New York State Paid Sick Leave Law (“NY PSLL”)

Amount of Leave

The amount of sick leave varies based on an employer’s size and net income in a calendar year:

• Employers with four or less employees and a net income of $1 million or less must provide up to 40 hours of unpaid sick leave per calendar year.
• Employers with 5-99 employees and employers with 4 or less employees but a net income of more than $1 million must provide at least 40 hours of paid sick leave per calendar year.
• Employers with 100 or more employees must provide up to 56 hours of paid sick leave.

Prior to the ESSTA amendments, New York City employers with 5 or more employees had to provide up to 40 hours of paid sick and safe leave, while employers with 4 or fewer employees had to provide unpaid sick and safe leave.

Accruals

Calendar Year

For the purpose of counting the total number of employees, calendar year means the 12-month period from January 1 through December 31 of any given year.

Eligibility/Waiting Period

Employees are immediately eligible to accrue sick leave and may begin using sick leave as soon as sick leave hours are accrued, beginning Jan. 1, 2021.

The ESSTA amendments eliminates:

• The requirement that employees work 80+ hours per calendar year in New York City; and
• The 120-day mandatory waiting period for new employees to use their sick leave.

Employees who are subject to the new requirements under the ESSTA, however, may not begin using their additional leave provided by the amendments until Jan. 1, 2021.

Permitted Uses

Employees may use accrued leave for:

• The employee’s or employee’s family member’s mental or physical illness, injury, or health condition regardless of whether it has been diagnosed or requires medical care at the time of the request for leave;
• The diagnosis, care, or treatment of the employee’s or employee’s family member’s mental or physical illness, injury or health condition, or need for medical diagnosis or preventative care; and
• An absence from work for reasons relating to an employee’s or employee’s family member’s experience with domestic violence, a sexual offense, stalking, or human trafficking.

Whether accrued sick leave is available for business or school closures during a declared public health emergency is fact specific, and requires a consideration of the type of health emergency, the risk of contagion, and other health considerations.

Employees may use accrued leave for all the same reasons allowed under the NY PSSL.

Unlike the NY PSLL, the ESSTA expressly permits the use of sick time due to a closure of the employee’s place of business resulting from a public health emergency, or the employee’s need to care for a child whose school or childcare provider has been closed due to a public health emergency.

Carryover/Frontloading

Employees must be allowed to carryover any accrued, unused sick time into the following calendar year.

Although employers may choose to frontload the maximum amount of sick leave at the beginning of each calendar year, it is unclear whether the carryover requirement under the NY PSLL eliminates the carryover requirement as it would under ESSTA.

Employees must be allowed to carryover up to 56 hours of accrued, but unused, safe and sick leave to the next calendar year. An employer who utilizes a frontloading system, however, is not required to allow carryover.

Employee Notice Obligations of Their Need for Leave

Employers may require that employees provide up to seven days’ of advance notice if the need for leave is foreseeable. If the need for leave is not foreseeable, then notice must be provided as soon as practicable.

Employer Notice of Employee Rights

Employers must provide a written notice of safe and sick leave rights to employees when they begin employment or when their rights change. Under the amendments to ESSTA, employers with 100 or employees and employers of domestic workers must provide an updated Notice of Employee Rights to employees by the later of Jan. 1, 2021, or the date the employee commences employment. The updated Notice of Employee Rights must also be posted in a conspicuous place by Jan. 1, 2021.

Employers may distribute the Notice in English or the employee’s primary language, if the translated notice is provided by the New York City Department of Consumer and Worker Protection.

Documentation for Leave

Employers may require an employee whose sick leave lasts more than three consecutively scheduled workdays to provide medical or other verification. Employers cannot require employees to pay for any costs or fees associated with obtaining the requisite documentation or verification.

Similarly, an employer may require an employee who uses more than three consecutive workdays as sick leave to provide verification or documentation for that leave but only if that requirement is part of a written sick leave policy that the employee received prior to using the sick leave.