Earlier this year, the New York State legislature passed a statewide sick leave law, ensuring that employees in localities beyond New York City and Westchester have access to sick leave. Under the new State law, employees began to accrue sick leave on September 30, 2020 but are not eligible to use accrued leave until January 1, 2021. And, to harmonize the new State law requirements with its existing sick and safe time rules, the New York City Council amended the New York City Earned Safe and Sick Time Act effective September 30, 2020.

New York State’s Sick Leave Law

All employers in New York State are now required to provide sick leave to their employees. Depending on the size of the employer, the leave may be paid or unpaid, and the amount of leave required in each calendar year will vary:

Under the State law, employees begin to accrue sick leave upon commencement of employment and will accrue sick leave at a rate of 1 hour for every 30 hours worked. Employers may also frontload the amount of sick leave employees would be eligible for in a calendar year and make it available to employees at the beginning of each year. Upon the oral or written request of an employee, an employer must provide a written summary of the employee’s accrued but unused sick leave for the year within 3 days of the employee’s request.

Sick leave benefits must be paid at the employee’s regular rate of pay at the time the leave is taken. Employees may use sick leave for: (a) the diagnosis or treatment of a mental or physical illness, injury or health condition of the employee or an employee’s “family member” (as defined in the law) or (b) an absence from work due to an enumerated list of reasons where an employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking or human trafficking (i.e., to obtain services from a domestic violence shelter or to meet with a district attorney’s office). Employers are prohibited from requiring employees to disclose confidential information relating to the employee’s or their family member’s mental or physical condition or other information relating to the employee’s reason for the use of sick leave as a condition of providing such leave.

Employers may set minimum increments for use of sick leave, which cannot exceed 4 hours. Employers must permit employees to carry over sick leave from one year to the next but may cap the amount of sick leave that employees are allowed to use each year at the hour thresholds set forth in the table above. Notably, employers are not required to pay for accrued but unused sick leave upon an employee’s separation from employment. Employers that offer more generous leave programs (such as a paid time off program) that permits employees to use time off for the purposes outlined in the statute are not required to offer additional sick and safe time under the new law.

The State law prohibits employers and their agents from discriminating or retaliating against an employee for an employee’s exercise of his or her rights under the law, including requesting and using sick leave. Notably, once an employee returns from sick leave, the employee must be reinstated to his or her position with the same terms and conditions of employment.

New York City Amends its Safe and Sick Leave Law

The New York City Council amended the New York City Earned Safe and Sick Time Act (the “ESSTA”) to align the ESSTA with the State’s sick leave law requirements, effective September 30, 2020. In addition to mirroring the State law requirements and expanded leave benefits, the ESSTA amendments impose new recordkeeping and notice requirements on employers and make other changes including:

• Requiring employers to track employees’ amount of (a) used safe and sick leave and (b) accrued but unused safe and sick leave and to report such amounts on employees’ regular paystubs or “other form of written documentation provided to the employee each pay period.” (note: while the requirement came into effect on September 30, 2020, employers have a safe harbor until November 30, 2020 to come into compliance);
• Requiring employers to give current employees a written notice of their rights under the amended ESSTA on or before October 30, 2020 and to new employees upon hire (note: as of the date of this alert, the Department of Consumer and Worker Protection—formerly known as the Department of Consumer Affairs—has not published an updated ESSTA notice of rights);
• Expanding the definition of “domestic worker” and providing such workers up to 40 hours of safe and sick leave;
• Requiring employers to reimburse employees who have been on leave for 3 or more consecutive work days for any health care provider or other service provider charges an employee incurs in procuring documentation requested by the employer evidencing the employee’s need to use safe or sick time;
• Clarifying the prohibition on retaliation and expanding the definition of an “adverse action” taken against employees for exercising or attempting to exercise their rights under the ESSTA to include, without limitation “maintenance or application of an absence control policy that counts protected leave for safe/sick time as an absence that may lead to or result in an adverse action”;
• Empowering New York City’s corporation counsel to investigate and bring civil actions for violations, including “pattern and practice” violations and capping civil penalties for such actions at $15,000 and $500 to each employee; and
• Clarifying the fines for violations and that fines will be administered on a per employee basis.

Employers in New York State and New York City should familiarize themselves with the State and City sick leave requirements to ensure compliance and update applicable policies as necessary.