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Not Another Coronavirus Alert: NYS Passes Paid Sick Leave Expansion

By Katherine L. Wood, Esq.

Earlier this month amongst a deluge of coronavirus-related updates and as part of the annual state budget, Governor Cuomo passed amendments to the New York State Labor Law.  These amendments mandate that employers provide paid sick leave to their employees and will go into effect on January 1, 2021.  Employers should note that this new leave law is entirely unrelated to recently passed coronavirus leave laws, and these amendments will be a permanent update to the Labor Law.

The amount of sick leave an employer must provide and whether the leave is paid or unpaid depends on the employer’s size as follows:

Employer Size

Sick Leave That
Must Be Provided

4 or fewer employees and a net income of less than $1 million in the previous tax year

Up to 40 hours (5 days) of unpaid sick leave every year

4 or fewer employees and a net income of more than $1 million in the previous tax year

Up to 40 hours (5 days) of paid sick leave every year at the employee’s regular rate of pay

5-99 employees

At least 40 hours (5 days) of paid sick leave every year at the employee’s regular rate of pay

100 or more employees

At least 56 hours (7 days) of paid sick leave every year at the employee’s regular rate of pay

 

Accrual and Use

Employees will begin accruing paid sick leave on September 30, 2020.  Paid sick leave accrues at a rate of 1 hour per every 30 hours worked up to the 40 or 56 hour maximums referenced in the chart above.  Employees cannot begin using paid sick leave under this law until the law goes into effect on January 1, 2021

Rather than utilizing the accrual method, employers may frontload the employee’s paid sick leave time at the beginning of the calendar year.  However, if an employee chooses to frontload the leave time, the employer cannot reduce or revoke the employee’s leave time based on the number of hours the employee actually works.

As always, employers can feel free to provide paid sick leave above and beyond the minimum set by the new law. 

Employers must allow accrued, unused sick leave time to carry over from year to year.  However, employers may cap the amount of sick leave time that may be accrued at the 40 or 56 hour minimums set forth above.  Additionally, there is no requirement that this sick leave time must be paid out to employees in the event the employment relationship ends.

The employer may set a minimum increment for using sick leave, but the minimum increment cannot be greater than 4 hours.

Qualifying Reasons for Leave

Employees may use sick leave under the new law for the following reasons:

  • For the employee’s or the employee’s family member’s mental or physical illness or health condition, regardless of whether it has been diagnosed or requires medical care;
     
  • For the employee’s or the employee’s family member’s diagnosis, care, or treatment of a mental or physical illness or health condition; and
     
  • For numerous specified reasons where the employee or the employee’s family member is a victim of domestic violence.

“Family member,” for the purposes of determining sick leave eligibility, is defined as:

  • Child (including biological, adopted, or foster children);
  • Spouse;
  • Domestic partner;
  • Parent (including biological, step, foster, or adoptive parents);
  • Sibling;
  • Grandchild;
  • Grandparent;
  • The child or parent of the employee’s spouse or domestic partner (i.e. stepchildren and parents-in-law).

Employers must provide leave under the new law for any of the qualifying reasons listed above upon oral or written request from the employee.

Interestingly, the law states that employers cannot require employees to provide “confidential information” relating to illness, injury, health conditions, domestic violence, sexual offenses, stalking, or human trafficking as a condition of providing sick leave.

Job Protected Leave

Employers should keep in mind that the new sick leave law is job protected, meaning that the employee must be restored to the same position he/she held prior to taking sick leave at the same rate of pay and with the same benefits.  Like many other leave laws, employers cannot discriminate or retaliate against employees for taking or using paid sick leave.

Employer Documentation Requirements

Under the new law, employer must track accrual and use of employees’ paid sick leave time.  The employer must maintain these records for six years.  If an employee requests to view their paid sick leave accrual and use, the employer must provide the employee with a summary of the employee’s paid sick leave for the current year and any previous year where the employee accrued or used paid sick leave.

What Employers Can Do Now

Although the paid sick leave law does not go into effect until next year, employer can take steps now to prepare for the upcoming changes.  Employers should review and update their sick leave policies to ensure compliance with the law.  They should also begin to develop a system for tracking accrual of sick leave, given that employees can begin accruing leave on September 30, 2020.  By taking these steps before the law’s effective date, employers should be able to smoothly transition into compliance with the new law.

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