New Sick Leave Laws Come with New Employer Responsibilities

October 9, 2020

On September 30, 2020, the New York State Sick Leave (NYSSL) law, which requires employers to provide sick leave to employees, went into effect.  New York City also passed a law expanding sick leave protections in conjunction with the passage of the NYSSL law, which comes with enhanced responsibilities for NYC employers with respect to notice, reporting, and domestic workers.

An employee’s entitlement to NYSSL varies depending on employer size and income as follows:

  • Employers with 4 or fewer employees with a net income of less than $1 million in the previous tax year must provide 40 hours of unpaid sick leave each calendar year.
  • Employers with 4 or fewer employees and a net income of greater than $1 million in the previous tax year must provide 40 hours of paid sick leave each calendar year.
  • Employers with between 5 and 99 employees must provide 40 hours of paid sick leave each calendar year.
  • Employers with at least 100 employees must provide 56 hours of paid sick leave each calendar year.

NYSSL accrues at a rate of 1 hour every 30 hours worked. Although employers must allow employees to begin accruing NYSSL as of September 30, 2020, employees may not use NYSSL leave until January 1, 2021. Employers must permit employees to carry over unused sick leave under the NYSSL and the new NYC sick leave law to the following year. Alternatively, employers can provide all sick time at the beginning of the year. Employers are not required to pay an employee for unused sick leave upon the employee’s termination, resignation, retirement or other separation from employment. Employers may provide leave in excess of the entitlement and accrual requirements. With the passage of the new NYC law, domestic workers are also now entitled to accrue and use paid sick leave.

Employers can set a reasonable minimum increment for use of NYSSL, at a maximum of 4 hours.

Employees may use NYSSL for the following purposes:

  • Illness: Mental or physical illness, injury, or health condition of the employee or the employee’s family member, including the diagnosis, care, treatment or preventative care of their mental or physical illness, injury, or health condition.
  • Safety: Absence from work due to when the employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking and the employee or the employee’s family member is participating in activities 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.

Employers are prohibited from requiring employees to disclose confidential information related to their mental or physical illness, injury or health condition or information related to absence from work due to domestic violence, a sexual offense, stalking, or human trafficking, as a condition of providing sick leave.

Employers may not retaliate against employees who use NYSSL. If there is retaliation, an employee is entitled to reinstatement and protections against further retaliation.

Under the new NYC sick leave law, when an NYC employer requests documentation for an absence lasting more than three consecutive work days and a health care provider charges a fee for the documentation, the NYC employer must reimburse the employee for the fee.

If an employee requests a summary of their sick leave accrual and usage, the employer must provide it within 3 business days. In addition, NYC’s new sick leave law requires NYC employers to note employees’ sick leave usage and time accrued per pay period and total balance in writing each pay period.

What this means for Employers:

  • Update your Human Resource policies and practices and employee handbooks.
  • Begin tracking employees’ NYSSL as of September 30, 2020 making sure to note the accrual rate, and carry over accrued time into 2021.
  • NYC employers must provide each employee with notice of the changes under the law at the commencement of their employment or by October 30, 2020 for employees who are already employed.  Notices are available on the website of the NYC Department of Consumer Affairs: https://www1.nyc.gov/site/dca/about/Paid-Safe-Sick-Leave-Notice-of-Employee-Rights.page. The notice must be provided in English and the primary language spoken by that employee and conspicuously posted at the employer’s place of business in an area accessible to employees. 
  • NYC employers must also report the amount of sick time accrued and used during a pay period and the total balance on a pay statement or other form of written documentation each pay period beginning September 30, 2020. For this requirement only, employers that could not operationalize the documentation requirement by September 30, 2020, but are working in good faith on implementation, will have up to November 30, 2020 to ensure compliance without a penalty.
  • NYC employers must extend sick leave benefits to domestic workers.

For more information on this issue or other employment matters, please contact:

Carol M. Goodman at +1 212 592 1465 or [email protected]
Jalise Burt at +1 212 592 1590 or [email protected]
Jina Moon at +1 212 592 1584 or [email protected]
Meaghan Roe at +1 212 592 1632 or [email protected]
Silvia Stockman at +1 212 592 1583 or [email protected]

© 2020 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.