5-7-20 New York Will Require Sick Leave for All Employees in 2021

With all of the focus on COVID-19, many employers may have missed that, as part of the budget bill signed by Governor Cuomo in April 2020, New York will soon require all employers to provide sick leave to employees. The amount of sick leave and whether it is paid or unpaid depends upon the size and income of the employer. The permitted uses of sick leave are broad and also include leave taken for reasons associated with domestic violence. While the law takes effect such that employees begin to accrue sick leave on September 30, 2020, employees may not use sick leave until January 1, 2021. The law applies to all employers in the State. With respect to unionized employees, the law does not make clear whether it supplants existing collective bargaining agreements but does provide that collective bargaining agreements entered into on or after September 30, 2020 must provide comparable benefits (which may include leave, compensation or other benefits) to the benefits required under the law.

Employers should review any existing leave benefits to determine whether they offer benefits that meet or exceed the requirements of New York’s law. Employers who do not have a paid sick leave benefit should prepare a paid sick leave policy for implementation by September 30, 2020, and consider whether modifications to existing paid leave policies should be made in light of the law’s requirements. In particular, employers that currently utilize only a "Paid Time Off" ("PTO") policy which encompasses leave requests for vacation, personal time, and sick time should strongly consider creating a standalone sick leave policy so as to avoid issues arising from the specific statutory obligations related to carryover leave and documentation as to whether leave is being utilized for sick time or other reasons.

Requirements Depend Upon The Size And Net Income Of Employer

The leave requirements are as follows:

Employers with 4 or fewer employees in a calendar year and a net income of less than $1 million in the prior tax year must provide up to 40 hours of unpaid sick leave per year.
Employers with 4 or fewer employees in a calendar year and a net income of greater than $1 million in the prior tax year must provide up to 40 hours of paid sick leave per year.
Employers with between 5 and 99 employees in a calendar year must provide up to 40 hours of paid sick leave per year.
Employers with 100 or more employees in a calendar year must provide up to 56 hours of paid sick leave per year.

Paid sick leave is to be paid at the greater of the applicable minimum wage or the regular rate the employee is paid for hours worked. Employees may begin to accrue sick leave on September 30, 2020, when the law takes effect. Accrual is required at no lesser than the rate of 1 hour for every 30 hours worked. Employers may allow for accrual of the entire sick leave amount at the beginning of a calendar year, but may not then reduce the sick leave based upon hours actually worked.

For purposes of determining the number of employees under the law, a calendar year is defined as the twelve-month period from January 1 through December 31. For all other purposes, a calendar year may either mean the twelve-month period from January 1 through December 31 or a regular and consecutive twelve-month period, as determined by the employer.

Employees must be permitted to carryover accrued but unused sick leave to the following year, but employers may still limit sick leave use to the 40 or 56 hour per year caps, depending upon the size of the employer. The law does not require employers to pay employees for unused sick time, either at the end of a year or upon termination of employment. However, employer's sick leave policies should explicitly address whether such accrued but unused time will be paid out. Employers may require sick leave to be taken in minimum increments, but such minimums may not exceed 4 hours.

Reasons For Leave

Sick leave may be taken for the following reasons:

An employee or employee’s family member’s mental or physical illness, injury, or health condition, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that the employee requests the sick leave.
The employee or employee’s family member’s diagnosis, care or treatment of a mental or physical illness, injury or health condition, or for preventive care.
An absence from work for certain enumerated reasons where an employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking or human trafficking.

For purposes of the law, family member is broadly defined to include an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, and the child or parent of an employee’s spouse or domestic partner. Parent includes a biological, foster, step- or adoptive parent, or a legal guardian of an employee, or a person who stood in loco parentis when the employee was a minor. Child is defined as a biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.

Documentation of Sick Leave

As with other payroll records, employers must track and maintain the amount of sick leave and maintain such records for a minimum of 6 years. Upon request by an employee, employers must provide a summary of accrued and used sick leave from the current or previous year, within 3 business days. Notably, employers may not require an employee requesting sick leave to disclose confidential information pertaining to the request. The law does not provide further detail as to the documentation that an employer may require, and it is likely that this issue will be clarified in subsequent regulations.

Return to Work and Other Protections

An employee taking sick leave must be returned to the same position held immediately prior to the use of sick leave, with the same pay and other terms and conditions of employment. An employer may not in any manner discriminate or retaliate against an employee because the employee has exercised their rights under the law.

Employers should soon begin to consider what policies and provisions they will put into place to meet the New York State sick leave requirements and, may wish to use this as a good opportunity to consider broader changes that may be necessary for their company handbooks.

Please contact your Woods Oviatt attorney or the attorneys listed below regarding this or any COVID-19 related issues.

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