Employers in New York should be aware of the state’s new paid sick leave law, which was enacted on April 3, 2020 and went into effect on Wednesday, September 30. This state-wide law includes employers in New York City and Westchester County where preexisting paid sick leave laws remain in effect. Notably, unlike many other leave laws passed during the COVID-19 pandemic, the state law will have permanent effect.

Under the new law, the amount of leave that an employer must provide varies based on how many employees it has and, in some cases, on the employer’s net income:

• Employers with 100 or more employees must provide up to 56 hours of paid sick time per year;
• Employers with fewer than 100 employees must provide 40 hours of paid sick leave;
• Employers with fewer than five employees and a net income in excess of $1 million in the previous tax year must provide 40 hours of paid sick leave; and
• Employers with fewer than five employees and a net income of less than $1 million in the previous tax year must provide 40 hours of unpaid sick leave.

The law does not address whether, in applying the employee thresholds, employers should count only employees in New York, or employees everywhere.

Paid sick leave accrues at a rate of one hour per every 30 hours worked, up to the available accrual, unless an employer elects to frontload all sick time at the beginning of the year. If an employer elects to frontload sick leave for its employees, it cannot reduce the amount of sick leave available to employees later in the year if the employees do not work sufficient hours to accrue the frontloaded amount. Employers must allow employees to carry all unused sick leave over to the following year, but an employer may limit the amount of leave taken each year (40 hours for employers of fewer than 100 employees, 56 hours for employers of 100 or more employees). Employers may also set a “reasonable” minimum increment for each use, not to exceed 4 hours. Employers are not required to pay out unused sick leave at the end of employment.

Employees can take leave for a number of reasons, including:

• For the employee’s, or a covered family member’s, mental or physical illness, injury, or health condition, regardless of whether that illness, injury, or health condition has been diagnosed or requires medical care at the time that the employee requests leave;
• For the diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of, or need for medical diagnosis of, or preventive care for, the employee or a covered family member; or
• Certain absences related to an employee’s, or a covered family member’s, status as a victim of domestic violence, family offense, sexual offense, stalking, or human trafficking.

The term “family member” is broadly defined under the law to include an employee’s child (biological, adopted, or foster child; a legal ward; or a child of an employee standing in loco parentis), spouse, domestic partner, parent (biological, foster, step, or adoptive parent; legal guardian; or person who stood in loco parentis when the employee was a minor child), sibling, grandchild, or grandparent, and the child or parent of an employee’s spouse or domestic partner. Notably, this definition is broader than New York’s Paid Family Leave Law because it extends to siblings, and broader than the federal Family Medical Leave Act because it extends to siblings and grandparents.

In addition, employers should be aware that, under the new law:

• An employer is required to track the amount of sick leave provided to each employee and maintain this information in its payroll records for six years. An employee may request in writing or verbally that an employer provide a summary of the amount of sick leave accrued and used by the employee, which the employer must provide within three business days of the request.
• Employers may not require an employee to disclose any confidential information in verifying his or her need to take leave. (“Confidential information” is undefined in the statute.)
• Employees have a right to reinstatement and protections against retaliation for exercising rights under the new law.

Although the law is currently in effect, and employees begin accruing on September 30, 2020, employees may not use leave under the law until January 1, 2021. Nonetheless, employers selecting an accrual method (rather than frontloading) must be prepared to start tracking accrual, providing information upon request regarding accrual, to carry over accrued time for employee use starting January 1, 2021. Likewise, employees may be required to display a poster, or otherwise provide notice of employee rights under the law, once such notice is promulgated by the New York State Department of Labor. Employers should also review their employee handbooks to ensure that existing sick leave policies meet the requirements of the law.

The New York State Department of Labor Commissioner is authorized to adopt regulations and guidance to effectuate the law, and New York employers should continue to monitor this blog for updates. 

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