Although the federal Family First Coronavirus Response Act (“FFCRA”) and state laws specifically tailored to the COVID-19 pandemic (such as the New York Quarantine Leave Law, which we discuss here have taken center stage throughout 2020, with the new year New York employers must be prepared to deal with the State’s new Paid Sick Leave Law and the City’s amendments to its existing Paid Safe and Sick Leave Law. These changes affect every employer, and will likely require policy and procedure amendments even where the employer already offers generous sick leave benefits.

New York State Sick Leave Law (“NYSLL”)

The NYSLL was signed into law by Governor Cuomo on April 3, 2020. Although the law was signed in the midst of the COVID-19 pandemic, the law is permanent and not specifically related to the coronavirus or related quarantine orders. Importantly, New York employees began to accrue sick leave on September 30, 2020. Employees have the right to use sick leave effective January 1, 2021, so to the extent employers have not already addressed the new law, they should do so immediately and ensure any missing accruals are correctly calculated retrospectively.

The NYSLL imposes different requirements based upon employer size. However, regardless of size, the law makes clear that employees begin accruing sick leave immediately (i.e. – there is no “waiting period”) and can use sick leave immediately after it is accrued or granted.

• Employers with 4 or fewer employees in a calendar year are required to provide up to 40 hours of unpaid sick leave per year. However, if the employer has a net income of greater than $1 million in the previous tax year, then the leave must be paid.
• Employers with 5 to 99 employees in a calendar year are required to provide up to 40 hours of paid sick leave per year.
• Employers with 100 or more employees in a calendar year are required to provide up to 56 hours of paid sick leave in a year.

For the purpose of determining the number of employees, the term “calendar year” strictly means the 12-month period from January 1 through December 31. However, for the use and accrual of leave, employers may set a “calendar year” to be any 12-month period.

Notably, these amounts establish the legal minimum that employers can provide, and employers are free to give their employees more generous sick leave benefits than those set by law.

The law provides two alternate ways of providing leave: (1) the accrual method; and the (2) front-loading method. Under the accrual method employees must accrue at least 1 hour of sick leave for every 30 hours worked. Under the front-loading method, employers can provide the amount of allocated leave at the beginning of the calendar year, and do not have to worry about counting hours. However, if an employer uses the front-loading method they cannot reduce sick time later on based upon the amount of hours the employee actually works. Regardless of the method an employer uses to accrue/grant sick leave, all unused sick leave must carryover into the next calendar year. Employers may however place a cap on employees’ use of sick leave in a given year, so long as it exceeds the legal minimum (listed above). The maximum increment an employer can establish for the use of sick leave is 4 hours.

Employers also need to be keenly aware of the permitted uses for sick leave under the NYSLL, as the circumstances may be different than those already describe in employers’ existing policies. The law allows employees to use sick leave:

• For their own, or their family member’s, mental or physical illness, injury or health condition;
• For their own, or their family member’s, need to obtain a diagnosis, care or treatment of a mental or physical illness, injury or health condition, or the need for preventative care;
• For their own, or their family member’s, needs related to being a victim of domestic violence, a sexual offense, stalking or human trafficking, including to:
  • Obtain social services;
  • Participate in safety planning, including temporarily or permanently relocating;
  • Meet with an attorney, or social worker, or participate in any criminal or civil proceeding;
  • File a complaint or domestic incident report with law enforcement;
  • Meet with a district attorney’s office;
  • Enroll children in a new school; or
  • Take other actions necessary to ensure the health or safety of the employee or the employee’s family member.

For the purposes of these allowable uses, “family member” is defined as 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” and “child” are meant to recognize biological relationships, as well as other familial relationships recognized by law (e.g. – adoption, fostering or acting in loco parentis).

Finally, employers should be aware that they may not require documentation from a doctor to confirm any use of sick leave unless the use of sick leave results in the employee being out for four or more consecutive workdays or shifts. If an employee is (lawfully) required to present a doctor’s note upon their return to work, employers may not require that the employee divulge confidential health information, including the nature of an illness, its prognosis, or treatment.

The State has published guidance and FAQs for employers and employees concerning the NYSLL, which are available on its website.

New York City Safe and Sick Leave Law (“NYCSSLL”) Amendments

The NYCSSLL has been on the books since 2014, however in light of the recent enactment of the State law, the City Council enacted certain amendments to the City law which went into effect on September 30, 2020, and which exceed the minimum requirements of the State law. These amendments include:

• Eliminating the ability for employers to institute a “waiting period” for the use of sick leave;
• Instituting a new posting requirement, which employers can satisfy by posting a copy of the City’s model notice;
• Requiring employers to give a copy of the notice to new hires upon their becoming employed;
• Requiring employers to reimburse employees for out of pocket expenses associated with any requirement to obtain a doctor’s note before returning to work; and
• Requiring employers to list on employees’ paystubs (or any other document issued each pay period) the amounts of accrued and used leave and the total balance of accrued leave.

Employers in New York City who have not yet acted in response to the NYCSSLL amendments should respond immediately and ensure they are compliant with the law moving forward.