Apr 13, 2020 COVID-19 Guidance

New York State Enacts Sick Leave for Employees Beginning January 1, 2021

On April 3, 2020, Governor Cuomo signed the New York State Budget for fiscal year 2020 which includes a provision requiring sick leave for all employees. The amount of paid sick leave required varies based upon the size and income of the employer. Employees cannot use the paid sick leave until January 1, 2021, but current employees will begin accruing leave as of September 30, 2020. The sick leave provisions are the same as those originally included, but then withdrawn, as part of the COVID-19 sick leave package, as previously reported here.

The new § 196-b of the New York Labor Law will require employers to provide their employees with sick leave each year as follows:

Employer Size 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

For purposes of determining the size of the employer, the law uses a calendar year. To determine the amount of leave to be provided to an employee, an employer can use a calendar or fiscal year, or any other twelve-month period (e.g., measured from date of hire).

Accrual Method. For employers using an accrual method, employees will begin to accrue sick leave on September 30, 2020, or upon commencement of employment, whichever is later. 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, but the New York State law will provide more paid sick leave for employers with 100 or more employees, requiring a change in policy for those employers.

Frontloading Method. Rather than requiring accrual over time, employers can instead choose to “frontload” leave by providing the maximum amount of sick leave at the beginning of the calendar year. However, employers using this method cannot then reduce or revoke such sick leave based on the number of hours actually worked by the employee.

Timing of Use of Sick Leave. As noted above, employees cannot use sick leave until January 1, 2021. Employees hired after January 1, 2021, will be able to use sick leave as it is accrued, with no waiting time, another departure from the New York City and Westchester laws.

Permissible Uses of Sick Leave. Employees can use sick leave for the following reasons:

  • For a mental or physical illness, injury, or health condition of an employee or an employee’s family member, regardless of whether such illness, injury or health condition has been diagnosed or requires medical care at the time the employee requests leave;
  • For the diagnosis, care, treatment of, or to seek preventive care for, a mental or physical illness, injury or health condition of, an employee or an employee’s family member;
  • When an employee or an employee’s family member has been the victim of domestic violence, a family offense, a sexual offense, stalking, or human trafficking and the employee is absent from work
    • to obtain services from a domestic violence shelter, rape crisis center, or other services program;
    • to participate in safety planning, to temporarily or permanently relocate, or to take other actions to increase the safety of the employee or the employee’s family member;
    • to meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in a criminal or civil proceeding;
    • to file a complaint or domestic incident report with law enforcement;
    • to meet with a district attorney’s office;
    • to enroll children in a new school; or
    • to take any other actions necessary to ensure the health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.

Family Member Defined. An employee’s “family member” includes:

  • child (biological, adopted, or foster child, a legal ward, or child of an employee standing in loco parentis)
  • spouse
  • domestic partner
  • parent (biological, foster, step- or adoptive parent, or legal guardian of an employee, or a person who stood in loco parentis when the employee was a minor child)
  • sibling
  • grandchild
  • grandparent

This definition of “family member” is narrower than the definition included in the NYC ESSTA, which also includes “individuals related by blood to an employee” or any “individual whose close association with the employee is the equivalent of a family relationship.” New York City employers will still be required to use the broader definition included in the NYC ESSTA.

Disclosure of Confidential Information Prohibited. 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 law does not address whether an employer may request documentation from a healthcare provider, in contrast to the NYC ESSTA which states that employers may only require documentation from a healthcare provider when an employee has been absent for more than three consecutive days.

Minimum Increments. Employers can set a minimum increment for the use of sick leave not to exceed four (4) hours.

Compensation During Sick Leave. Employees are required to be compensated at the employee regular rate of pay.

Permitted Carryover of Unused Sick Leave. Employers must allow employees to carry over accrued, unused sick leave, but can limit the total amount of sick leave used to forty (40) hours (for employers with fewer than one hundred (100) employees) or fifty-six (56) hours (for employers with more than one hundred (100) employees).

No Payout of Unused Sick Leave. No payout of accrued, unused sick leave is required at the end of a year or when an employee is terminated, resigns, retires or is otherwise separated from employment.

Employee Protections. Employers are prohibited from discharging, threatening, penalizing, discriminating or retaliating against an employee because the employee has taken sick leave pursuant to the new law. Additionally, upon return to work, an employee must be returned to the same position the employee held prior to the sick leave.

Existing Sick Leave Policies. If an employer has a policy that provides the same or more generous sick leave, the employer does not need to provide additional sick leave, as long as the sick leave can be used for the same reasons as those provided under the new law and the policy meets or exceeds the requirements of the law, including the accrual and carryover and use requirements. For example, a policy that allowed sick leave to be used only for the employee’s own illness, and not that of a family member, would not comply with the new law and would have to be amended.

Collective Bargaining Agreements. A collective bargaining agreement entered into after September 30, 2020 (the effective date of the law), may include different sick leave provisions, 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.

Recordkeeping. An employer must preserve records of the amount of leave accrued by and provided to each employee for at least six (6) years. After a written or oral request by an employee, 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.

Local Laws. Cities with a population of one million or more are permitted to enact a local law that meets or exceeds the minimum requirements of the hours and usage for sick leave in the state law. Additionally, any local sick leave law (such as NYC ESSTA) will not be diminished or preempted as a result of the new law.

Rules and Regulations. Further guidance will be issued by the Commissioner of the Department of Labor.

We will provide additional information as it becomes available.

Next Steps. Employers should review their current sick leave policies to determine whether the policies comply with the new law. Employers who are negotiating collective bargaining agreements that will go into effect on or after September 30, 2020, should take the requirements of the new law into account when negotiating leave provisions. Employers should also review recordkeeping practices to ensure compliance with the new law.

Please reach out to any of our attorneys if you have any questions or wish to update your policies in anticipation of the effective date of the law.