New York State Governor Andrew M. Cuomo has signed into law a permanent program for unpaid and paid sick leave for all New York employees. This permanent sick leave law comes a few weeks after the state enacted emergency temporary sick leave provisions relating to COVID-19.

On 3 April 2020, New York State Governor Andrew M. Cuomo signed into law the 2021 fiscal year budget that includes an unpaid and paid sick leave program for all New York employees, which comes into effect on 30 September 2020. This permanent sick leave law comes a few weeks after the state enacted emergency sick leave provisions relating to the COVID-19 crisis.

Paid and unpaid sick leave provisions

The new bill amends New York’s existing labour law as follows:

  • Employers with four or fewer employees in any calendar year and a net income of one million USD or less in the previous tax year must provide each employee with up to 40 hours of unpaid sick leave in each calendar year.
  • Employers with four or fewer employees in any calendar year and a net income of greater than one million USD in the previous tax year, or those with 5 to 99 employees, must provide each employee with up to 40 hours of paid sick leave in each calendar year.
  • Employers with 100 or more employees must provide at least 56 hours of paid sick leave in each calendar year.

For purposes of calculating the number of employees, a ‘calendar year’ is defined as 1 January through 31 December.

Accrual

Employees accrue one hour of sick leave for every 30 hours worked, beginning on either the first day of employment or the effective date of the sick leave law (30 September 2020), whichever is later.

Employers are permitted to frontload all of the required unpaid or paid sick leave to their employees, so long as the employer does not retroactively reduce or revoke any amount of the sick leave based on the employee's hours actually worked during the calendar year.

Sick leave use

Employees begin accruing sick leave benefits on 30 September 2020. However, employers may restrict the use of accrued sick leave until 1 January 2021. Employers may also set a reasonable minimum increment for the use of sick leave, not exceeding four hours.

Employees may use sick leave for the following purposes:

  • for a mental or physical illness, injury, or health condition of an employee or the employee's family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that the employee requests leave;
  • for the diagnosis, care (including preventive care), or treatment of a mental or physical illness, injury, or health condition of an employee or the employee's family member; or
  • for any of the following reasons when the employee or employee's family member has been the victim of domestic violence, a family offence, sexual offence, stalking, or human trafficking:
    • to obtain services from a domestic violence shelter, rape crisis center, or other similar services program;
    • to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or the 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; or
    • 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.

Rate of pay

Paid sick leave must be provided at the greater of the employee's regular rate of pay for hours worked or the applicable minimum wage.

Carryover

An employee's unused sick leave carries over to the following calendar year. The law is silent on how and whether frontloading an employee's sick leave at the start of the calendar year affects the employer's carryover obligations. However, employers may limit the use of sick leave as follows:

  • 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 are not required to pay an employee for unused sick leave upon the employee's termination, resignation, retirement, or other separation from employment.

Confidentiality

Employers are prohibited from conditioning the use of paid sick leave on the disclosure of confidential information of an employee or an employee's family member relating to an employee's mental or physical illness, injury, or health condition, or relating to absence from work due to domestic violence, a sexual offence, stalking, or human trafficking.

Records

Employees may make an oral or written request for a summary of the amounts of sick leave accrued and used by the employee in the current or previous calendar year. Upon receiving the request, employers must provide the information to the employee within three business days.

Employers are also required to establish, maintain, and preserve, for not less than six years, accurate payroll records showing the amount of sick leave provided to each employee, along with other information required under New York labour law.

No retaliation

Employers are prohibited from discharging, threatening, penalizing, or in any other manner discriminating or retaliating against an employee because an employee exercises a right afforded under the paid sick leave law, including requesting and using sick leave.

Job protection

Employees who take sick leave pursuant to the new sick leave law must be restored to the position of employment held prior to any sick leave taken, including with the same pay and other terms and conditions of employment.

No preemption

The new sick leave law does not preempt already existing local sick leave laws, and permits cities with a population of one million or more to enact a local sick leave law or ordinance that meets or exceeds the requirements under the statewide law. Therefore, the existing sick leave provisions enacted in Westchester County and New York City still apply.

Collective bargaining agreements

Employers and unions are permitted to enter into a new CBA on or after 30 September 2020 that provides a comparable benefit for employees in the form of paid days off, so long as the paid days off come in the form of leave, compensation, or other employee benefits, or some combination of those.

The law does not address whether it supplants sick leave benefits provided under existing CBAs entered into before 30 September 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.