May 09, 2013 General Employment Issues

NYC Council Approves Paid Sick Time Bill With Veto-Proof Margin

On May 8, 2013 the New York City Council approved the “Earned Sick Time Act.” This amendment to Section 2203 of the New York City Charter will require certain employers to provide paid sick leave to both full-time and part-time employees. While Mayor Michael Bloomberg has said he will veto the bill, the 45-3 initial vote suggests there will be more than enough votes to meet the two-thirds requirement to override a veto.

The law will go into effect April 1, 2014 and will require employers with 20 or more workers to provide five paid sick days per calendar year to employees who have worked for more than 80 hours in a calendar year.  The law also will require employers with fewer than 20 employees to provide five days of unpaid sick leave per calendar year.  A “calendar year” is defined as “a regular and consecutive twelve month period, as determined by an employer.”  One year later, the law will expand to require businesses with 15 or more employees to provide paid sick days.

Council Speaker Christine Quinn said manufacturing companies (which the bill defines as any business classified in section 31, 32, or 33 of the North American Industry Classification System) will be exempt because they are “struggling.”

Under the law employers who provide at least five days of any kind of paid time off  (e.g., personal or vacation days) that may be used for sick leave will not be required to provide additional sick leave.  For example, if an employer provides employees with five vacation days that can be used as sick days, the employer does not need to provide additional sick days, even if the employee decides to use the days as vacation days.  Similarly, employers with fewer than 20 employees (and in 2015, those with fewer than 15 employees) who are required to provide unpaid sick leave under the law will not be required to provide additional unpaid leave if the employer already provides employees with five days of leave of any kind, paid or unpaid, as long as the time off can be used for sick leave.

The bill states that the law will not apply to employees covered by a collective bargaining agreement if the provision of the law are expressly waived in the collective bargaining agreement and the agreement provides for a “comparable benefit” in the form of paid days off.  The bill goes on to state, however, that the “paid days off” can be in the form of “leave, compensation, or other employee benefits, or some combination thereof” (emphasis added).  Under the law “comparable benefits” can be vacation time, personal time, sick time, and “holiday and Sunday time pay at premium rates.”  Therefore, it appears that the “comparable benefits” need not be five paid days off and can instead be some other form of benefit.

For employees in the construction or grocery industry who are covered by a collective bargaining agreement the bill states that the provisions of the law can be “expressly waived” in the collective bargaining agreement.  For these industries, there is no mention of a requirement to provide a “comparable benefit.”

Employers who have collective bargaining agreements whose terms extend beyond April 1, 2014 and provide “comparable benefits” as described above should contact the unions with whom they have collective bargaining agreements and execute sideletters to satisfy the “express waiver” requirement.

Employees will have to work at least four months before earning paid time off. Employees covered by the law will accrue one hour of sick time for every thirty hours worked, up to a maximum of forty hours of sick time in a calendar year.

Employees can carry over unused, accrued sick time from one calendar year into the next, but employers are not required to provide more than 40 hours of sick leave in any calendar year.  Employers can chose to pay employees for unused sick time at the end of the calendar year, in which case no sick time will be carried over to the next year.  Employers are not required to pay employees for unused, accrued sick time upon termination of employment.

Work-study students and seasonal employees will be excluded. Employees can use the sick leave when they or an immediate family member (defined as a child, spouse, domestic partner or parent, or the child or parent of an employee’s spouse or domestic partner) get sick, as well as during public health emergencies.

The law will be enforced by the Consumer Affairs Department. 

San Francisco, Washington, D.C., Philadelphia, Milwaukee, Seattle, and Portland (Oregon) also require companies to provide paid sick days, and in 2011 Connecticut became the first state to pass a statewide paid sick time law.