Sick Leave Policy May Not Comply with New York's New Law

NYC Employers: Does Your Sick Leave Policy Comply With the New Law?

On April 1, 2014, the New York City Earned Sick Time Act took effect for businesses conducting operations in the five boroughs of New York City:

Number of Employees	Amount of Sick Leave per Calendar Year	Paid or Unpaid Sick Leave	Rate of Pay
5 or more Must work 80+ hours a calendar year*	Up to 40 hours	Paid	Regular hourly rate but no less than $8 per hour (minimum wage)
1-4 Must work 80+ hours a calendar year	Up to 40 hours	Unpaid	Not Applicable
1 or more domestic workers Must work 80+ hours per calendar year and have been employed by the same employer at least 1 year	2 days	Paid	Regular hourly rate but no less than $8 per hour (minimum wage)

Employers must provide each employee with written notice of the right to sick leave, including accrual and use of sick leave, the right to file a complaint, and the right to be free from retaliation. The notice must designate the “calendar year” to be used for record-keeping, including Start Date and End Date. Employees have a right to the notice both in English and, where applicable, in their primary language (if not English).

Employers must keep and maintain records documenting compliance with the law for at least three years. All required records must be available to the New York City Department of Community Affairs upon notice.

Employers with existing paid-time off policies are not required to offer additional leave, so long as the policy meets the requirements of the new law. Although many New York City employers may assume that their sick leave policies pass muster, a thorough review is recommended as businesses that violate the law face civil penalties of up to $1,000. Furthermore, this law should be regarded as the “beginning” and not the “end;” meaning, the expectations of the law typically evolve towards greater legal imposition and costs.

In November 2014, the New York City Department of Consumer Affairs published a series of rules for a sick leave policy under the Earned Sick Time Act.

They detail a number of requirements employers must address in their written sick leave policies, including:

• Minimum daily increment: Employers may set a minimum amount of sick leave that employees can use in a day, provided that it does not exceed four hours.
• Advance notice requirement: Employers may require workers to provide up to seven days of advance notice, in writing, of their need to use sick leave for foreseeable reasons. If the need for sick leave is unforeseeable, the employer may require an employee to give notice as soon as practicable.
• Medical documentation requirement: Employers may require an employee to provide documentation from a licensed health care provider only after an employee takes more than three consecutive sick days and must allow workers seven days to produce such documentation, which can confirm the need for the amount of sick leave used; and that sick leave was used for an authorized purpose under the law.  Written sick leave policies must also address the consequences for failing to provide medical documentation when requested.
• Employee verification requirement. Employers may require employees to confirm that they used sick leave for one of the reasons articulated under the Paid Sick Leave Law. Procedures for employee verification, including any required form, must be included in their written sick leave policy.
• Front-loading: Employers may elect to front-load sick leave so that all employees start the employer’s calendar year with 40 hours of sick leave, so long as the procedures must be detailed in their written sick leave policy.
• Payout of unused sick leave: Employers may pay out up to 40 hours of unused sick leave at the end of the employer’s calendar year, only if the employer front-loads 40 hours of sick leave at the beginning of the new calendar year. Employers may also pay out unused sick leave upon the end of an employee’s employment.
• Donation of unused sick leave: Employers who allow employees to donate unused sick leave to other workers must detail the procedures for doing so in their written sick leave policies.

Employers should understand that the right to request medical proof and documentation creates other legal exposures that should be carefully considered. Knowledge of the employee’s medical condition creates an issue with accommodation is the condition constitutes a disability. Further, issues of confidentiality and HIPAA compliance present serious legal issues that cannot be ignored.

Paid sick leave promises to be an important employment law issue in 2015. This is the perfect time to conduct a critical review of your current policies and compliance. We encourage you to check back for updates on additional legislation that may impact your business.

Are you a New York employer whose sick leave policy has been affected by these laws? If so, feel free to leave your thoughts and/or opinions in the comment section below.