Key Takeaways

• New York State 2020–21 budget mandates employer-provided sick leave benefits beginning January 2021, adding Section 196-b to New York Labor Law

• In scope of covered employers and amount of leave provided, New York’s legislation will be one of the most generous sick leave laws in the nation

• The new paid sick leave passed through the budget should not be confused with the New York quarantine/isolation leave law passed on March 18, 2020 in response to the COVID-19 pandemic

The budgetary process in New York has long included legislation affecting employers doing business in New York. Many will recall that New York Paid Family Leave was enacted through the 2016–17 budget. Despite the COVID-19 pandemic, this year was no different. As part of New York State’s 2020–21 budget, Gov. Andrew M. Cuomo signed legislation which mandates employer-provided sick leave benefits beginning in January 2021. The legislation adds Section 196-b to New York Labor Law.

With this budget, New York joins more than a dozen other states (e.g. Arizona, California, Connecticut, Maine, Maryland, Massachusetts, Michigan, Nevada, New Jersey, Oregon, Rhode Island, Vermont, Washington) and other localities (e.g. Washington D.C., New York City, Philadelphia, Los Angeles) that have already enacted some form of state-mandated paid sick leave. Once it goes into effect, New York’s legislation will be one of the most generous sick leave laws in the nation when considering the scope of covered employers and the amount of leave provided. Paid sick leave will not become available to employees until January 1, 2021.

The new paid sick leave passed through the budget should not be confused with the New York quarantine/isolation leave law passed on March 18, 2020 in response to the COVID-19 pandemic, which became effective immediately and expires on December 31, 2020, that we reported on previously.

Employer Coverage

The new New York Paid Leave legislation follows the increasingly common structure in New York of creating a tiered system depending on the size of employer. Under the new law, paid sick leave must be provided as follows:

For purposes of counting employees, the law looks at the number of employees in any “calendar year,” starting on January 1st and ending on December 31st.

Leave Accrual

Employees accrue sick leave at a rate of not less than one hour per every 30 hours worked, beginning at the commencement of employment or the law’s effective date, whichever is later.

Employers may elect to provide employees with the total amount of sick leave required to fulfill their obligations pursuant to the law at the beginning of the calendar year, provided, however that no employer shall be permitted to reduce or revoke any such sick leave based on the number of hours actually worked by an employee during the calendar year.

Increments of Leave Usage and Amount of Pay

Employers may set a reasonable minimum increment for the use of sick leave which shall not exceed four hours. An employee shall receive compensation at their regular rate of pay or the applicable minimum wage, whichever is greater.

Leave Request Procedure

The law states that upon the oral or written request of an employee, an employer shall provide accrued sick leave. Significantly, employers may not require the disclosure of confidential information relating to a mental or physical illness, injury, or health condition of such employee or such employee’s family member, or information relating to absence from work due to domestic violence, a sexual offense, stalking, or human trafficking, as a condition of providing sick leave pursuant to this section.

Given the above, it is unclear at this time what, if any, documentation an employer may require employees to submit in order to receive the leave.

Qualifying Reasons for Leave

Leave may be taken for the following purposes:

1. for a mental or physical illness, injury, or health condition of such employee or such employee’s family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that such employee requests such leave;
2. for the diagnosis, care, or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventive care for, such employee or such employee’s family member; or
3. for 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 pursuant to subdivision thirty-four of section two hundred ninety-two of the executive law, 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.

As it relates to leave for victims of domestic violence described in (3) above, the reasons for the leave must be related to the domestic violence, family offense, sexual offense, stalking, or human trafficking. However, a person who has committed such domestic violence, family offense, sexual offense, stalking, or human trafficking is not eligible for leave for situations in which the person committed such offense and was not a victim, notwithstanding any family relationship.

Additionally, employers will need to apply this section of law in conjunction with the New York Human Rights Law, which was expanded to include additional protections for domestic violence victims, as we previously reported in fall 2019.

Return to Work

Upon return to work following use of paid sick leave, the employee shall be restored to the position of employment held by the employee with the same pay and other terms and conditions of employment.

Leave Carry Over

An employee’s unused sick leave shall be carried over to the following calendar year, provided, however, that:

1. an employer with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year; and
2. an employer with 100 or more employees may limit the use of sick leave to 56 hours per calendar year.

Employees are not entitled to a payout of unused sick leave upon the employee’s termination, resignation, retirement, or other separation from employment.

Effect on Existing Employer Leave Policies

The law shall not be construed to prohibit or prevent an employer from providing an amount of sick leave, paid or unpaid, which is in excess to the requirements under this law.

Indeed, employers are not required to provide any additional sick leave pursuant to this section if the employer has adopted a sick leave policy or time off policy that provides employees with an amount of leave which meets or exceeds the requirements under the law and satisfies the accrual, carry over, and use requirements.

Effect on Collective Bargaining Agreements

Nothing in this law shall be construed to:

1. prohibit a collective bargaining agreement (CBA) entered into, on or after the effective date of this section from, in lieu of the leave provided for in this section, providing a comparable benefit for the employees covered by such agreement in the form of paid days off; such paid days off shall be in the form of leave, compensation, other employee benefits, or some combination thereof; or
2. impede, infringe, or diminish the ability of a certified collective bargaining agent to negotiate the terms and conditions of sick leave different from the provisions of this section.

In the case of (1) or (2) above, the CBA must specifically acknowledge the provisions of the law.

Effect on Other Laws

The law does not preempt or restrict New York City’s existing paid sick leave law. Further, the law does not prohibit the enactment of certain future laws by localities in New York that meet or exceed the requirements under this law.

Employee Information Requests

Upon the oral or written request of an employee, employers must provide a summary of the amounts of sick leave accrued and used by such employee in the current calendar year and/or any previous calendar year. The employer shall provide such information to the employee within three business days of such request.

Employer Records

Section 195 of New York Labor Law is also modified to require employers to maintain and preserve the amount of sick leave provided to employees for at least six years.

Prohibited Discrimination

Employees that request sick leave or use sick leave shall not be subject to discharge, threats, or penalties, or otherwise be discriminated or retaliated against.

Regulations/Guidance

The Department of Labor Commissioner shall have the authority to adopt regulations and issues guidance effectuating this law.

Effective Date

The law takes effect 180 days after it became law, provided the Department of Labor has promulgated rules and regulations before that effective date.

For further information or immediate guidance, contact:

• Caroline J. Berdzik
• Peter J. Woo
• Kristin Klein Wheaton
• Christopher P. Maugans
• Or another member of our Employment and Labor practice