Beginning on April 1, 2014, NYC employers with at least 20 employees must provide employees with five days (40 hours) of annual paid sick leave. The Earned Sick Time Act (Intro. No. 97-A) (the “Act”), originally passed in May 2013 and confirmed with the City Council’s June 2013 vote overriding former Mayor Bloomberg’s previous veto of the Act, applies to individuals who have been employed by their employers for at least four months. Full-time and part-time workers (who work more than 80 hours in a calendar year) will earn one hour of sick time for every 30 hours worked, beginning at the commencement of employment or the effective date of the Act, whichever is later, which may be used after working for 120 days. For those employers with 15 to 20 employees, the new requirements of paid annual sick leave will take effect in October 2015. For employers lacking the requisite amount of employees, they too must provide five days of annual sick leave by April 1, 2014, albeit unpaid sick leave.
Discretion as to how many hours of sick time to use is left to the employee, but an employer may set a reasonable minimum increment for the use of sick time not to exceed four hours per day. Employees may use the sick time for the employee’s mental or physical illness, injury or health condition, care and treatment for the same or the need for preventative care, as well as for those same needs of a family member. Family members include the employee’s child, spouse, domestic partner, parent, as well as the child or parent of the spouse or domestic partner.
Employers must provide new employees with notice of their rights under the Act, including the accrual and use of sick time, the calendar year of the employer and the right to be free from retaliation. Notices will be drafted by the Department of Labor and must be posted at the employer’s place of business. Employers must keep documentation of compliance with the Act for two years.
The Act provides that employers cannot retaliate or threaten retaliation against an employee who requests or uses sick time, files a complaint for alleged violations of the Act, communicates with any person about any violation of the Act, participates in an administrative or judicial action regarding an alleged violation of the Act or informs any person of his or her potential rights under the Act. Employees who are allegedly aggrieved by an employer’s failure to comply with the Act may file a complaint with the New York City Department of Consumer Affairs, the agency charged with enforcement of the paid sick leave law.
The Act, which is similar to paid sick leave legislation passed in Portland, Oregon; San Francisco, California; and Washington, D.C., does not apply to participants of certain work-study programs, qualified scholarship programs, certain manufacturing employees, independent contractors, public employees and certain hourly professional employees.
It is important for employers to note that the Act does not require employers to allow the use of more than 40 hours of paid sick leave in a calendar year (even if the employee carried over unused paid sick time from the previous year). Nor does the Act require an employer to pay an employee for unused accrued sick time upon termination, resignation, retirement or separation from employment. An employer may also require certain reasonable advance notice of the intention to use sick time. Employers who already allow for paid leave such as paid time off, vacation or personal time, that meets or exceeds the Act’s other guidelines, may use that paid leave to comply with the Act as long as the employee may use that time for sick leave.
In January 2014, Mayor de Blasio announced a bill that would expand the scope of the Act to apply to all businesses with five or more employees in 2014, remove exemptions for the manufacturing sector and expand the class of family members workers can legally care for using their sick time.
Because of the Act, all NYC employers should review their companies’ sick leave policies to ensure compliance with the new sick leave law.