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November 18, 2020

Stroock Client Alert

By: Howard S. Lavin, Elizabeth E. DiMichele, GraceAnn Caramico

Earlier this year, New York State Governor Andrew Cuomo signed into law the New York State Sick Leave Law (“NYSSLL”), which requires employers to provide sick leave for all employees.  Although NYSSLL became effective on September 30, 2020, employees are eligible to use sick leave on January 1, 2021.  Similarly, on September 28, 2020, New York City Mayor Bill de Blasio signed into law an amendment to the New York City Paid Safe and Sick Time Act (“NYCPSSTA”), which requires employers to provide safe and sick leave for all employees.  NYCPSSTA became effective on September 30, 2020.

Under NYSSLL, employers must provide the following sick leave allowances:

  • Employers with four or fewer employees and a net income of less than one million dollars in the previous tax year, must provide up to forty hours of unpaid sick leave;
  • Employers with four or fewer employees and a net income of greater than one million dollars in the previous tax year, as well as employers with eleven to ninety-nine employees, must provide up to forty hours of paid sick leave;
  • Employers with one hundred or more employees must provide up to fifty-six hours of paid sick leave.

The same amount of leave is provided under NYCPSSTA.

Employers who currently have safe and sick time policies or time off policies in place that are equal to or in excess of what is required under NYSSLL and NYCPSSTA need not provide employees with additional leave.  Nevertheless, employers should review their existing sick leave or time off policies to ensure compliance with NYSSLL and/or NYCPSSTA.

Under both NYSSLL and NYCPSSTA, employers must provide accrued leave to an employee for the mental or physical illness, injury, or health condition of such employee or such employee’s family member, as well as 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.  NYCPSSTA also requires employers to provide accrued leave to an employee when such employee’s place of business is closed by order of a public official due to a public health emergency, as well as when such employee must care for a child whose school or childcare provider has been closed by order of a public health official due to a public health emergency.  Moreover, under both NYSSLL and NYCPSSTA, employers must provide accrued leave to an employee when such employee or such employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking and is absent from work to take necessary actions 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.

Below are some of the key takeaways of NYSSLL and NYCPSSTA:

  • On September 30, 2020, employees were able to begin accruing leave time under NYSSLL and NYCPSSTA at a rate of one hour of leave for every thirty hours worked. 
  • Beginning January 1, 2021, under NYSSLL, employees may begin to use their accrued leave and after such time may use their leave as it accrues.  NYCPSSTA, which amended prior sick and safe time leave requirements, allows employees to use safe and sick leave as it accrues beginning on September 30, 2020.
  • Reasonable minimum increments set by employers for the use of leave under NYSSLL and NYCPSSTA are permitted, but minimum increments may not exceed four hours.
  • The amount of leave accrued and used, as well as the total balance of accrued leave, under NYCPSSTA during a pay period must be noted on each employee’s pay statement or other form of written documentation provided to the employee during each pay period.  Employers have until November 30, 2020 to ensure compliance without a penalty.
  • NYSSLL requires that an employer must provide a summary of the amounts of leave accrued and used by such employee in the current calendar year or any previous calendar year, upon the request of such employee, within three business days of the request.
  • An employee’s unused leave must be carried over to the following calendar year, but such carryover may be capped at forty hours for employers with fewer than one hundred employees and at fifty-six hours for employers with one hundred or more employees.
  • Employers are not required to pay employees for unused leave afforded under either NYSSLL or NYCPSSTA upon termination, resignation, retirement, or other separation from employment.
  • If an employee is absent from work for more than three consecutive days, under NYCPSSTA, an employer may require reasonable documents to ensure the use of leave time is permitted by NYCPSSTA, but an employer may not require the disclosure of confidential information under either NYCPSSTA or NYSSLL.  Now under NYCPSSTA, employers are required to pay (or reimburse employees for) the fees incurred by employees to obtain such documentation. 
  • Written notice of an employee’s right to leave under NYCPSSTA must have been provided to employees before October 30, 2020.  Newly hired employees must be provided notice at the commencement of employment.  Such notice must also be conspicuously posted at the employer’s place of business.  To date, the NYCPSSTA notice of employee rights is in English and Spanish.  
  • Both NYSSLL and NYCPSSTA contain anti-retaliation provisions, prohibiting an employer from discriminating or retaliating against any employee because such employee exercised his or her rights afforded under these laws.
  • Employers must make and retain records documenting such employer’s compliance with NYCPSSTA for a period of three years.  The retention period is six years under NYSSLL.  

Again, employers, particularly family offices and other small employers that typically do not have a human resources department, are encouraged to evaluate whether their existing sick leave or time off policies comport with NYSSLL and/or NYCPSSTA and if such policies need to be modified.

For more information, contact: 

Howard Lavin

Elizabeth DiMichele 

GraceAnn Caramico
 

This Stroock publication offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that Stroock does not undertake to update its publications after their publication date to reflect subsequent developments. This Stroock publication may contain attorney advertising. Prior results do not guarantee a similar outcome.