New York State’s new Paid Sick Leave Act, which was signed into law by Governor Cuomo on April 3, 2020, went into effect on September 30, 2020. On that date, employees began accruing sick leave. However, employees will not be able to use such leave until January 1, 2021.
Amount of Leave
The amount of leave to which an employee is entitled, and whether that leave is paid or unpaid, depends on a company’s number of employees and its net income, as follows:
- Employers with four or fewer employees and net income of $1 million or less in the previous tax year are required to provide 40 hours of unpaid sick leave per calendar year.
- Employers with four or fewer employees and net income of greater than $1 million in the previous tax year are required to provide 40 hours of paid sick leave per calendar year.
- Employers with five to 99 employees must provide 40 hours of paid sick leave per calendar year, while employers with 100 or more employees must provide 56 hours of paid sick leave per calendar year.
For the purposes of calculating the number of employees, a “calendar year” is defined as the 12-month period from January 1 through December 31. For the purposes of using and accruing leave, a “calendar year” means either January 1 through December 31 or any regular and consecutive 12-month period.
Accrual and Frontloading
Leave accrues at a rate of one hour per 30 hours worked. However, an employer may choose to provide employees with the entire amount of leave at the beginning of the year. If an employee chooses to frontload leave, the employer may not later reduce the amount of leave if the employee does not work sufficient hours to accrue the amount provided.
Use of Sick Leave
An employee may use sick leave for the following reasons:
- mental or physical illness, injury or health condition of an employee or the employee’s family member (regardless of whether a diagnosis has been obtained);
- diagnosis, care or treatment of a mental or physical illness injury, or health condition of, or the need for medical diagnosis of, or preventative care for, the employee or employee’s family member; or
- absence when an employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking or human trafficking and seeks or obtains services, including from a shelter, attorney or law enforcement, or takes “any other action to ensure the health or safety of the employee or family member or to protect those who associate or work with the employee.”
Covered Family Members
A family member is defined as an 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” is defined as “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.” Additionally, “child” is defined as a biological, adopted or foster child, a legal ward or a child of an employee standing in loco parentis.
Proof of Qualifying Reason
An employer may not require the disclosure of confidential information as a condition of providing leave, such as information relating to a mental or physical illness, injury or health condition of the employee or the employee’s family member.
An employer may set a reasonable minimum increment at which leave must be used. However, this increment may not exceed four hours.
Compensation must be at the employee’s regular rate or the minimum wage, whichever is greater.
Unused sick leave will be carried over. However, employers with fewer than 100 employees may limit an employee’s use of sick leave to 40 hours per year, and employers with 100 or more employees may limit use to 56 hours per year.
No Payout at Separation
Employers are not required to pay employees for unused sick leave upon an employee’s voluntary or involuntary separation from employment.
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 as a result of this law. The employer’s policy must also satisfy the accrual, carryover and use requirements of the law.
- Retaliation: An employer may not retaliate or discriminate against or otherwise penalize any employee for requesting or using sick leave.
- Job Protection: An employee must be restored to his or her position with the same pay and terms and conditions of employment upon return from leave.
- An employer is required to track the amount of sick leave provided to each employee and maintain this information in its payroll records for six years.
- Upon request by an employee, the employer must provide within three business days a summary of the amount of sick leave accrued and used by the requesting employee.