New York City employers: On April 1 – were you in compliance with the Earned Sick Time Act?

by DLA Piper

As of yesterday, the New York City Earned Sick Time Act requires almost all New York City employers to provide employees with up to 40 hours of sick leave each year.  

Many employers’ existing time off policies (such as vacation, personal leave and PTO policies) may satisfy the requirements of the law so long as the time off may be used for the purposes of sick leave and the policies otherwise meet or exceed the law’s requirements. 

For employers wondering whether their policies are in compliance, we have prepared this brief outline of the law’s key requirements. 

Paid or unpaid leave:  Employers with 5 or more employees who are hired to work more than 80 hours a calendar year in New York City must provide eligible employees with paid sick leave.  Employers with less than 5 employees must provide unpaid sick leave.

Eligible employees:  The law covers employees who work more than 80 hours a calendar year in New York City and includes full-time and part-time employees as well as supervisors and managers. 

Sick leave entitlement:  Employers must provide employees up to 40 hours of sick leave every calendar year, although they may provide more generous leave.  “Calendar year” means any consecutive 12-month period of time as determined by an employer. 

Sick leave accrual:  Sick leave must accrue at the rate of 1 hour for every 30 hours worked, up to the maximum of 40 hours per calendar year.  Employees must begin to accrue sick leave on April 1, 2014 or their first day of employment, whichever is later, and may begin to use accrued sick leave on July 30, 2014 or 120 days after their first day of employment, whichever is later.

Reasons for leave:  Employees may use sick leave to cover absences from work:  due to the employee's mental or physical illness, injury or health condition, or need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or need for preventive medical care; to care for a family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or who needs preventive medical care; or due to the closure of an employee’s place of business by order of a public official due to a public health emergency or such employee’s need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.  “Family member” is defined to mean an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, or the child or parent of an employee’s spouse or domestic partner.

Carryover:  Employers must permit employees to carry over up to 40 hours of unused sick leave to the next calendar year; however, employers only are required to allow employees to use up to 40 hours of sick leave per calendar year.  Alternatively, an employer may choose to pay out an employee for unused accrued sick leave at the end of the calendar year.

Payment on termination:  There is no requirement that an employer pay out unused accrued sick leave to employees whose employment is terminated for any reason.

Notice requirements:  Employers must give written notice of employees’ rights under the law to new employees when they commence employment and existing employees by May 1, 2014.  Notices are available here.  The notice must be provided to employees in English and the employee’s primary language if the translation is available on the Department of Consumer Affairs’ website.

Collective bargaining agreements:  The Act does not apply to any employee covered by a valid collective bargaining agreement if (1) the agreement expressly waives the Act’s provisions and provides for a comparable benefit ; or (2) the agreement is in effect on April 1, 2014, in which case the employee becomes covered by the Act beginning on the date that the agreement terminates.

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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