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.
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:
|New York Paid Sick Leave|
|Employers with four or fewer employees with net income less than $1,000,000 in previous tax year||Up to 40 hours of unpaid sick leave|
|Employers with four or less employees with net income more than $1,000,000 in previous tax year||Up to 40 hours of paid sick leave|
|Employers with five to 99 employees||Up to 40 hours of paid sick leave|
|Employers with 100+ employees||Up to 56 hours of paid sick leave|
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.
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.
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.
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.
Leave may be taken for the following purposes:
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.
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.
An employee’s unused sick leave shall be carried over to the following calendar year, provided, however, that:
Employees are not entitled to a payout of unused sick leave upon the employee’s termination, resignation, retirement, or other separation from employment.
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.
Nothing in this law shall be construed to:
In the case of (1) or (2) above, the CBA must specifically acknowledge the provisions of the law.
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.
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.
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.
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.
The Department of Labor Commissioner shall have the authority to adopt regulations and issues guidance effectuating this law.
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: