New York State Sick Leave Goes Into Effect September 30, 2020

September 29, 2020
All New York state employers will soon be required to provide either paid or unpaid sick leave to employees under the New York State Sick Leave (“NYSSL”) law. Although NYSSL goes into effect on September 30, employees are not permitted to take NYSSL until January 1, 2021. Practically speaking, this means that employers selecting the accrual method for sick leave must be prepared to track accrual as of September 30, and to carry over accrued time for employee use starting January 1, 2021. The key requirements of NYSSL are outlined below.

Amount of Sick Leave Required Varies by Employer Size and Net Income. Under NYSSL, every employer is required to provide its employees with sick leave, as follows: 
  • Four or Fewer Employees. Employers with four or fewer employees in any calendar year shall provide to each employee up to 40 hours of unpaid leave in each calendar year.
  • Four or Fewer Employees & Net Income Above One Million Dollars. An employer that employs four or fewer employees in any calendar year and had a net income of greater than one million dollars in the previous tax year shall provide each employee with up to 40 hours of paid leave in each calendar year.
  • Five to Ninety-Nine Employees. Employers with between five and ninety-nine employees in any calendar year shall provide each employee with up to 40 hours of paid leave in each calendar year.
  • One Hundred or More Employees. Employers with one hundred or more employees in any calendar year shall provide each employee with up to 56 hours of paid leave in each calendar year.
Employers are permitted to provide an amount of sick leave, paid or unpaid, which is in excess of the requirements set forth in NYSSL, or to adopt paid leave policies that provide additional benefits to employees.

Accrual of Sick Leave. Employees shall accrue sick leave at a rate of not less than one hour per every 30 hours worked, beginning at the commencement of employment or September 30, 2020, whichever is later. Employers may elect to provide its employees with the total number of sick leave hours required under NYSSL at the beginning of each calendar year. 

Permitted Uses for Sick Leave. On or after January 1, 2021, an employer shall provide, upon the written or oral request of an employee, accrued sick leave for the following purposes:
  • Mental or physical illness, injury, or health condition of an employee or an employee’s family member, regardless of whether the illness, injury, or health condition has been diagnosed or requires medical care at the time the employee requests sick leave;
  • The diagnosis, care, or treatment of mental or physical illness, injury or health condition, or need for medical diagnosis of, or preventative care for, an employee or an employee’s family member; or
  • An absence from work related to an employee’s or an employee’s family member’s status as a victim of domestic violence, family offense, sexual offense, stalking, or human trafficking.
NYSSL broadly defines “family member” as “an employee’s 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 of an employee, or a person who stood in loco parentis when the employee was a minor child,” and “child” means “a biological, adopted, or foster child, a legal ward, or a child of an employee standing in loco parentis.”

Employers May Not Verify Sick Leave by Seeking Confidential Information. Employers may not, as a condition of providing sick leave, require the disclosure of confidential information relating to mental or physical illness, injury, health information of an employee or an employee’s family member, or information relating to absence from work related to domestic violence, a sexual offense, stalking, or human trafficking. 

Time Increments. An employer shall set a reasonable minimum increment for the use of sick leave, which shall not exceed four hours. Employees shall receive compensation for the use of paid sick leave at his or her regular rate of pay, or the applicable minimum wage, whichever is greater.

Unused Sick Leave. An employee’s unused sick leave shall be carried over to the following calendar year; however, an employer with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year, and an employer with 100 or more employees may limit the use of sick leave to 56 hours per calendar year. NYSSL does not require an employer to pay an employee for unused sick leave upon the employee’s termination, resignation, retirement, or other separation from employment. 

Discrimination. Employers may not discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee because that employee has exercised his or her rights under NYSSL.

Existing Leave Policies. Employers are not required to provide any additional sick leave pursuant to NYSSL if the employer has adopted a sick leave policy or time off policy that provides employees with an amount of leave that meets or exceeds the requirements of NYSSL. 

Collective Bargaining Agreements. NYSSL should not be construed to prohibit a collective bargaining agreement entered into on or after September 30, 2020, in lieu of the leave provided for in NYSSL, providing a comparable benefit for employees covered by such agreement in the form of paid days off; paid days off shall be in the form of leave, compensation, other employee benefits, or some combination thereof. NYSSL should not be construed to impede, infringe, or diminish the ability of a certified collective bargaining agent to negotiate the terms and conditions of sick leave different from those of NYSSL. The collective bargaining agreement must specifically acknowledge the provisions of NYSSL.

Return from Leave. Upon return to work following NYSSL leave, an employee shall be restored to the position of employment that he or she held prior to any sick leave taken pursuant to NYSSL. The employee shall receive the same pay and other terms and conditions of employment.

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

Interaction with Local Laws. Nothing in NYSSL shall be construed to prevent a city with a population of one million or more from enacting and enforcing local laws or ordinances which meet or exceed the standard requirements for minimum hour and use of NYSSL, as determined by the commissioner. Notably, New York City and Westchester County both have their own sick leave laws. Any paid sick leave benefits provided by a sick leave program enforced by a municipal corporation in effect as of September 30, 2020 shall not be diminished or limited as a result of the enactment of NYSSL.