On April 3, the state of New York amended the New York Labor Law to provide sick and safe leave for all New York employees, joining the numerous states and local governments that have done the same for their citizens. Those familiar with the New York City Earned Sick and Safe Leave Law will recognize many provisions of the new law, which calls for employees to begin accruing leave on Sept. 30, 2020, and authorizes the use of this leave starting Jan. 1, 2021.
Amount of Leave and Methods of Accrual
The new sick and safe leave provisions apply to all employers in New York; however, like other recently enacted New York leave provisions, the amount of leave employees can accrue, and whether it is paid or unpaid, depends on the employer’s size and/or revenue in a calendar year (defined as Jan. 1 through Dec. 31).
- Employers with 100 or more employees: Employees must be permitted to accrue up to 56 hours of paid sick leave.
- Employers with between five and 99 employees, and employers with four or fewer employees and a net income greater than $1 million: Employees must be permitted to accrue up to 40 hours of paid sick leave.
- Employers with four or fewer employees and a net income less than $1 million: Employees must be permitted to accrue up to 40 hours of unpaid sick leave.
Employees begin accruing leave on Sept. 30, 2020, but may not use it until Jan. 1, 2021.
Employers have two options for handling accruals. They can either: (a) permit employees to accrue leave at a rate of one hour of leave for every 30 hours worked, up to the applicable cap during the year; or (b) frontload at the beginning of the year the total amount of leave the employee could accrue over the course of a calendar year.
While the second option seems administratively simpler, the law has two provisions that employers should consider. First, if an employer provides the leave all at once, it cannot later reduce the sick leave if the employee does not work a sufficient number of hours to have accrued it. Second, unlike the New York City Earned Sick and Safe Leave Act, there is no blackout period after hire during which an employee cannot use leave. Thus, employees hired after Jan. 1, 2021, will be eligible to use all of their accrued leave immediately upon hire.
Carryover and Rate of Pay
Employees are permitted to carry over leave from year to year, and the law does not limit the amount of carried-over leave that employees may accrue. Employers, however, are free to establish their own calendar year for accruals and carryover, so long as it is a regular and consecutive 12-month period, and may limit employees to using only the time that they are entitled to accrue in any calendar year. Thus, for example, an employer whose employees can accrue only 40 hours per year can limit those employees to using only 40 hours per year, regardless of how many hours they carry over year to year.
Employees must be paid for leave time at the greater of the employee’s regular rate of pay or the state minimum wage, and employees are not entitled to the value of any unused leave when the employment relationship ends.
Employees may use accrued leave for any of the following reasons.
- A mental or physical illness, injury or health condition of the employee or the employee’s family member, regardless of whether it was diagnosed or required medical care at the time the employee requested the leave.
- The diagnosis, care or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of preventative care for, the employee or the employee’s family member.
- An absence from work related to the employee or the employee’s family member being a victim of domestic violence, family offense, sexual offense, stalking or human trafficking, including: to obtain services from a domestic violence shelter, rape crisis center or other service program; to take actions to increase safety, including participating in safety planning or temporarily or permanently relocating the employee or the employee’s family members; to meet with an attorney or a 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 members, or to protect those who associate with or work with the employee.
- to obtain services from a domestic violence shelter, rape crisis center or other service program;
- to take actions to increase safety, including participating in safety planning or temporarily or permanently relocating the employee or the employee’s family members;
- to meet with an attorney or a 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 members, or to protect those who associate with or work with the employee.
A “family member” for the purposes of the statute is defined very broadly. This definition includes not only immediate family members — such as a parents, spouses, domestic partners and children (biological, adoptive, foster and step) — but also grandparents, grandchildren and the child or parent of an employee’s spouse or domestic partner.
Employers may set minimum increments for use of this leave, with four hours being the smallest permissible increment. Additionally, employers cannot, as a condition of providing leave, require employees to disclose confidential information related to their own or their family members’ mental or physical illness, injury or health condition or absence related to domestic violence, a sexual offense, stalking or human trafficking.
The law prohibits employers from retaliating or discriminating against employees because they have requested or used sick time. Upon return to work, employees must be returned to their position with the same pay and other terms and conditions of employment.
Effect on Existing Policies and Future Collective Bargaining Agreements
The new law does not require employers to modify existing sick leave or paid-time-off policies if the provisions of those policies meet or exceed the provisions of this law. Thus, employers who have policies that satisfy the accrual, carryover, use and payment provisions of the new law do not need to make any changes.
The law does not prevent employers who enter into collective bargaining agreements after Sept. 30, 2020, from negotiating a comparable benefit in paid days off, leave, compensation or other benefits. Collective bargaining agents may also negotiate sick leave terms different from the law, so long as the collective bargaining agreement specifically acknowledges the new law.
Effect on New York City and Westchester County Sick and Safe Leave Laws
Notably, the law contains a carve-out for Westchester County and New York City, both of which have enacted their own sick and safe leave provisions. The new law states that it does not prevent any city of more than 1 million people from enacting a law that meets or exceeds the new law’s requirements, and any paid sick leave benefits provided by a municipal corporation in effect as of Sept. 30, 2020 shall not be diminished or limited as a result.
Record-Retention and Information Obligations
Consistent with their existing pay-records-retention obligations, the law requires employers to maintain records of the amount of leave provided to each employee for six years. Further, upon oral or written request from an employee, within three business days, an employer must provide an employee with a summary of the amounts of sick leave accrued and used by the employee in the current year and/or any previous calendar year.
Actions for Employers
Employers with New York operations should review their current leave policies to see what, if any, changes they need to make to comply with the new law. Employers should also review their collective bargaining agreements to determine if the law may affect any of their provisions. For those employers who need to make modifications, the best way to comply and the manner of accrual will depend on many individualized factors.
For further information or questions about the information contained in this legal alert, please contact the authors, your McGuireWoods contact, or a member of the firm’s labor and employment team.
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