As part of New York State’s fiscal year 2021 budget bill signed by Governor Andrew Cuomo on April 3, 2020, a Paid Sick Leave Law (“PSLL”) was enacted requiring all New York employers to offer sick leave to their employees. The PSLL is in addition to the mandatory COVID-19 sick leave provisions that also came out earlier this year. The level of required leave, and whether or not such leave must be paid, depends on the size and net income of the employer. Employees may begin accruing sick leave on September 30, 2020, and must be allowed to take accrued leave beginning January 1, 2021. Here are answers to some key questions:
I. WHAT ARE THE ACCRUAL REQUIREMENTS?
Under the PSLL, employees must accrue sick leave at the rate of one hour for every 30 hours worked, beginning on (1) their first day or employment; or (2) September 30, 2020, whichever is later. Requirements for employers, based on size and net income are as follows:
- Employers with four or fewer employees, and a net income of $1 million or less in the previous tax year: Employees may accrue up to 40 hours of unpaid sick leave in a calendar year.
- Employers with four or fewer employees, and a net income of greater than $1 million in the previous tax year: Employees may accrue up to 40 hours of paid sick leave in a calendar year.
- Employers with between five and 99 employees: Employees may accrue up to 40 hours of paid sick leave in a calendar year.
- Employers with 100 or more employees: Employees may accrue up to 56 hours of paid sick leave in a calendar year.
In the alternative, an employer may “frontload” the sick leave by providing employees with 40 (or 56) hours of sick leave at the beginning of any 12 month period. However, if the employer chooses to do this, it may not later reduce the leave if it turns out the employee did not work enough hours to accrue the full amount.
An employee may use accrued sick leave for:
- the employee’s, or a family member’s, mental or physical illness, injury or health condition, regardless of whether the illness, injury, or health condition has been diagnosed or requires medical care at the time of the leave request;
- the diagnosis, care, or treatment of an employee’s, or a family member’s, mental or physical illness, injury or health condition; and
- an absence from work when an employee, or an employee’s family member, who has experienced domestic violence, a sexual offense, stalking, or human trafficking receives assistance or attends to related matters after such an event, such as counseling, legal proceedings, or relocation, or “take[s] 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.”
III. WHAT IS THE RATE OF PAY FOR PAID SICK LEAVE?
Employees entitled to paid sick leave must be paid the greater of (1) their regular rate of pay; or (2) the applicable minimum wage.
IV. MAY EARNED SICK LEAVE BE CARRIED OVER TO THE FOLLOWING YEAR?
Yes. An employee’s unused sick leave must be carried over to the following year. However, an employer with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year. Similarly, an employer with 100 or more employees may limit the use of sick leave to 56 hours per calendar year.
V. MUST AN EMPLOYEE BE PAID FOR UNUSED SICK LEAVE?
No. There is no requirement that an employee be paid for unused sick leave, either at the end of the year, or upon the employee’s termination of employment (whether voluntary or involuntary).
VI. ARE THERE ANY SPECIFIC NOTICE REQUIREMENTS?
No. The PSLL does not expressly require employees to give “reasonable notice,” or that the notice be “as soon as practicable.” Notice may be given verbally or in writing.
VII. ARE THERE RECORDKEEPING REQUIREMENTS?
Yes. Employers must provide, upon the employee’s request (written or verbal), a summary of sick leave accrued and used by the employee during the current and/or prior calendar year. Employers must respond to this request within three business days of the request.
In addition, records showing the amount of sick leave provided to each employee for each week worked must be maintained for six years.
VIII. WHAT OTHER FACTORS SHOULD I BE AWARE OF?
A few things… First, employers may not require the employee to disclose the nature of any medical condition, or any other matter resulting in the need for leave. Second, an employer may not retaliate against an employee for taking or requesting leave to which the employee is entitled under the PSLL. And finally, upon their return from sick leave, employees must be restored to their former position, at the same rate of pay and other terms and conditions of employment.
IX. I ALREADY PROVIDE PAID TIME OFF TO MY EMPLOYEES - DO I HAVE TO PROVIDE MORE?
Not necessarily. The employer is not required to provide additional sick leave if the employer’s existing policies provide an amount of leave that meets or exceeds the requirements of the PSLL, in terms of accrual, compensation, carryover and uses.
HOWEVER: Be aware that localities may have their own leave requirements, in addition to the PSLL. For example, the New York City Earned Safe and Sick Time Act and the Westchester County Earned Sick Leave Law and Safe Time Law each have requirements that are different, and in some cases more onerous than the PSLL.
X. WHAT SHOULD I DO NOW?
- Employers should review their existing leave policies and determine if they meet the requirements of the PSLL, and any other applicable local laws.
- An employer that currently does not have a written leave policy, or has one that falls short of the PSLL requirements, should begin to develop one that will be ready to implement by September 30, 2020.
For more information on New York's Paid Sick Leave Law, or other employee leave issues, contact Ron Rolleri at ron@rollerilaw.com.
