Guidance on New York’s Paid Sick Leave Law – Key Takeaways for Employers

Employees must now begin accruing paid sick leave benefits and may begin taking leave on January 1, 2021...

New York State’s paid sick leave law took effect on September 30, 2020. Employees must now begin accruing paid sick leave benefits and may begin taking leave on January 1, 2021.

The New York State Paid Sick Leave Law requires employers with five or more employees to provide their employees with paid sick and safe leave. Businesses with fewer than five employees and a net income of $1 million or less must provide unpaid sick and safe leave to employees. The amount of leave employers must provide per calendar year is dependent on the size of the employer:

• 4 or fewer employees and a net income less than $1 million: 40 hours of unpaid sick leave
• 4 or fewer employees and a net income greater than $1 million or 5-99 employees: 40 hours of paid sick leave
• 100 or more employees: 56 hours of paid sick leave

Leave must be accrued at a rate of not less than one hour for every thirty hours worked. Once sick leave is accrued, employers may take leave for the following reasons impacting the employee or a member of their family for whom they are providing care or assistance with care:

Sick Leave

• For mental or physical illness, injury, or health condition, regardless of whether it has been diagnosed or requires medical care at the time of the request for leave; or
• For the diagnosis, care, or treatment of a mental or physical illness, injury or health condition; or need for medical diagnosis or preventive care.

Safe Leave

For an absence from work when the employee or employee’s family member has been the victim of domestic violence as defined by the State Human Rights Law, a family offense, sexual offense, stalking, or human trafficking due to any of the following as it relates to the domestic violence, family offense, sexual offense, stalking, or human trafficking:

• to obtain services from a domestic violence shelter, rape crisis center, or other services program;
• to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members;
• to meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any 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.

NYDOL Paid Sick Leave Guidance

To help New York employers with their compliance efforts, the New York Department of Labor (NYDOL) recently published answers to frequently asked questions (FAQs). Below are a few key takeaways:

• Eligibility: The FAQs advise that “[a]ll private-sector workers in New York State are now covered under the state’s new sick and safe leave law, regardless of industry, occupation, part-time status, overtime exempt status, and seasonal status.”
• Calendar Year: To determine the total number of employees, “calendar year” means the 12-month period from January 1 to December 31. For other purposes, including use and accrual of leave, employers may set a calendar year to mean any 12-month period.
• Notice: There is no specified notice or time period requirement under the sick leave law, provided, however, that there is an oral or written request to the employer prior to using the accrued sick leave unless otherwise permitted by the employer.
• Working Remotely: An employer cannot require an employee to work from home or telecommute instead of taking sick leave. But an employer can offer the employee the option of working from home or telecommuting. If employees voluntarily agree to work from home or telecommute, employees will retain the paid or unpaid sick leave that they have accrued. Employees who telecommute are covered by the law only for the hours when they are physically working in New York State, even if the employer is physically located outside New York State.
• Rate of Pay: Employees are required to be paid their normal pay for leave time under the law. Employers are not required to pay employees for lost tips or gratuities, but employers may not take a tip credit for leave time and must pay the employee their normal rate of pay or the applicable minimum wage, whichever is greater.
• Front Loading Leave: At the beginning of each calendar year, an employer can provide part-time employees with the hours of sick leave they would accrue based on the hours they are anticipated to work at the accrual rate of one hour of sick leave for every 30 hours the employee is anticipated to work. However, if the employer frontloads fewer than 40 hours, the employer must still track the employee’s hours worked and accrual of sick leave because a part-time worker may work more hours than anticipated. If the employee works more hours than anticipated, the employer must allow the employee to accrue leave at the rate of one hour for every 30 hours worked until the total amount of front-loaded plus accrued sick leave in a calendar year equals 40 hours. Employees who are front-loaded less than 40 hours in a calendar year must be allowed to use up to 40 hours of sick leave in a calendar year if they have accrued it. An employer who front-loads fewer than 40 hours must allow employees to carry over up to 40 hours of unused sick leave into the new calendar year, in addition to front-loading the amount of time the employer expects the employee to earn in the new calendar year.
• Carrying Over Leave: Sick leave that is unused by an employee over the course of the year must be carried over to the next calendar year. However, employers may limit employee use to the number of hours that the employee is entitled to use within any calendar year (i.e., 56 hours for employers with 100 or more employees and 40 hours for employers with 99 or fewer employees).
• Penalties: Under New York State Labor Law, failure to provide employee benefits such as sick leave, is equivalent to a failure to pay employee wages. Should an employer fail to provide their employees with sick leave as required under the law, they may be subject to civil/administrative actions and/or criminal penalties, including but not limited to, an order assessing the full amount of the wage underpayment, 100% liquidated damages, and civil penalties in an amount up to double the total amount to be due.

Next Steps for New York Employers

We encourage all New York employers to thoroughly review the FAQs and contact experienced employment counsel with any compliance questions. Employers should also verify that eligible employees are now accruing leave and that procedures are in place to track the accruals. Finally, employers should also take steps to incorporate the NYSSL’s requirements into their leave policies.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Howard Bader, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.