all of their employees with paid or unpaid sick leave. Whether an employee is entitled to paid or unpaid leave, and the amount of leave an employee is entitled to, will depend on the employer’s size. Section 196-b is the first Statewide law mandating sick leave for employees. To be ready for this new leave entitlement, employers will have to ensure that they have a compliant policy and procedures in place to track leave accrual and use when the new law takes effect.
Employers will have to provide paid or unpaid leave depending on their size as follows:
For the purposes of determining an employer’s number of employees, a calendar year means the 12-month period from January 1 through December 31. For all other purposes, a calendar year means the 12-month period from January 1 through December 31, or a regular and consecutive 12-month period, as determined by the employer.
Paid leave must be paid at an employee’s regular rate of pay. Employers are free to provide employees sick leave, paid or unpaid, or adopt a paid leave policy that provides additional benefits beyond what the new law requires.
The new sick leave law allows employees to take leave for the following reasons:
“Family member” means 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” includes a biological, foster, step- or adoptive parent, 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.
The sick leave law requires that commencing on September 30, 2020, employees accrue sick leave at a rate of not less than one hour per every 30 hours worked, beginning at the start of employment or September 30, 2020, whichever is later. Alternatively, an employer can provide its employees with the total amount of required sick leave at the beginning of the calendar year, but if it does so, the amount of an employee’s sick leave cannot be reduced or revoked based on the number of hours actually worked during the calendar year.
Beginning on January 1, 2021, employees are entitled to begin using their accrued sick leave by making an oral or written request. An employer cannot as a condition of providing leave require the disclosure of confidential information relating to the reason for leave. Employers may set a reasonable minimum increment for the use of sick leave that cannot exceed four hours.
Unused sick leave must be carried over to the following calendar year, subject to the following limitations:
The new law does not require that employees be paid for unused sick leave upon termination, resignation, retirement or other separation from employment.
An employer that has a sick-leave or time-off policy that provides employees with an amount of leave that meets or exceeds the requirements of the new law, including its accrual, carryover and use requirements, is not required to provide employees with any additional sick leave.
The new law allows unions to negotiate terms and conditions of sick leave that are different from those required by the new law. It also allows collective bargaining agreements entered into on or after September 30, 2020, to provide comparable benefits in the form of paid days offs (consisting of leave, compensation, other benefits or some combination thereof) in lieu of the leave required by the new law. However, for both of the foregoing situations to apply, the collective bargaining agreement must specifically acknowledge the provisions of the new law.
Upon returning from leave, employees must be restored to the position they held prior to taking leave with the same pay and other terms and conditions of employment. Employers are also prohibited from discharging, threatening, penalizing, or in any other manner discriminating or retaliating against an employee who has exercised his or her rights under the new law.
Upon an employee’s oral or written request, an employer must provide the employee with 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, within three business days of the request.
The new law directs the New York State Department of Labor (DOL) to adopt regulations and issue guidance to effectuate its provisions, including standards for the accrual, use, payment and employee eligibility of sick leave. As of the date of this alert, no guidance or regulations have been issued.
To prepare for the new law, employers should consider doing the following before it becomes effective on September 30, 2020: