Hey Compliance Warriors!

New York State’s new paid sick leave law (“NYSSL”) took effect on September 30, 2020, requiring employers to allow employees to begin accruing paid sick leave benefits immediately. But, when can they begin using the paid leave? Read on…

Employees may use their accrued leave under the NYSSL starting January 1, 2021. In response to its state law counterpart, New York City Mayor Bill de Blasio has signed into law certain amendments to the existing NYC Paid Safe and Sick Leave Law (“NYCPSL”), also known as the Earned Sick and Safe Time Act, to align the NYCPSL with the NYSSL.

As discussed below, the NYSSL and NYCPSL impose similar paid sick leave requirements on employers, though the amendments to the NYCPSL expand employers’ obligations and strengthen New York City’s enforcement mechanisms.

New York State Paid Sick Leave Law

Under the new NYSSL, all New York State employers must provide sick leave that accrues for each employee at a rate of at least 1 hour for every 30 hours worked (which is the same accrual rate provided under the New York City and the Westchester County sick leave laws). Alternatively, employers may “frontload” or provide the full amount of sick leave at the beginning of each year.

The amount of sick leave that employers must provide is based on the employer’s size and net income in a given calendar year. The minimum leave requirements of employers for each calendar year are as follows:

• 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

Employees must start accruing sick leave as of September 30, 2020 or at the commencement of their employment (whichever is later), but employees are not entitled to use any accrued sick leave under the NYSSL until January 1, 2021. Employers may set a minimum increment for use of sick leave, not to exceed four hours.

Employees may carry over accrued, unused sick leave to the next calendar year, though employers can limit the use of sick leave per calendar year to 40 hours (for employers with fewer than 100 employees) or 56 hours (for employers with 100 or more employees). Employers are not required to pay an employee for any accrued, unused NYSSL upon separation of employment.

Employees may use NYSSL for (1) a mental or physical illness, injury, or health condition of an employee or the employee’s family member; (2) the diagnosis, care or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member (or a ward for whom the employee is the guardian); or (3) an employee or an employee’s family member who is a victim of domestic violence, a sexual offense, stalking or human trafficking in order to avail themselves of services or assistance as a result of such incidents. Employers may not require disclosure of confidential information relating to an illness, injury, or health condition of the employee or the employee’s family member, or information relating to absence from work due to domestic violence, a sexual offense, stalking, or human trafficking.

“Family member” includes an employee’s child (biological, adopted, or foster child, a legal ward, or a child of an employee standing in loco parentis), spouse, domestic partner, parent (biological, foster, step, adoptive, legal guardian, or person who stood in loco parentis when the employee was a minor child), sibling, grandchild, or grandparent, as well as the child or parent of an employee’s spouse or domestic partner.

Employers must track the amount of sick leave accrued by each employee and maintain that information for at least six years. If an employee requests a summary of the amount of sick leave they have accrued and used in the current or any previous calendar year, the employer must provide that information within three business days.

As a practical matter, employers should (1) ensure that their employees are accruing NYSSL leave immediately, (2) track each employee’s accruals for use starting no later than January 1 (if the employer uses an accrual system), and (3) develop or revise their sick leave policies to incorporate the NYSSL’s requirements.

If an employer has an existing sick leave policy that provides for at least the same amount of leave and satisfies the other requirements of the NYSSL, the employer is not required to provide any additional leave.

Employers should note that the NYSSL leave benefits are separate from the New York State COVID-19-related paid sick leave benefits that took effect on March 18, 2020 (discussed here), such that benefits under both laws should not run concurrently. In the coming weeks, the New York State Department of Labor will likely issue guidance on the NYSSL to help employers implement the new law and to clarify the interplay between the NYSSL, New York’s COVID-19 sick leave law, and the existing sick leave laws in New York City and Westchester County.

NYC Paid Sick Leave Law

Effective September 30, 2020, NYC has aligned the NYCPSL accrual rate and usage purposes with the new NYSSL, and has increased the amount of sick leave employers must provide under NYCPSL to match the NYSSL. (Previously, employers were only required to provide up to 40 hours of paid sick leave.) Employees are not entitled to use any additional paid leave provided under the amendments to the NYCPSL until January 1, 2021.

Under the revised NYCPSL, effective September 30, 2020, employers must also:

• Allow employees to use safe and sick leave as it accrues, and eliminate any new-employee waiting periods for use of accrued leave;
• Note, on each employee’s pay statement or another document provided to the employee each pay period, the amount of paid sick and safe leave accrued and used during each pay period, a the employee’s accrued leave balance;
• Reimburse employees for any fees associated with obtaining required medical documentation supporting the need for leave; and
• Notify employees of the new changes within 30 days of the effective date of the new law (e., by October 30, 2020) and continue to provide new employees with a notice of rights upon commencement of employment.

Other notable changes to the NYCPSL include:

• Requiring any employer who employs even one domestic worker in NYC to provide 40 hours of paid sick leave;
• Clarifying that the law’s anti-retaliation provisions are implicated when an employee’s use of NYCPSL is a motivating factor for an adverse employment action (even if other factors contribute to the decision); and
• Permitting the NYC Department of Consumer and Worker Protection (“DCWP”) to bring “pattern or practice” enforcement actions with expanded capabilities, including new subpoena and investigative powers, and that could incorporate civil penalties up to $15,000 and an extra $500 in damages for each employee who was not permitted to utilize NYCPSL leave.

The DCWP is in the process of updating its guidance materials for employers and will soon issue a revised Notice of Employee Rights that employers should distribute to employees by October 30, 2020.