On April 3, 2020, Governor Andrew Cuomo signed the Enacted Budget for fiscal year 2021, which includes what his office touts as the “strongest Paid Sick Leave program in the nation.” The FY2021 Enacted Budget includes Senate Bill 7506B, which, among other things, requires that all New York State employers provide sick leave to workers. The full text of SB 7506B, which amends the New York Labor Law by adding Section 196-b, can be viewed HERE .
Please note that this law has been in the works for months and is separate and apart from any COVID-related sick pay.
Here are the key points that employers should know about the law:
Amount of Sick Leave
- Employers with 4 or less employees in any calendar year must provide up to 40 hours of unpaid sick leave to employees in each calendar year. However, if these employers have a net income of more than $1 million in the previous tax year, the 40 hours of leave must be paid.
- Employers with 5-99 employees in any calendar year must provide employees up to 40 hours of paid sick leave each calendar year.
- Employers with 100+ employees in any calendar year must provide employees up to 56 hours of paid sick leave each calendar year. Note that this is more than New York City employers have had to provide through the New York City’s Paid Safe and Sick Leave law, which has been in effect since 2014.
Although employers must use the regular calendar year (January 1 through December 31 st ) to determine their number of employees for compliance with the new law, employers may choose to set a different consecutive 12-month period for purposes of leave accrual and use.
Leave Accrual
Employees must accrue sick time at a rate of 1 hour per 30 hours worked starting on the later of September 30, 2020 or the employee’s first day of work. Alternatively, employers can “front-load” the yearly minimum amount of sick time to employees at the start of the calendar year or on the employee’s first day of work. However, the law appears to require an employer who opts to front-load the time to front-load the full 40 or 56 hours, regardless of when in the calendar year the employee begins working, instead of a prorated amount of time. We hope that further guidance on this issue will provide some clarity to employers.
Employees start accruing sick leave under the law on September 30, 2020. Employers must provide the accrued leave for the covered uses set forth under the law starting on January 1, 2021.
Covered Uses
Employees must be permitted to use their accrued sick time for the following reasons:
- for 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 at the time that such employee requests leave;
for 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, the employee or the employee’s “family member”; or
- for an absence from work due to a variety of reasons when the employee or the employee’s “family member” has been the victim of domestic violence, a family offense, a sexual offense, stalking or human trafficking including: (a) to obtain services from a domestic violence shelter, rape crisis center, or other services program; (b) 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; (c) 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; (d) to file a complaint or domestic incident report with law enforcement; (e) to meet with a district attorney’s office; (f) to enroll children in a new school; or (g) 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 used in the law, “family member” is broadly defined to include an employee’s child (including 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- or adoptive, legal guardian or person who stood in loco parentis when the employee was a minor), sibling, grandchild or grandparent; and the child or parent of an employee’s spouse or domestic partner.
The law allows employees to request use of sick leave verbally or in writing and prohibits employers from requiring the disclosure of confidential information related to the employee’s or an employee’s family member’s as a condition of providing sick leave. The latter is significantly different from the New York City local law which allows employers to request supporting documentation after three days of paid sick leave use. The law also prohibits employers from seeking “information relating to absence from work due to domestic violence, a sexual offense, stalking, or human trafficking.”
Under the law, employers can set a reasonable minimum increment for sick time use, which cannot exceed four hours.
Compensation for Use of Sick Time
Employees eligible for paid sick time must be paid at regular rate of pay (or the applicable minimum wage if greater).
Carryover and Payout Upon Separation
Although an employee may carryover unused sick time into the following calendar year, employers with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year, while employers with 100 or more employees can limit use to 56 hours per calendar year.
The law does not require employers to pay an employee for unused sick time upon the employee’s separation from employment, regardless of the reason.
Possible Individual Liability
Though not entirely clear, the law seems to impose individual liability upon any “officer or agent of any corporation, partnership or limited liability company or any other person” where such person discharges, threatens, penalizes or in any other manner discriminators or retaliates against the employee because the employee has used or requested to use sick leave.
Return to Work
After using sick leave, the employee must be restored to the employee’s prior position with the same pay and other terms and conditions of employment.
Recordkeeping
Employers also face additional administrative burdens. The law amends Section 195 of the New York Labor Law to require employers to maintain records showing the amount of sick leave provided to each employee for 6 years.
Further, employers must provide employees with a summary of the amounts of sick leave earned and used in both the current calendar year and any previous calendar year(s) within 3 business days of an employee’s verbal or written request. From a practical standpoint, employers should consider conferring with their payroll company to explore whether these amounts can be clearly noted on employee’s paystubs.
Interaction with Local Laws
The State law provides that cities with populations of 1 million or more are free to enact their own local laws or ordinances which either meet or exceed the minimum requirements of the State law. This means that the earned sick leave laws in both New York City and Westchester County will continue to be enforceable, but employers in those jurisdictions will need to evaluate how to comply with both laws and whether additional leave must be given in order to meet the State law’s minimum requirements.
Next Steps for Employers
While employers are primarily focused now on COVID-related issues during these difficult times, New York employers will need to revisit their current PTO and sick pay policies to ensure compliance on the horizon. Many employers are already evaluating policies in light of the crises and planning for modifications in the future. Please feel free to reach out to NFC for assistance in this regard.
If you have any questions relating to this eAlert, please reach out to the NFC Attorney with whom you typically work, or call us directly at 973.665.9100. We are happy to assist with this or any COVID-related issue.