New York City Passes Earned Sick Time Act

by Ballard Spahr LLP

New York City has become the latest U.S. city to require paid sick leave for many local private sector employees. On May 8, 2013, the New York City Council passed the Earned Sick Time Act by a 45-3 vote. Mayor Bloomberg vetoed the bill on June 7, 2013, but the City Council overrode the veto on June 27. As a result, the City joins San Francisco, Washington, D.C., Seattle, Portland, and the State of Connecticut in imposing sick leave obligations on employers.

Although touted as a "sick" leave act, the Act actually covers a broader range of absences. The Act likely will require employer modifications to existing sick/leave policies to ensure compliance with its accrual and usage provisions.   

A detailed summary of the Act's main provisions is available here. Some key provisions include:

  • Covered Employers

Private sector employers with employees working in New York City are covered. Employers with 20 or more employees are required to provide paid sick time, although this threshold could drop to 15 employees; other covered employers are required to provide unpaid sick time. 

  • Accrual

Employers must provide covered employees (those who work at least 80 hours in the calendar year) with one hour of sick leave for every 30 hours worked (i.e. as much as 8.75 days for an eight-hour/day, 40-hour/week employee). Employees can use up to 40 hours per calendar year. Sick leave must carry over from year to year, but remains subject to the 40-hour per year limit, or can be paid out at the end of the year. Accrued and unused sick leave need not be paid upon termination of employment. 

  • Usage

Employers may set a minimum usage amount per occurrence, but not more than four hours per day. Sick leave can be used for three purposes: the employee's own illness, injury, or health condition, including preventive care; the illness, injury, or health condition of a family member who needs care, including preventive care; or closure of businesses or schools due to a public health emergency. Family members are defined broadly to include child, spouse, domestic partner, parent, or the child or parent of an employee's spouse or domestic partner. 

  • Existing Policies

An employer with a paid leave policy—such as PTO, vacation, or personal days—that provides an employee with enough paid leave to meet the accrual requirements, and that allows such paid leave to be used "for the same purposes and under the same conditions as paid sick leave," is not required to provide additional paid sick time. 

  • Notice

An employer may require reasonable notice of the need to use sick time, which means seven days in the case of foreseeable situations, and as soon as practicable in unforeseeable situations.

  • Documentation

An employer may require reasonable documentation that sick time is authorized, which is limited to a document signed by a licensed health care provider indicating the need for the amount of sick time taken.

  • Disciplinary Action

The Act contains non-retaliation provisions for employees who take sick leave. This draws into question whether and how employers can enforce attendance policies, particularly no-fault policies, which award points for occurrences of sick leave that trigger steps of discipline and, eventually, termination.

  • Collective Bargaining Agreements

The Act does not apply to employees covered by a collective bargaining agreement if such provisions are expressly waived in the agreement and the agreement provides for a "comparable benefit" in the form of paid days off. A "comparable benefit" could take the form of leave, compensation, other employee benefits, or some combination thereof, including but not limited to vacation, personal time, sick time, and holiday and Sunday time pay at premium rates. In the case of employees covered by a valid collective bargaining agreement in effect on the Act’s effective date, the Act takes effect on the expiration date of the collective bargaining agreement.

  • Notice to Employees

Upon commencement of employment, employees must receive notice of their rights under the Act. The content of these notices must include not only the substantive requirements for sick time, but also must address non-retaliation and the right to file an administrative complaint.

  • Recordkeeping & Confidentiality

Employers are required to retain records documenting compliance with the Act.

Although the Act is not scheduled to take effect until April 1, 2014?a date that could be delayed depending on the economic state of New York City, as reflected in Federal Reserve Bank indices referenced in the Act?employers should begin to review their policies and procedures to determine whether they comply.

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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