New York State Paid Sick Leave
We are fast approaching the September 30 starting date for New York State Paid Sick Leave. Beginning on September 30, employers in New York State must begin recording hours worked for each employee and amount of paid sick leave accrued. This requires all employees to become familiar with the regulations surrounding the new leave law. While further guidance will undoubtedly come in the future, this fact sheet will equip employers with all of the essentials regarding New York State Paid Sick Leave:
Which Employers are Obligated to Provide Sick Leave?
To be clear, ALL employers in New York State will be required to provide leave under this law in one form or another. The extent of employer obligation is dependent upon the number of employees:
- Employers with 4 or fewer employees and a net income of less than $1 million in the previous tax year are required to provide 40 hours of unpaid sick leave per calendar year;
- Employers with 5-99 employees (regardless of net income) are required to provide 40 hours of paid sick leave per calendar year;
- Employers with 100+ employees (regardless of net income) must provide 56 hours of paid sick leave per calendar year.
What May Paid Sick Leave be Used For?
An employee may use Paid Sick Leave for the following reasons:
- For a mental or physical illness, injury, or health condition of an employee or an employee’s family member;
- For the diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of an employee or family member (including preventive care);
- For employee absence related to domestic violence, a sexual offense, stalking, or human trafficking of employee or a family member. Examples include the following:
o Obtaining services from a shelter or relief program;
o Taking measures to increase employee or family member safety, such as relocation or safety planning;
o Meeting with an attorney or social services provider with regard to advice/preparation for trial;
o Filing a complaint with law enforcement;
o Meeting with a district attorney's office
How Does an Employee Accrue Leave?
Employees will accrue time off at the rate of 1 hour of Paid Sick Leave earned for every 30 hours worked, up to the annual minimum.
Alternatively, an employer may decide to frontload the minimum amount of hours to employees at the beginning of the year. If done in this way, employers need not keep track of accrued hours for employees.
Does New York State Paid Sick Leave Carry Over from One Year to the Next?
Yes. An employee is entitled to carry over all unused but accrued sick time from one year to the next. However, an employer is only required to allow an employee to use 40/56 hours of Paid Sick Leave each year (regardless of the amount banked).
Must an Employer Compensate an Employee for Accrued-but-Unused Sick Time at Termination of Employment?
No. Unused sick time does NOT need to be paid out to employees upon termination of employment, regardless of the reason for termination.
Does New York State Paid Sick Leave Provide Job Protection?
Yes. Employees who return from New York State Paid Sick Leave are entitled to be re-instated to the same position that they held when they left.
Employees are protected from retaliation for inquiring about their rights under this law OR exercising their rights under this law.
What Records Must an Employer Keep?
Employers must maintain records of the following for each employee for six years:
- Hours worked each week
- Rate of pay
- Gross wages
- Amount of sick time provided
- Net wages
- Overtime payments
An employer must provide a summary of accrued and available sick leave for any and all employees upon request.
May an Employer Use Their Own Paid Leave to Supersede New York State Paid Sick Leave?
Yes. An employer may substitute their own, company-created leave policy for New York State Paid Sick Leave, provided:
- The Company leave policy is at least as generous in terms of time allowed, accrual, carryover, and all other administrative standards;
- There are no restrictions to the use of leave not present in the New York State Paid Sick Leave.
Although employers must begin tracking employee accrual of Paid Sick Leave on September 30, 2020, employees are only eligible to use this leave beginning January 1, 2021. Employers may place reasonable constraints on the use of Paid Sick Leave, but in no event may an employer restrict its use to less than 4 hours per day.
More guidance will be given by the state as the September 30 date comes closer. FNA will keep you up to date on all new information surrounding New York State Paid Sick Leave.
Heather Reynolds, ESQ