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New York State: Paid Sick Leave Law
By Pia Perfetto on October 30, 2020

Effective September 30, 2020, New York’s Paid Sick Leave includes mandatory sick leave for employees throughout New York State, except for employees of government entities. Please be advised that all private sector workers are now covered under New York’s new sick and safe leave law, including part-time employees.

“All 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." NYS Department of Labor Eligibility to take leave under this new law begins January 1, 2021, requiring all private employers to provide its employees with sick leave, although the amount depends on the size of the employer.  

(Learn more about the NYS Paid Leave law by contacting the legal professionals at HoganWillig at (716) 636-7600.)

“Small” Employers  

Employers with four (4) or fewer employees must provide each worker with up to forty (40) hours of unpaid sick leave in each calendar year. Yet, if an employer of this size has a net income of greater than one million dollars in the previous tax year, the employer must provide each employee with up to forty (40) hours of paid sick leave. 

“Medium” Employers  

For employers with between five (5) and ninety-nine (99) employees, each employee must be provided with up to forty (40) hours of paid sick leave in a calendar year.  

“Large” Employers  

Finally, for employers with one hundred (100) or more employees in any calendar year, each employee must be provided with up to fifty-six (56) hours of paid sick leave in each calendar year.  

Under New York’s new sick leave law, employers can, of course, go above the minimum legal requirements to provide employees with an amount of leave which exceeds and satisfies the minimum obligations.  

Sick Leave Accrual 

Sick leave accrues at a rate of one hour for every 30 hours worked, unless an employer elects to frontload all sick time at the beginning of the year. Employees begin accruing sick leave at the commencement of their employment or the effective date of the law (Sept. 30, 2020), whichever is later. Employees cannot, however, begin to use sick leave time until Jan. 1, 2021.  

Basis for Accrued Sick Leave:  

Mental or physical illness, injury, or health condition of either an employee or an employee’s family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time employee requests leave.  

Diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of, or need for medical diagnosis of, or preventative care for either the employee or an employee’s family member.  

Absences related to domestic violence.  

Other considerations:  

  • The law instructs employers to use the number of employees who are employed by the company in the calendar year between January 1 and December 31 to determine how much leave they must provide to employees. It is anticipated that Department of Labor will later clarify how an employer should calculate its size as the headcount of employees typically various throughout a calendar year.  
  • Employers can require employees to take sick leave in reasonable increments. The minimum increment may not exceed four (4) Sick leave must be paid at either the employee’s regular rate of pay. (Or at minimum wage, if the employee’s regular pay rate is somehow lower.)  
  • Accrued and unused sick leave may be carried over to the following year. An employer with less than 100 employees can restrict the use of accrued sick leave to a maximum of 40 hours per calendar year. Employers with 100 or more employees may have a policy that restricts the use of accrued sick leave to a maximum of 56 hours per calendar year. 
  • Employers are not required to pay out accrued and unused sick leave upon termination of employment, but must notify employees if they do not plan to pay out unused leave.  
  • The law requires New York employers to keep payroll records documenting the amount of sick leave provided to each employee for a minimum of six (6)  
  • Upon request from an employee, an employer must give a summary of all used and accrued sick leave for the current and any previous years. Employers have three (3) days to comply with such requests.  
  • Employers can satisfy the New York paid sick leave requirements through an alternate leave policy. However, the policy must offer at least as many hours and as beneficial of an accrual rate and carryover rules as the law requires. And employees must be able to use the leave for all of the reasons allowable under the law.  
  • Employers cannot require employees to disclose confidential information to verify the worker’s need for sick leave, and employees have a right to be reinstated and protected against retaliation for exercising their rights under the new sick leave law.  

Currently, it is unclear what an employer’s obligations would be if the employer provided unlimited paid time off and therefore does not track employees’ usage of paid time off. As written, this law does not explicitly allow employers to require employees to provide advance notice of the need for sick leave. Please be aware that New York State’s COVID-19 paid leave law remains in effect in 2021. Thus, if an employee becomes sick with COVID-19, an employer must still provide COVID-19 paid leave to cover “any mandatory or precautionary order of quarantine or isolation” for the employee. 

We anticipate that the New York State Department of Labor will release, prior to January 1, 2021, supplementary guidance and/or commentary, or even additional regulations, with respect to this new law. 

Learn more about the NYS Paid Leave law by contacting the legal professionals at HoganWillig at (716) 636-7600. 

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