As a reminder, in follow-up to our Employment Law Spotlight Blog, effective September 30, 2020, New York state employers must provide New York state sick leave (NYSSL) to employees. Although the NYSSL law goes into effect September 30, and while employees should start accruing NYSSL on that date as prescribed by the new law, employees will not be entitled to use NYSSL until January 1, 2021. Practically speaking, this means employers should ensure that their employees are accruing the required NYSSL starting on September 30, should either develop or update their policies for the use of NYSSL, and should track accruals for employee use beginning January 1, if they plan to use an accrual system.

Below are some reminders regarding the features of this law.

Amount of Sick Leave

At a minimum, employers must provide the following amounts of NYSSL, based on their size and net income:

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

Employers are permitted to provide more sick leave than what is required by the law.

Permissible Uses of NYSSL

Employees may use NYSSL for absences related to the following: (1) a mental or physical illness, injury, or health condition of an employee or the employee’s family member, irrespective of whether such illness, injury or health condition has been diagnosed or requires medical care at the time the employee requests leave; (2) the diagnosis, care or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member, or a ward for whom the employee is the guardian; or (3) an employee or an employee’s family member who is a victim of domestic violence, a sexual offense, stalking or human trafficking in order to avail themselves of services or assistance.

Accrual of NYSSL

At a minimum, employees must accrue sick leave at a rate of not less than one hour per every 30 hours worked, beginning at the commencement of their employment or the effective date of the law (Sept. 30), whichever is later. Employees may, however, accrue sick leave at a greater rate than what is required or have their NYSSL front-loaded at the start of the year.

Usage of NYSSL

Employers must pay employees for the use of NYSSL at their regular rate of pay or the applicable minimum wage, whichever is greater. Employers may require employees to use NYSSL in a minimum increment of at least four hours. Employees may carry accrued, unused sick leave to the next calendar year, in which case the employer can limit the use of sick leave per calendar year to either 40 hours (for employers with fewer than 100 employees) or 56 hours (for employers with 100 or more employees). The NYSSL law does not discuss carryover requirements in the case where an employer chooses to front-load NYSSL. Upon separation of employment, employers are not required to pay an employee for unused NYSSL, regardless of the reason for the separation.

Employers with Existing PTO/Sick Leave Policies, Interplay with Local Laws and Collective Bargaining Agreements

Employers are not required to provide additional sick leave under the new law if they have an existing paid leave or paid time off (PTO) policy and they make available to employees an amount of leave that may be used for the same purposes and under the same conditions as specified by the NYSSL law, and if the policy satisfies the accrual, carryover and use requirements of the new law.

Several localities, such as New York City and Westchester County, have enacted their own paid sick leave laws. The NYSSL law makes clear that cities with populations of 1 million or more – such as New York City – may enact or enforce local laws or ordinances that impose stricter standards or requirements relating to sick leave.

Collective bargaining agreements entered into after the effective date of the law may, instead of providing NYSSL, provide a comparable benefit to covered employees by offering paid days off in the form of leave, compensation and/or other employee benefits.

Documentation and Other Requirements

This new law does not appear to have any specific written policy requirements, but employers should ensure that their existing or new sick leave policies do not run afoul of any of the requirements of the NYSSL law. If an employee requests the amount of sick leave they have accrued and used in a year, employers must provide that information within three business days.

The employer’s payroll records, which are required to be kept for six years under the New York Labor Law, must also include the amount of sick leave provided to each employee. Finally, the NYSSL law contains an anti-retaliation provision and provides job protection to employees who have requested or taken NYSSL.

The law gives the state’s labor commissioner the authority to adopt regulations and issue guidance regarding the new law. To date, the state has not issued any additional guidance on this law, but we will continue to monitor for any new developments.