On April 3, 2020, New York Governor Andrew Cuomo signed into law legislation creating completely new, non-COVID-related sick leave entitlements for employees throughout New York state. Specifically, beginning on January 1, 2021, New York employers must provide their employees with paid sick leave, as follows:
- Employers with (i) 5 to 99 employees, or (ii) 4 or fewer employees and a net income greater than $1 million, must provide their employees with at least 40 hours of paid sick leave, annually.
- Employers with 100 or more employees must provide their employees with at least 56 hours of paid sick leave, annually.
Employers with 4 or fewer employees and a net income less than $1 million must provide their employees with at least 40 hours of unpaid sick leave, annually.
It is important to note that these sick leave requirements are unrelated to the coronavirus pandemic and differ from the coronavirus-specific New York sick leave law that was passed on March 18, 2020, the details of which can be found here.
Sick Leave Accrual, Carryover and Payout Provisions
More specifically, under the new law (the “Sick Leave Law”), employees must accrue sick leave at a rate of not less than one sick leave hour for every 30 hours worked, subject to the above-noted caps. Importantly, employees begin to accrue sick leave as of the commencement of their employment or on September 30, 2020, whichever is later. Employers may, however, elect to frontload the entirety of the required sick leave allotment at the beginning of the calendar year.
At the end of each calendar year, employees may carry over into the subsequent year the entirety of the unused sick leave time that they accrued pursuant to the law. However, this does not change the fact that employers with 100 or fewer employees may limit an employee’s use of sick leave to 40 hours per year, and employers with 100 or more employees may limit an employee’s use of sick leave to 56 hours per year. Simply put, the carryover of accrued but unused time from one calendar year to the next does not increase the amount of sick leave time that an employee may use in a calendar year. (Notably, the law defines the term “calendar year” as either the 12-month period from January 1 through December 31 or a “regular and consecutive 12-month period, as determined by an employer.”)
Regarding employees’ day-to-day use of sick leave time, employers may establish a minimum increment according to which sick leave time must be used. However, that minimum increment may not exceed 4 hours. Employers are also not required to pay employees for accrued but unused sick time upon an employee’s voluntary or involuntary separation of employment.
Reasons for Which Accrued Sick Leave May Be Used
Under the Sick Leave Law, employees may use their accrued sick leave for a wide range of reasons, including:
- a mental or physical illness, injury, or health condition of such employee or such employee’s family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care;
- the diagnosis, care, or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventive care for, such employee or such employee's family member;
- an absence from work due to any of the following reasons when the employee or employee's family member has been the victim of domestic violence pursuant to certain enumerated laws, a family offense, sexual offense, stalking, or human trafficking:
- to obtain services from a domestic violence shelter, rape crisis center, or other services program;
- to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee's family members;
- to meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding;
- to file a complaint or domestic incident report with law enforcement;
- to meet with a district attorney's office;
- to enroll children in a new school;
- to take 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.
As employees will begin accruing sick leave time on September 30, 2020, New York employers should begin to plan and account for this development, including modifying their existing sick leave policies and procedures in order to comply with the forthcoming law.
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