New York’s Paid Sick Leave Law Becomes Effective September 30, 2020
As previously reported here, New York State’s Paid Sick Leave Law (“NYS PSLL”), § 196-b of the New York Labor Law, becomes effective on September 30, 2020. Current employees will begin to accrue sick leave on September 30, 2020, but will not be able to use that leave until January 1, 2021. Employees hired on or after January 1, 2021 will be able to use the leave as it accrues.
The NYS PSLL requires employers to provide their employees with sick leave each year as follows:
Number of Sick Leave Days Per Year
Employers with four (4) or fewer employees and under $1 million in net income the previous tax year
Up to forty (40) hours of unpaid sick leave
Employers with four (4) or fewer employees and over $1 million in net income the previous tax year
Up to forty (40) hours of paid sick leave
Employers with between five (5) and ninety-nine (99) employees
Up to forty (40) hours of paid sick leave
Employers with one hundred (100) or more employees
Up to fifty-six (56) hours of paid sick leave
Employees will accrue paid sick leave at the rate of one (1) hour of paid sick leave for every thirty (30) hours worked. This is the same accrual rate used in the New York City Earned Safe and Sick Time Act (NYC ESSTA), the Westchester Earned Sick Leave Law and the Westchester Safe Leave Law. Leave under the NYS PSLL runs concurrently with, and is not in addition to, leave under the NYC ESSTA and the Westchester County laws.
Adopting New Policies:
Employers who currently do not have sick leave policies will need to adopt policies that provide sick leave in compliance with the new NYS PSLL.
If an employer has a policy that provides the same or more generous sick leave or other paid time off (PTO), the employer does not need to provide additional sick leave, as long as the leave the employer provides can be used for the same reasons as those provided under the NYS PSLL and the employer’s policy meets or exceeds the requirements of the NYS PSLL, including the accrual, carryover and use requirements, described in our prior article available here.
For example, a policy that allows sick leave to be used only for the employee’s own illness, and not that of a family member, would not comply with the NYS PSLL and would have to be amended.
Revising Existing Policies in NYC and Westchester
Employers in New York City and in Westchester County whose policies already comply with the NYC ESSTA and the Westchester leave laws will only need to revise the amount of leave they provide if the employer has one hundred (100) or more employees. For such employers, policies must be revised to allow employees to accrue up to fifty-six (56) hours of paid sick time, rather than the forty (40) hours required by the NYCESSTA and the Westchester laws. Employers can instead choose to “front load” leave by providing the maximum amount of sick leave at the beginning of the calendar year.
In addition, employers in New York City and in Westchester County whose policies already comply with the paid sick leave laws in those jurisdictions will need to revise their policies so that employees hired after January 1, 2021, can use sick leave as it is accrued, without the waiting time allowed for new employees in the NYCESSTA and Westchester County laws.
Documentation and Record Keeping
All employers in New York State should review their documentation and recordkeeping practices to ensure compliance with the new law. Under the NYS PSLL, when an employee makes a written or oral request for sick leave, an employer must provide a summary of the amount of sick leave accrued and used by the employee in the current or any prior calendar year within three (3) days of the request. Employers must preserve records of the amount of leave accrued by and provided to each employee for at least six (6) years.
Collective Bargaining Agreements
Any employer who is negotiating a new collective bargaining agreement that will go into effect on or after September 30, 2020 may include different sick leave provisions in the agreement, as long as the agreement includes a waiver specifically acknowledging the applicable section of the sick leave law (N.Y. Lab. Law § 196-b(9)) and provides comparable benefits, such as paid days off, leave, compensation, or other benefits.
Disclosure of Confidential Information Prohibited
We anticipate that the New York State Department of Labor (DOL) will issue guidance regarding the NYS PSLL soon to answer issues not addressed in the new law, including whether an employer may require documentation from a health care provider.
For example, the NYS PSLL states that an employer cannot require an employee to disclose confidential information regarding the nature of the employee’s or the family member’s mental or physical illness, injury, or health condition, or confidential details relating to domestic violence, a sexual offense, stalking, or human trafficking, as a condition of providing sick leave.
The NYS PSLL does not address whether that prohibition prevents employers from requesting any documentation (from a health care provider or other entity) to support the need for leave. In contrast, under the NYCESSTA employers may require documentation from a health care provider, but only when an employee has been absent for more than three consecutive days.
We will provide additional information as it becomes available.
Please reach out to any of our attorneys if you have any questions or would like our assistance in updating your policy to comply with the new law.