New York Sick Leave Law

Revision to Labor Law

In response to the COVID-19 pandemic, New York State enacted a permanent change requiring all employers, with employees in New York State, to provide paid sick leave to their employees.  See Senate Bill S7506B.  This sick leave provision can be found in the new Section 196-b of the New York State Labor Law.  This permanent sick leave entitlement is independent of, and is offered in addition to, any temporary federal and state leave entitlements specific to the COVID-19 pandemic. 

Effective Date

The law takes effect on September 30, 2020 and employers must allow employees to begin accruing sick leave on that date.  However, employees will not be entitled to use the accrued time until January 1, 2021.

Amount and Type of Leave

For small employers, the amount and type of leave depends on both employer’s net income in the previous tax year; and the number of employees at the workplace.  For larger employers, it depends solely on the number of employees.  See the table below:

The number of employees is calculated using a calendar year (January 1 – December 31) but the sick leave may be measured on a calendar year or any other regular, consecutive 12-month period.  So, an employer may use an employee’s start date to measure the year for the entitlement.

Accrual

Employees accrue sick leave at a rate of one (1) hour of sick leave earned per thirty (30) hours worked.  Employers may front-load the entire amount of leave at the beginning of the year but then they may not later reduce the amount of leave if the employee does not work sufficient hours to earn the leave that was front-loaded.

Use

An employee may use the sick leave for a mental or physical illness, injury or health condition of an employee or the employee’s family member, including diagnosis, care, treatment or preventative care. It can also be used for many types of absences necessitated because an employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking or human trafficking.

A family member includes the employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent or the child or parent of an employee’s spouse or domestic partner. Parent and child are broadly defined to include biological, foster, step- or adoptive, legal guardian and loco parentis situations.

An employer may set a reasonable minimum amount of time that must be used by the employee in taking the leave, not to exceed four (4) hours.  For example, an employer may require that the time be taken in at least one (1) hour increments but the employer cannot require sick leave to be taken in full day increments.

Documentation

An employer may not require the disclosure of confidential information as a condition of providing leave, such as information relating to the health condition of the employee or the employee’s family member or the absence due to domestic violence, sexual offense, stalking or human trafficking.  An employer is required to track the amount of sick leave provided to each employee and maintain this information for six (6) years. Upon request by an employee, the employer must provide a summary of the amount of sick leave accrued and used by the requesting employee within three (3) business days of the request.

Carryover and Termination

Employers with fewer than 100 employees may limit the carry over of sick leave to 40 hours per year.  Employers with 100 or more employees may limit carry over to 56 hours per year. Employer may limit the amount of sick leave that may be used in a calendar year to 40 or 56 hours, respectively.  So, if an employee has 40 accrued sick leave hours from 2021 and gets 40 new sick leave hours in 2022, employee would have a total of 80 sick leave hours.  If employer enacts a policy that limits the use of the sick leave to no more than 40 hours in any one year, then the employee can only use 40 hours in 2022, even though the employee has 80 hours accrued.

Employers are not required to pay employees for unused sick leave upon an employee’s termination of employment, regardless of the reason for the termination.

Key Issues for Employer

An employer that already provides a sick leave or paid time off policy that meets or exceeds the leave provided by this law need not provide additional leave. Employers should review their current handbooks, policies, employment contracts and collective bargaining agreements to:

• ensure that any current sick leave or PTO, provided by employer, satisfies the amount, type, accrual, carryover and use requirements of the new sick leave law;
• acknowledge and reference the provisions of this new sick leave law;
• reevaluate any policy that provides for front-loaded sick time and specify the amount of carryover and leave increments for sick leave (if nothing is specified, it will be construed in the light most favorable to the employee);
• ensure that the documentation requirements for sick leave are not more onerous than permitted by this new sick leave law; and
• provide that all leave entitlements will run concurrently, if permitted by applicable law.  

Generally, one paid leave entitlement can run concurrently with all unpaid leave entitlements, if expressly provided for in an employee handbook or agreement. Multiple paid leave entitlements must run consecutively.