NYS Employers Must Prepare to Comply with New Sick Leave Law

New York State Employers Must Prepare to Comply with New Sick Leave Law on September 30, 2020

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.

Leave Amounts and Paid/Unpaid Leave

Employers will have to provide paid or unpaid leave depending on their size as follows:

• Employers with four or fewer employees in any calendar year with a net income up to $1 million in the previous tax year will have to provide employees with up to 40 hours of unpaid sick leave in each calendar year;
• Employers with four or fewer employees in any calendar year with a net income greater than $1 million in the previous tax year will have to provide employees with up to 40 hours of paid sick leave in each calendar year;
• Employers with between five and 99 employees in any calendar year, regardless of income, will have to provide employees with up to 40 hours of paid sick leave each calendar year; and
• Employers with 100 or more employees in any calendar year will have to provide employees with up to 56 hours of paid sick leave each calendar year.

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.

Reasons for Leave

The new sick leave law allows employees to take leave for the following reasons:

1. A mental or physical illness, injury or health condition of an employee or an employee’s family member, regardless of whether such illness, injury or health condition has been diagnosed or requires medical care at the time that the employee requests such leave;
2. The diagnosis, care or treatment of a mental or physical illness, injury or health condition of – or need for medical diagnosis of, or preventive care for – an employee or an employee’s family member; or
3. 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:
   1. To obtain services from a domestic violence shelter, rape crisis center or other services program;
   2. To participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members;
   3. 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;
   4. To file a complaint or domestic incident report with law enforcement;
   5. To meet with a district attorney’s office;
   6. To enroll children in a new school; or
   7. 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.

“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.

Leave Accrual

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.

Use of Sick Leave

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:

• An employer with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year; and
• An employer with 100 or more employees may limit the use of sick leave to 56 hours per calendar year.

The new law does not require that employees be paid for unused sick leave upon termination, resignation, retirement or other separation from employment.

Existing Leave Policies and Collective Bargaining Agreements

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.

Return-From-Leave Requirements and Job Protections

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.

Provision of Leave Use Information to Employees

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.

Regulations

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.

Next Steps for Employers

To prepare for the new law, employers should consider doing the following before it becomes effective on September 30, 2020:

• Review and update current sick leave policies as needed or, where appropriate, adopt a compliant policy;
• Train human resources professionals, supervisors and managers on the law’s requirements; and
• Review the DOL’s regulations and guidance when issued, and take any steps necessary to comply with them.

Additional Assistance

For further assistance, please contact a member of our Labor & Employment Practice Team or the Phillips Lytle attorney with whom you have a relationship.