Jill Turner Lever, Jordan E. Pace
Employment and Labor
September 01, 2020
On April 3, 2020, during the early
days of the COVID-19 pandemic, and amidst the flurry of federal and state laws
addressing those issues, New York State quietly enacted mandatory sick leave
legislation as part of a comprehensive budget law. This new New York State paid sick leave law
(PSLL) is separate from, and in addition to, the New York State paid leave law
for individuals affected by mandatory or precautionary orders of quarantine or
isolation due to COVID-19. Employers,
including those whose existing policies comply with New York City and
Westchester County paid sick leave requirements, should review the requirements
of the PSLL summarized below and should revisit their sick day polices due to
differences between the laws. The PSLL takes effect on September 30, 2020, though
employees may not begin using any accrued sick leave until January 1, 2021.
Coverage and Requirements
The amount of leave, and whether it
is paid or unpaid, is determined by a private employer’s size in a given
calendar year and net income in the prior tax year. While the law does not indicate whether an
employer must count employees located outside of New York State for PSLL
purposes, the applicable definition indicates that both full-time and part-time
employees must be counted.
with 4 or fewer employees in a calendar year and a net income of $1 million or
less in the previous tax year must provide each employee with at least 40 hours
of unpaid sick leave each calendar year.
with 4 or fewer employees in any calendar year and a net income of more than $1
million in the previous tax year must provide each employee with at least 40
hours of paid sick leave each calendar year.
with between 5 and 99 employees in any calendar year must provide each employee
with at least 40 hours of paid sick leave each calendar year.
with 100 or more employees in any calendar year must provide each employee with
at least 56 hours of paid sick leave each calendar year.
Notably, for larger employers with
100 or more employees, the PSLL is more favorable to employees as compared with
the New York City paid sick leave law which only requires 40 hours, therefore
providing 16 additional hours of paid sick leave.
Reasons for Leave
Qualifying reasons for the use of
sick leave include:
mental or physical illness, injury or health condition of the employee or a
family member, regardless of whether such illness, injury or condition has been
diagnosed or requires medical care at the time that leave is requested;
diagnosis, care, or treatment of a mental or physical illness, injury or health
condition of, or the need for medical diagnosis of, or preventive care or the employee or a family member; or
absence from work when an employee, or an employee’s family member, who has
experienced domestic violence, a sexual offense, stalking, or human trafficking
receives assistance or attends to related matters after such an event, such as
counseling, legal proceedings, or relocation, or takes 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.
“Family member” is defined as 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. A “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. A “child” means a biological, adopted or foster
child, a legal ward, or a child of an employee standing in loco parentis.
In this respect, the PSLL is more restrictive than New York City’s paid sick
leave law, which includes individuals who are the “equivalent” of family
Accrual and Use
Employees accrue sick leave at a
rate not less than one hour for every 30 hours worked. Alternatively, the law permits employers to
front load the total amount of sick leave at the beginning of the calendar year, provided that employers do
not reduce the available amount of sick leave based on the number of hours
actually worked by the employee.
Under the law, unused but accrued
sick leave can be carried over to the following year. It is unclear if
the state will clarify whether the carryover provision will apply to an
employer choosing to front load sick leave at the beginning of the year. An
employer with fewer than 100 employees may limit the use of sick leave to 40
hours per calendar year. An employer with 100 or more employees may limit the
use of sick leave to 56 hours per calendar year. Employers may set a
“reasonable” minimum increment for the use of sick leave, but that incremental
use cannot exceed four hours.
Employers cannot require employees
who request to use sick leave to disclose any confidential information
pertaining to the request. Employees utilizing sick leave must be returned to
the same position they held immediately prior to the use of sick leave with the
same pay and other terms and conditions of employment. In addition, the law prohibits retaliation for
use of such leave.
Interaction with Other Policies
If an employer already has an
existing paid leave policy that satisfies all of the requirements under the
PSLL (accrual rate, carryover, and permissible uses), the employer is not
required to provide additional sick leave. Collective bargaining agreements may
provide for benefits comparable to what the law requires – in the form of
leave, compensation, or other benefits.
Employers must maintain records of
sick leave provided to each employee for at least six years. Moreover, if an employee makes an oral or
written request, an employer must provide a summary of sick leave accrued and
used by the employee during the current and previous calendar years.
New York employers should promptly review
their sick leave policies to confirm that such policies meet the new law’s
requirements. As with other paid sick
leave laws enacted in New York City and New Jersey, the devil is in the details
and coordinating with other paid time off policies can be complicated. The New York State Department of Labor has
not yet issued regulations or guidance, which will likely be forthcoming. Please reach out to us if you would like any
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