Recently enacted New York law (2020 Ch. 56, Part J) requires employers to provide up to 56 hours of paid sick leave per year to employees. The mandate applies to employers of all sizes — but requires fewer hours of paid leave at smaller employers — and goes into effect on Sept. 30. New York is just the latest state to require employer-paid time off. In 2019, Maine and Nevada enacted laws requiring employers to provide paid leave that employees may use for any reason. Although Maine’s law will not take effect until 2021, Nevada’s law took effect on Jan. 1 of this year. Nevada joins 11 other states — Arizona, California, Connecticut, Maryland, Massachusetts, Michigan, New Jersey, Oregon, Rhode Island, Vermont and Washington — and the District of Columbia with paid sick leave mandates in effect.
Paid sick leave mandate
New York’s fiscal 2021 state budget includes a comprehensive paid sick leave (PSL) law originally advanced by the governor in his 2020 State of the State address. Signed April 3, the PSL law creates a new Section 196-b of the New York Labor Law code.
Employers with one or more employees are required to provide at least one hour of accrued paid sick leave for every 30 hours worked. Accrual begins on the first day of employment for new hires and upon the law’s effective date (Sept. 30) for current employees.
The PSL mandate adds to the state’s existing paid leave benefits available to New York employees, including temporary disability and paid family and medical leave programs, and is separate from New York’s emergency paid sick leave for COVID-19.
Accrual and usage limits vary with employer size
Accrual requirements and usage limits depend on an employer’s number of employees in a calendar year from Jan. 1 through Dec. 31:
- Employers with 100 or more employees can cap paid leave accruals and usage at 56 hours per year.
- Employers with five to 99 employees can cap paid leave accruals and usage at 40 hours per year. Employers with fewer than five employees and net income greater than $1 million are subject to the same limitations.
- Small employers with fewer than five employees and net income not exceeding $1 million must provide up to 40 hours of unpaid sick leave per year and can limit usage to 40 hours per year.
The legislation doesn’t specifically limit the number of employees counted to those working in New York. Clarification from the state Labor Department that employers should include all employees in the count, regardless of where they work, would be welcome.
Accrual and usage caps apply on a Jan. 1–Dec. 31 calendar-year basis or another regular and consecutive 12-month period determined by the employer. Employees can carry over unused, accrued paid sick leave from year to year. Employers can elect to front-load the paid leave at the beginning of the calendar year, but whether this would negate the carryover requirement is unclear. Employers do not have to pay out unused accrued time upon an employee’s separation.
Permissible uses of accrued paid sick leave
Beginning Jan. 1, 2021, employers must allow use of paid sick leave in four-hour (or shorter) increments upon an employee’s oral or written request if the employee or a family member:
- Has a mental or physical illness, injury, or health condition, regardless of any diagnosis or need for medical care at the time of the leave request
- Receives diagnosis, care or treatment of a mental or physical illness, injury, or health condition, or needs to seek a medical diagnosis or preventive care
- Needs to access services or assistance after experiencing domestic violence, sexual offense, stalking or human trafficking or to ensure the health and safety of the employee, family member, or the employee’s associates and colleagues after such an incident
Family member definition. For paid sick leave purposes, a family member includes an employee’s child, spouse, domestic partner, parent, sibling, grandchild, grandparent, and the child or parent of an employee’s spouse or domestic partner. A parent includes an employee’s biological, foster, step-, or adoptive parent or legal guardian; or a person who stood in loco parentis when the employee was a minor child. A child includes a biological, adopted or foster child; a legal ward; or a child for whom an employee stands in loco parentis.
A number of other provisions in the new PSL law are worthy of note. Like many states’ PSL mandates, the New York law provides job protection to employees and prohibits employers from retaliating or discriminating against employees for exercising their PSL rights. The law also sets out related employer confidentiality, recordkeeping and notice requirements in response to employees’ inquiries.
Existing employer policies. Employers with existing PSL or paid time-off policies do not have to provide additional sick leave, as long as the current policy has at least as generous leave, accrual, carryover and use requirements.
Collective bargaining agreements. Collective bargaining agreements entered into after the law’s passage can explicitly waive the statutory paid sick leave in favor of negotiating different — but no less generous — terms, conditions and amounts of paid leave than the PSL law provides.
Preemption of local laws not absolute. Notably, the law does not preempt local ordinances already in effect and does not prohibit cities with a population of 1 million or more from enacting more generous paid leave requirements. Accordingly, the state law does not preempt New York City’s Earned Safe and Sick Time Act or Westchester County’s Earned Sick Leave and Paid Safe Time ordinances.
The law grants the state Labor Department’s commissioner the authority to adopt regulations and issue guidance to implement the PSL mandate, including standards for accrual, use, payment and employee eligibility. The department also must post PSL information on its website and otherwise inform employers and employees about the new law and its provisions. In the meantime, employers should review existing leave policies and consider revisions to comply and coordinate with the law’s requirements.
- 2020 Ch. 56, Part J (New York Senate, April 3, 2020)
- State of the State proposals — Establishing paid sick leave (Gov. Andrew Cuomo, Jan. 8, 2020)