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Earlier this year, on April 3, 2020, Governor Andrew Cuomo signed the New York State budget bill for fiscal year 2021, which, among other things, includes a statewide sick leave law. Specifically, the bill added Section 196-b to the New York Labor Law, which will require private employers to provide their employees with sick leave each calendar year. The law takes effect, and eligible employees will begin accruing sick leave on September 30, 2020 – however, employers need not allow employees to use the accrued sick leave before January 1, 2021.

The amount of sick leave employees are eligible to accrue, and whether it is paid or unpaid, is determined by the employer’s number of employees and net income in a given calendar year, as follows:

1. Employers with four or fewer employees and a net income of less than $1 million in the previous tax year must provide employees with at least 40 hours of unpaid sick leave per calendar year.
2. Employers with four or fewer employees and a net income of greater than $1 million in the previous tax year must provide employees with at least 40 hours of paid sick leave per calendar year.
3. Employers with between five and 99 employees in any calendar year must provide employees with at least 40 hours of paid sick leave per calendar year.
4. Employers with 100 or more employees in any calendar year must provide employees with at least 56 hours of paid sick leave per calendar year.

For purposes of determining an employer’s size, a “calendar year” means the 12-month period from January 1^st through December 31^st. For purposes of employees’ use and accrual of sick leave and all other purposes under the sick leave law, a “calendar year” means January 1^st through December 31^stor any other consecutive 12-month period determined by the employer.

The following are a few key provisions of the New York State paid sick leave law:

• Employees accrue one hour of sick leave for every 30 hours worked, up to the calendar year caps set forth above. Alternatively, as opposed to requiring employees to accrue sick leave, employers may front-load an employee’s full annual allotment of sick leave at the beginning of each calendar year.
• Employees can carryover accrued, unused sick leave from one calendar year to the next, but employers can cap the amount of sick leave employees may actually use each calendar year in line with the annual accrual caps above (i.e., employers with less than 100 employees can limit employee use to 40 hours of sick leave per calendar year and employers with 100 or more employees can limit employee use to 56 hours of sick leave per calendar year). In the law’s current state, employers who front-load paid sick leave at the beginning of the calendar year are technically required to allow for carryover as the law does not currently include an applicable exemption, but we anticipate this issue will be clarified in regulations and/or guidance.
• Paid sick leave may be used for “sick” and “safe” leave purposes, including for (i) the employee’s or the employee’s family member’s illness, injury, or health condition; (ii) the employee’s or the employee’s family member’s need for a diagnosis, care, or treatment of an illness, injury, or health condition, or preventive care; and (iii) an absence when the employee or the employee’s family member is the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking for certain permitted purposes, such as (without limitation) to obtain services from a domestic violence shelter or other service program, to consult with an attorney or meet with a district attorney’s office, to file a complaint or report with law enforcement, or to take other actions necessary to protect the health or safety of the employee or the employee’s family member.
• Paid sick leave is paid at the employee’s regular rate of pay. Employers are not required to pay out employees for accrued but unused sick leave at the end of a calendar year or upon termination of employment. Employers should follow best practice and ensure this is reflected in their written sick leave policy.
• Employers may set a reasonable minimum increment for the use of sick leave, but it cannot exceed four hours.
• Use of sick leave is job-protected, and thus employers must restore employees to their same position upon returning from sick leave, with the same pay and other terms and conditions of employment.
• Employees who request sick leave cannot be required to disclose any confidential information relating to the specific reason for the requested sick leave.

There are a number of issues not specifically addressed in the New York State paid sick leave law, which are covered in existing local sick leave laws, such as the New York City Earned Safe and Sick Time Act and the Westchester County Earned Sick Leave Law. For example, the New York State paid sick leave law is currently silent regarding an employer’s right to require employees to provide advance notice of the need for sick leave. New York City and Westchester sick leave laws allow employers to require seven days’ advance notice if the need for sick leave is foreseeable (e.g., a planned doctor’s appointment) and notice “as soon as practicable” if the need for sick leave is unforeseeable.

In addition, the New York State paid sick leave law is currently silent regarding an employer’s right to request reasonable documentation from an employee to substantiate the employee’s need for sick or safe leave and to show that the leave is being used for a permitted purpose under the law. New York City and Westchester sick leave laws allow employers to request documentation if an employee uses more than three consecutive days as sick leave.

Employers who already offer paid sick leave or other paid time off to employees need not provide additional leave, as long as such existing leave policies meet or exceed the requirements under the New York State paid sick leave law – i.e., such policies must provide at least the minimum amount of leave required under the new law, allow employees to use leave for the same permitted purposes under the new law, and satisfy the accrual and carryover requirements of the new law. Accordingly, New York City and Westchester County employers who already provide employees with paid sick leave will need to ensure they are compliant with all differing obligations under the New York State law, such as accrual rates. Under the New York State law, employers with 100 or more employees must offer at least 56 hours of paid sick leave per calendar year, as opposed to 40 hours under New York City and Westchester County laws.

The New York Department of Labor is expected to issue regulations and/or guidelines prior to the law’s September 30, 2020 effective date, in order to clarify open issues. In the meantime, employers, including those in New York City and Westchester County, should review and, as necessary, update their policies and practices to ensure compliance with the New York State paid sick leave law.

For more information on the topic discussed, contact:

• Andrew W. Singer  |  singer@thsh.com  |  212-508-6723
• Andrew P. Yacyshyn  |  yacyshyn@thsh.com  |  212-508-6792
• Elizabeth E. Schlissel  |  schlissel@thsh.com  |  212-508-6714
• Jason B. Klimpl  |  klimpl@thsh.com  |  212-508-7529
• Joel A. Klarreich  |  jak@thsh.com  |  212-508-6747
• Stacey A. Usiak  |  usiak@thsh.com  |  212-702-3158