New York City Council Passes Act Requiring Mandatory Paid Sick Leave

by Sheppard Mullin Richter & Hampton LLP

On May 8, 2013, the New York City Council, by a 45-3 vote, passed the New York City Earned Sick Time Act which will require employers with 20 or more employees to provide paid sick leave to their employees (the “Sick Leave Act”). While Mayor Bloomberg has stated his intention to veto the Sick Leave Act, the 45-3 vote was more than sufficient to overcome the two-thirds majority needed to override the Mayor’s veto. In passing the Sick Leave Act, New York City has joined Connecticut, the District of Columbia, Portland, San Francisco and Seattle as the latest municipality requiring paid sick leave for employees.

The Sick Leave Act goes into effect on April 1, 2014, and will require all employers in New York City, who employ 20 or more employees, to provide its employees with at least 5 paid sick days each calendar year. On October 1, 2015, the scope of the Sick Leave Act will expand to all employers with 15 or more employees. Employers who do not have a sufficient number of employees to fall under the requirements of the Sick Leave Act are still required to provide their employees with five unpaid sick days each year.

Pursuant to the Sick Leave Act, employees are entitled to use sick time for absence from work due to: “(1) such employee’s mental or physical illness, injury or health condition or need for medical diagnosis care or treatment . . . ; (2) care of a family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or who needs preventative medical care; or (3) closure of such employee’s place of business . . . due to a public health emergency or such employee’s need to care for a child whose school or childcare provider has been closed . . . due to a public health emergency.”

Eligible employees are entitled to earn “a minimum of one hour of sick time for every thirty hours worked by an employee.” Sick leave begins to accrue “at the commencement of employment or on the effective date of [the Sick Leave Act].” However, while the accrual of sick leave begins at the commencement of employment, employees are prohibited from taking such sick leave until the employee has worked for the employer for at least four months. While employees are permitted to carry over unused sick time, employers are not required to provide an employee with more than forty hours of sick time in a calendar year. However, employers and employees can agree to eliminate the carryover of time, provided that (i) the employee is paid for any unused sick time at the end of the calendar year in which it was accrued, and (ii) the employer permits the employee to use the amount of paid sick time that the employee would be entitled to in the following calendar year.

The Sick Leave Act also contains a notice provision requiring employers to provide employees, at the commencement of their employment, with a written notice of the employee’s right to sick time payment under the Sick Leave Act. This notice is to include information concerning the “accrual and use of sick time, the calendar year of the employer, and the right to be free from retaliation and to bring a complaint.” The notice must be provided in English as well as the primary language of the employee. The Sick Leave Act requires that the New York City Department of Consumer Affairs create and make available form notices for use by employers.

In light of the Sick Leave Act, and the likelihood that the New York City Council can override a veto from Mayor Bloomberg, covered employers should review their sick leave policies to ensure compliance with the Sick Leave Act’s requirements as the legislation’s April 1, 2014, effective date approaches. Additionally, employers will need to prepare the appropriate employee notices as required by the Sick Leave Act. Finally, as the Sick Leave Act’s effective date approaches, we expect that additional guidance for compliance will be provided by the New York City Department of Consumer Affairs and we will provide updates as such information is made available.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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