New York State Enacts Broad Paid Sick Leave Law

New York Governor Andrew Cuomo signed legislation on April 3 creating a statewide paid sick leave requirement (the Paid Sick Leave Law), which allows employees to use accrued leave beginning January 1, 2021, and will require large employers in New York State to provide at least 56 hours of paid sick time per year to eligible employees, which is 16 hours more than required under the New York City Sick Leave Law. Employers should take steps now to track accrual of sick leave beginning September 30, 2020, when the new law will take effect.

The Paid Sick Leave Law

Amount, Accrual, and Carryover

The Paid Sick Leave Law requires employers to provide employees in New York state with sick leave in varying amounts based on the size of the employer as follows:

• Employers with four or fewer employees and a net income of $1 million or less in the previous tax year: 40 hours per calendar year of unpaid sick leave;
• Employers with four or fewer employees and a net income of greater than $1 million in the previous tax year: 40 hours per calendar year of paid sick leave;
• Employers with between five and 99 employees (regardless of employer income): 40 hours per calendar year of paid sick leave; and
• Employers with 100 or more employees (regardless of employer income): 56 hours per calendar year of paid sick leave.

Paid leave shall be compensated at the employee’s regular rate of pay or minimum wage, whichever is greater. The Paid Sick Leave Law allows an employer to select “a regular and consecutive twelve-month period” as the calendar year, except for the purposes of employee counts for coverage thresholds, which are determined by looking at a 12-month period from January 1 to December 31.

Employees will accrue leave at a rate of one hour of leave per every 30 hours worked. This is the same accrual rate required under the New York City Earned Sick and Safe Time Act (the New York City Sick Leave Law). Accrual under the Paid Sick Leave Law must begin at the later of the employee’s start date and September 30, 2020. The Paid Sick Leave Law allows employers to “front load” leave at the beginning of a calendar year so long as they do not reduce or revoke leave depending on time actually worked. Employees must be allowed to carry over unused sick leave to the following calendar year, but employers can cap the amount of sick leave provided as well as used in a given calendar year to 40 hours per year where the employer has 99 or fewer employees or 56 hours per year where the employer has 100 or more employees. Employers are not required to pay out unused sick leave upon an employee’s termination.

Permitted Uses

Employees will be eligible to take accrued sick leave beginning January 1, 2021, for any of the following purposes:

• An employee or employee’s family member’s mental or physical illness, injury, or health condition (which does not need to be diagnosed or require medical care at the time of the leave request)
• The diagnosis, care, or treatment of an employee or family member’s mental or physical illness, injury, or health condition (including preventive care)
• Certain delineated uses related to circumstances where an employee or an employee’s family member has been the victim of domestic violence, a family offense, a sexual offense, stalking, or human trafficking (Safe Leave)

Specifically permitted uses relating to Safe Leave are very similar to those provided under the New York City Sick Leave Law and include absences to

• obtain services from a domestic violence shelter, rape crisis center, or other services program;
• participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members;
• 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;
• file a complaint or domestic incident report with law enforcement;
• meet with a district attorney’s office;
• enroll children in a new school; and
• 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.

The Paid Sick Leave Law defines a “family member” as an employee’s child (including a biological, adopted, or foster child, a legal ward, or the child of an employee standing in loco parentis), spouse, domestic partner, parent (including a biological, foster, step- or adoptive parent, legal guardian, or person who stood in loco parentis when the employee was a minor), grandchild or grandparent (including the child or parent of an employee’s domestic partner). Notably, this definition of family member is narrower than the corresponding definition under the New York City Sick Leave Law, which also permits employees to use sick leave on behalf of any individual whose close association with the employee is the equivalent of a family relationship.

Employers can require that employees use sick leave in increments of up to four hours at a time. Employers cannot require the disclosure of confidential information relating to a mental or physical illness, injury, or health condition of an employee or family member, nor can an employer require disclosure of information relating to an absence from work due to domestic violence, a sexual offense, stalking, or human trafficking as a condition prior to providing sick leave.

Other Key Provisions

The Paid Sick Leave Law does not require that employers provide this leave separate and on top of leave already provided by the employer. Therefore, an employer in New York City with 100 or more employees who already provides 56 hours of paid sick and safe leave does not need to provide additional leave to meet the requirements of the Paid Sick Leave Law.

Employers cannot discriminate or retaliate against an employee for using or requesting the use of sick leave. Upon return to work, employees must be returned to the same terms and conditions of employment proceeding the leave.

The Paid Sick Leave Law exempts alternative sick leave arrangements in collective bargaining agreements where the collective bargaining agreement specifically acknowledges the provisions of the Paid Sick Leave Law.

Upon an employee’s oral or written request, employers must provide the employee with a summary of the amounts of sick leave accrued and used by the employee in the current and/or previous calendar year within three business days. Employers must maintain records on the amount of sick leave provided to each employee for six years.

The Paid Sick Leave Law authorizes the New York State Department of Labor (NYSDOL) to promulgate regulations, including “standards for the accrual, use, payment, and employee eligibility.” The Paid Sick Leave Law also requires the NYSDOL to conduct a public awareness outreach campaign and provide additional information to employers and employees about the provisions of the Paid Sick Leave Law.

Finally, the legislation expressly does not preempt a city with a population of 1 million or more from enacting and enforcing a law which “meet[s] or exceed[s] the standard or requirements for minimum hour and use set forth” in the legislation – but as it stands, the New York City Earned Sick and Safe Time Act is less protective as to minimum hours.

Analysis

The requirements set forth by the Paid Sick Leave Law will be familiar to New York City employers because they largely track those in the New York City Sick Leave Law. The most notable difference between the Paid Sick Leave Law and New York City Sick Leave Law is that, for employers with 100 or more employees, the Paid Sick Leave Law requires 56 per hours of paid sick leave per year whereas the New York City Sick Leave Law only requires 40 hours of paid sick leave per year. Accordingly, employers who only provide 40 hours of paid sick leave per year to employees, including part-time employees, may need to adjust their sick leave policies.

Notably, while the Paid Sick Leave Law expressly does not preempt a municipal paid sick leave law for a city with a population of 1 million or more (provided the municipal law meets or exceeds standards for minimum hours and use), the Paid Sick Leave Law is silent as to whether counties or smaller cities in New York can enact local paid sick leave laws. Westchester County, for example, has an existing paid sick and safe leave law.

While the Paid Sick Leave Law exempts alternative arrangements in collective bargaining agreements that “acknowledge the provisions” of the Paid Sick Leave Law, it does not state if such collective bargaining agreements need to expressly reference the statute by name, or if acknowledging the existence of a state law would be sufficient.

Additionally, unlike the New York City Sick Leave Law, the Paid Sick Leave Law does not contain a requirement that employers distribute notice to employees concerning their rights under the state law.

The forthcoming NYSDOL guidance may answer some of the open questions regarding the Paid Sick Leave Law, but employers of New York state employees should take steps now to ensure that they are able to track accrual of sick leave under this law beginning on September 30, 2020, and then begin providing paid sick leave on January 1, 2021.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

New York
Leni Battaglia
Kimberley Lunetta
Melissa Rodriguez
Douglas Schwarz
Kenneth Turnbull