Effective September 30, 2020, all New York State employers will have to comply with the requirements of the New York Sick Leave law introduced as part of the New York 2021 Budget. New York employers will be required to provide at least one hour of paid or unpaid sick leave for every 30 hours worked by the employee. Whether an employee is entitled to paid or unpaid leave, and the amount of leave an employee is entitled to, depends on the employer’s size.

New York employers will soon have to provide paid or unpaid sick leave as follows:

• Employers with 100 or more employees must provide up to 56 hours of paid sick leave a year.
• Employers with between five and 99 employees must provide up to 40 hours of paid sick leave a year.
• Employers with four or fewer employees and a net income of greater than $1 million in the previous tax year must provide up to 40 hours of paid sick leave a year.
• Employers with four or fewer employees and a net income of $1 million or less in the previous tax year must provide up to 40 hours of unpaid sick leave a year.

For the purposes of determining an employer’s number of employees, a calendar year means the 12-month period from January 1 through December 31. For all other purposes, a calendar year means the 12-month period from January 1 through December 31, or a regular and consecutive 12-month period, as determined by the employer.

Paid leave must be paid at an employee’s regular rate of pay. Employers are free to provide employees sick leave, paid or unpaid, or adopt a paid leave policy that provides additional benefits beyond what the new law requires.

An employee will begin to accrue sick leave at the commencement of employment or Sept. 30, 2020, whichever is later, and be permitted to begin using sick leave not sooner than Jan. 1, 2021. An employer may elect to “frontload” the total amount of sick leave required to fulfill its obligations under the law at the beginning of the year.

The Sick leave law allows employees to take leave for the following reasons:

• An employee’s or the employee’s family member’s mental or physical illness, injury, or health condition, regardless of whether such illness, injury or health condition has been diagnosed or requires medical care at the time that the employee requests such leave;
• The diagnosis, care or treatment of a mental or physical illness, injury or health condition of—or need for medical diagnosis of, or preventative care for—an employee or an employee’s family member; or
• An absence from work due to any of the following reasons when the employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking or human trafficking:
  • To obtain services from a domestic violence shelter, rape crisis center or other services program;
  • 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;
  • 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.

An employee’s unused sick leave must be carried over to the following year. However, employers may place a cap on the number of hours of sick leave an employee may use each year, so long as the cap is set at no less than 56 hours for employers of 100 or more and 40 hours for all others. The law does not require employees to be paid for any unused sick leave when employment ends.

Even those New York employers that already offer sick leave should take note of this state law and ensure compliance with it, including those employers in New York City and Westchester County, which will have to comply with both local and state requirements pertaining to sick leave. Notably, New York City employers with 100 or more employees will now be required to provide up to 56 hours of paid sick leave, rather than just the 40 hours required under New York City’s Earned Safe and Sick Time Act. This new sick-leave enactment also comes on the heels of New York State’s enactment of a separate sick-leave entitlement for those under a mandatory or precautionary order of quarantine or isolation due to COVID-19.

Though an employer must offer an amount of sick leave that complies with the requirements of the new state law, an employer could potentially modify its vacation time allocation in light of the required sick-leave offering or may choose to implement a general paid time-off policy that complies with the new law’s requirements.

To be ready for the new leave law, employers will have to ensure that they have a compliant policy and procedures in place to track leave accrual and use when the new law takes effect January 1, 2021.

The New York Department of Labor has yet to issue further guidance as to the overlap between the benefits provided under the New York Sick Pay and New York Paid Family Leave laws. Until further guidance is provided from the New York State Department of Labor, it is recommended that an employer’s paid time off policies specify whether or not the paid time off runs concurrently with other leave benefit laws.

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