NYS Budget Requires Permanent Sick Leave for Private Sector Employees

On the heels of recent federal and state COVID-19 related paid leave legislation, New York’s enacted budget for FY 2021 includes a broader provision which will amend the New York Labor Law to require all private sector employers to provide a certain amount of unpaid or paid sick leave to be used for specified medical and employee-related reasons. The new law goes into effect on September 30, 2020, and at this time, covered employees will be entitled to begin accruing leave time, but employees may be restricted from utilizing accrued sick leave until January 1, 2021. Public sector employers are not subject to the new paid leave requirements.

For the purpose of counting employees, “calendar year” is defined as the 12-month period from January 1 through and including December 31, but for all other purposes, it means any regular and consecutive 12-month period that an employer designates.

Accrual Requirements: Employees will be eligible to accrue one hour of sick leave for every 30 hours worked beginning September 30, 2020, or on the employee’s first day of employment, whichever occurs later. However, employers may elect to frontload the total number of required sick leave hours at the beginning of each calendar year.

Permissible Uses of Sick Leave: Upon an employee’s oral or written request to use leave, employers must provide accrued sick leave for the following:

Mental or physical illness, injury or health condition of an employee or their family member (regardless of whether it has been diagnosed or requires medical care at the time leave is requested);
Diagnosis, care or treatment of mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventative care for, employee or their family member;
When an employee or their family member has been a victim of domestic violence, family offense, sexual offense, stalking or human trafficking, and needs time for any of the following (referred to as “safe leave”):
- Obtaining services from domestic violence shelter, rape crisis center or other services program;
- Participating in safety planning, temporarily or permanently relocating or taking other actions to increase safety of employee or their family members;
- Meeting with an attorney or other social services provider to obtain information and advice on, and preparing for or participating in any criminal or civil proceeding;
- Filing complaint or domestic incident report with law enforcement;
- Meeting with a district attorney’s office;
- Enrolling children in a new school;
- Taking any other actions necessary to ensure health or safety of employee or employee’s family member or for protecting those who associate or work with employee

For the purposes of permissible uses, “family member” means 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. A “parent” is a biological, foster, step or adoptive parent, or a legal guardian or anyone who stood in loco parentis when the employee was a minor child. A “child” is a biological, adopted or foster child, legal ward or child of an employee standing in loco parentis

Logistics of Usage: Employers are allowed to set reasonable daily minimum increments of no more than four hours for use of sick leave; they must also pay employees for use of paid sick leave at a regular rate of pay or applicable minimum wage, whichever is greater; they must restore the employee to their prior position with the same pay and other terms and conditions of employment upon the employee’s return to work; and their payroll records must now also include the amount of sick leave provided to each employee under the new law.

Any unused sick leave must be carried over to the following calendar year; however, employers with fewer than 100 employees may limit the use of leave to 40 hours per calendar year and employers with 100 or more employees may limit such use to 56 hours per calendar year. Employers are not required to pay employees for unused sick leave upon separation from employment or at the conclusion of the calendar year.

Notably, employers will not be required to provide additional sick leave under the new law, if they maintain a sick leave or time-off policy that meets or exceeds the new legal requirements, including the accrual, carryover and use requirements set forth in the legislation. In addition, for unionized employees, collective bargaining agreements may provide for comparable benefits in lieu of those in the new paid leave program, or terms and conditions of sick leave that are different from the provisions of the new legislation. However, the terms of the CBA must expressly acknowledge the provisions of the new Labor Law Section 196-b.

No Retaliation: Employers are prohibited from discharging, threatening, penalizing, or in any other manner discriminating or retaliating against an employee because an employee exercises a right afforded under the paid sick leave law, including requesting and using sick leave.

The NYS Commissioner of Labor is authorized to develop regulations and issue guidance on the new paid sick leave requirements. We expect that such guidance will clarify several aspects of the new legislation, including what an employer’s policy must provide in order to meet the threshold requirements of the sick leave program. We will provide further information to you once we have a chance to review any guidance that is issued.