For those employers who also have New York employees, heads up: a new leave law will apply to you starting this Wednesday.
New York has enacted a state-wide, permanent sick leave law, separate and apart from the state’s COVID-19 Quarantine Leave Law. In an unusual twist, this state law in some cases affords a greater benefit to employees than local sick leave law counterparts, such as New York City’s Earned Safe and Sick Time Act (ESSTA).
Effective September 30, 2020, New York’s Paid Sick Leave (NYPSL) Law goes into effect, which is likely to require changes to your NY policies. The new law applies to all private employers in New York, and requires paid or unpaid, job-protected sick leave as outlined below.
Length of Leave. The leave requirements vary based on the size of the employer’s workforce, and its net income:
|Leave Requirements Per Employee
|4 or fewer employees and net income of
$1 Million or less in the previous tax year
|40 hours of unpaid sick leave per calendar year
|4 or fewer employees and net income of more than $1 Million in the previous tax year
|40 hours of paid sick leave per calendar year
|5 to 99 employees (regardless of income)
|40 hours of paid sick leave per calendar year
|100 or more employees (regardless of income)
|56 hours of paid sick leave per calendar year
Notably, the statute leaves some critical questions unanswered, such as whether employer size will be determined on a statewide or nationwide basis, and whether subsidiaries will be aggregated for purposes of employee headcount or regarded separately.
Leave begins to accrue on September 30, 2020, or the employee’s date of hire, whichever is later, at the rate of one hour of leave per 30 hours worked, up to the annual caps set forth above. Employees may begin using accrued leave on January 1, 2021. Also, employers may choose to front-load the full amount of leave to employees at the beginning of the year. However, if the employer chooses to front-load the leave, it may not later reduce the amount of leave based on the employee’s actual hours worked. Paid leave must be compensated at the employee’s regular rate of pay, or the applicable minimum wage, whichever is greater.
Permissible Use of Leave. NYPSL may be used for the following “sick” and “safe” reasons:
- Mental or physical illness, injury or health condition of an employee or the employee’s family member (regardless of whether a diagnosis has been obtained, or medical care is required at the time the employee requests the leave);
- For the diagnosis, care or treatment of a mental or physical illness, injury or health condition of the employee or the employee’s family member, or need for medical diagnosis or preventive care for the employee or employee’s family member;
- When the employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking or human trafficking and seeks or obtains services, including shelter, attorney, or law enforcement services, or takes any other action to ensure the health or safety of the employee or family member, or to protect those who associate or work with the employee.
“Family Member” includes the employee’s child, spouse, domestic partner, parent, sibling, grandchild, grandparent, or the child or parent of an employee’s spouse or domestic partner.
Carry-Over. The employer must allow employees to carry over accrued but unused NYPSL from year to year. However, the employer can still cap the employee’s use of sick leave at 40 or 56 hours (as applicable) in a calendar year.
No Payout Required at Termination. Employers are not required to pay out accrued but unused NYPSL upon an employee’s separation from employment, regardless of whether the termination was voluntary or involuntary.
No Retaliation. The employer cannot retaliate, discriminate against, or otherwise penalize any employee for requesting or using NYPSL.
Existing Policies. Employers who already provide a sick leave or paid time off (PTO) policy that meets or exceeds the NYPSL requirements do not have to provide additional leave under the new law, provided that its existing policy also complies with the NYPSL accrual, carryover and use requirements.
Record Keeping. Beginning September 30, 2020, employers must track the amount of sick leave provided to each employee, and keep a record of this information in its payroll records for no less than 6 years. This requirement is an amendment to New York’s Wage Theft Prevention Act.
Remedies for Violation. Under the current language of the statute, the remedy for violations of the NYPSL Law, if any, remain unclear. The New York Department of Labor (NYDOL) is authorized to issue further guidance and regulations related to the new law, answering some of employers’ burning questions. As of the date of this post, however, no such guidance has been issued.
Employer Action Items. Employers should review their existing policies and make changes, if necessary, to ensure compliance with this new law. Employers with employees in New York City and Westchester County should also be mindful of the local sick leave requirements imposed by their respective jurisdictions. Employers should also ensure that they have a mechanism in place for tracking employee sick leave, and begin tracking as of September 30, 2020. Human Resources professionals should be trained to understand the new requirements and the interplay between the new NYPSL Law and existing local sick leave ordinances, where applicable. While employers await further guidance from the NYDOL, employers should consult legal counsel about implementing the new law based on currently available information.