Back in March, as the Coronavirus pandemic began to pick up steam, various state, federal and local laws were quickly enacted to address – among other things – employee illnesses and absences occasioned by COVID-19. This included laws requiring certain employers to provide eligible employees with paid sick leave, expanded family and medical leave, and other benefits if they were ill and/or taking care of a family member who was ill or subject to a quarantine order. While the federal government’s Families First Coronavirus Response Act and New York State’s emergency COVID-19 paid sick leave laws got plenty of press, within the State Budget signed into law the following month was another important provision that received somewhat less attention – specifically, an amendment to the Labor Law that requires all employers in New York State to provide paid or unpaid sick leave to their employee.

Unlike the COVID-related laws, which are temporary legislation enacted on an emergency basis, this new sick leave law (hereinafter the “NYSSLL”) is of permanent duration, and will be with us long after the pandemic is over (which will hopefully be soon). The NYSSLL is scheduled to take effect on September 30, 2020 and employees start accruing leave on that date (though they may not begin using their accrued leave until January 1, 2021). The following is a summary of the law and its key provisions.

Which Employers are Covered, and How Much Leave is an Employee Entitled to?

All employers are covered. How much leave an employee is entitled to and whether it is paid or unpaid depends upon the employer’s size and net income.

  • Employers with four or fewer employees in any calendar year, and net income of less than $1 million in the previous tax year are required to provide up to 40 hours of unpaid sick leave each calendar year.
  • Employers with 5 to 99 employees in any calendar year are required to provide at least 40 hours of paid sick leave each calendar year.
  • Employers with 100 or more employees in any calendar year are provide at least 56 hours of paid sick leave each calendar year.

A “calendar year” for purposes of determining employer size is January 1 to December 31. For purposes of using and accruing leave, the term means either January 1 to December 31, or any regular and consecutive 12-month period. Employees begin accruing leave at the rate of one hour for every 30 hours worked effective September 30, 2020 or when they begin employment, whichever is later. Alternatively, employers may “front load” the leave and give it all to the employee at the beginning of the calendar year, however if this is done the employer cannot reduce the leave if the employee subsequently works fewer hours, such that she would not have accrued all of the leave given to her.

For What Purposes May Leave be Used?

Much like New York City’s Earned Safe and Sick Time Act (NYCESSTA), leave under the NYSSLL may be used for a wide variety of purposes, including attending to an illness or injury affecting the employee and/or a family member, or to address an act or threat of domestic violence, unwanted sexual contact, stalking, or human trafficking affecting the employee or family members.

“Family member” is defined as an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, and 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 functioned as a parent when the employee was a minor child.  Employers may not require an employee to provide confidential information relating to any leave request as a condition of granting leave.

What is the Employer Obligated to Pay? What Other Obligations Does the Employer Have?

If an employee is entitled to paid sick leave, the leave is paid at minimum wage or the regular rate the employee is paid for hours worked, whichever is higher. Any sick leave that has been accrued but unused may be carried over, however an employer with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year, and larger employers may limit use to 56 hours per calendar year.

The NYSSLL requires that employers keep records of the amount of sick leave accrued and used. This information must be kept on file for a minimum of six years, and upon request an employer must provide an employee with a summary of leave accrued and used within three business days. Upon the employee’s voluntary or involuntary separation from employment, the employer is not required to pay employees for any unused leave.

It is unlawful to retaliate against, discriminate against, or penalize an employee for exercising his or her rights under this law. Upon returning from leave, the employee is entitled to be restored to his or her position with the same pay and benefits he or she had prior to leave.

My Company is Located in a Jurisdiction that Already Has a Paid Sick Leave Law. How is this New Law Different?

The NYSSLL provides that cities or municipalities with populations of $1M or more may enact their own laws that meet or exceeds that State’s law, and also that any existing sick leave laws (i.e. the NYCESSTA and Westchester’s equivalent) are to remain in effect.

Even if your company is located in New York City or Westchester and already complying with the laws of those jurisdictions, you should still review how the NYSSLL may impact your company with your attorneys, as while these laws are quite similar, they are not identical. For example, under the NYSSLL employers with 100 or more employees must provide up to 56 hours of paid sick leave. The NYCESSTA in contrast entitles employees up to a maximum of 40 hours of paid leave. Thus, a large New York City employer that is fully compliant with NYCESSTA but that fails to adjust its policies runs the risk of violating the State law if it limits its employees’ entitlement to 40 hours per year.

Lastly, it is important to note that the NYSSLL also provides that employers having policies that meet or exceed the law’s requirements are not required to provide additional leave. Again, this is something that should be reviewed with the assistance of your attorney, because even if you think you have a generous policy it may fall short in certain respects. For example, if you don’t permit carryover your policy does not “meet or exceed” what the State requires. Likewise, if your policy applies only to employee illnesses but not a family member’s illness, it fails to “meet or exceed” what the employee is entitled to by law.

If you have not already done so, we strongly recommend that you review the NYSSLL’s requirements with your attorneys and/or accountants to ensure your policies are up-to-date, and that you make sure all supervisors and human resources personnel within your company are aware of this new law and its requirements.

 

Kenneth R. Tuch, Esq. and Laurence I. Cohen, Esq. are partners with Tuch & Cohen LLP, with offices located at 1025 Old Country Road, Suite 411, Westbury, New York 11590. The firm specializes in commercial and employment litigation, including misclassification, wage and hour, employment practices, franchising and business practice matters, and transactional matters. The foregoing is provided solely as general information, is not intended as legal advice, and may not be applicable within your jurisdiction or to your specific situation. You are advised to consult with your attorneys for guidance before relying upon any of the information presented herein.

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Article by Lawrence I. Cohen

Laurence I. Cohen is a partner with Pike, Tuch & Cohen, LLP, a Bellmore, NY-based law firm.

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