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Avoid Pitfalls for Failure to Comply With New York State’s New Paid Sick Leave Law

Author: Sherri Jayson

Guest Editor: Jenn N. Crittondon

November 2, 2020 3:00pm

While New York City and Westchester County had already enacted paid sick leave laws, beginning January 1, 2021, nearly all New York employers will be required to provide paid sick leave to their employees pursuant to the recently enacted New York Labor Law § 196-b.  As accrual of paid leave begins three months before it can be used, employers should have commenced the calculation and accounting of these benefits as of September 30, 2020.

Accrual Method and Amount

Under the law, employees shall accrue paid sick leave at a rate of at least one (1) hour of leave for every thirty (30) hours worked based on the number of employees:

  • 1-4 employees: 40 hours of unpaid leave if the employer had net income of less than $1 million in the prior tax year.
  • 1-4 employees: 40 hours of paid leave if the employer had net income in excess of $1 million in the prior tax year.
  • 5-99 employees: 40 hours of paid leave.
  • 100+ employees: 56 hours of paid leave.

An employer may set a reasonable minimum increment of use, which may not exceed four (4) hours.

Employers may frontload all sick time at the beginning of the year.  However, an employer who frontloads must provide for the amount that would otherwise be accrued during the calendar year regardless as to whether works a sufficient number of hours to accrue the amount provided.

Unused sick time must be carried over to the following year.

Separation of employment does not require an employer to pay out for unused sick time.

What Can Sick Time Be Used For

An employer may not require employees to disclose confidential information in relation to the request for sick time.

Sick leave may be used for:

  • Mental or physical illness, injury, or health condition of an employee or the employee’s family member (whether diagnosed or undiagnosed);
  • Diagnosis, care or treatment of a mental or physical illness, injury, or health condition or preventative care for the employee or the employee’s family member; and
  • Absence when an employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking or human trafficking.

A family member is generally defined as the employee’s child, spouse, domestic partner, parent, sibling, grandchild, or grandparent, or the child or parent of an employee’s spouse or domestic partner.

Notice Requirements

Under previously enacted sections of the New York Labor Law, employers were required to notify employees about their sick leave policies in writing.

Under the new law, upon an employee’s request, an employer must provide a summary of the amounts of sick leave accrued and used in any calendar year within three (3) business days.

Employers must retain records of leave accrual and usage in its payroll records for each employee for a minimum of six (6) years.

Takeaway

Though employees are not entitled to these benefits until January 1, 2021, employers affected by the law should familiarize themselves with the requirements, implement the appropriate accrual method, and revise their sick leave or paid time off policies as necessary during 2020 so they are ready on January 1, 2021.  Time is of the essence to ensure compliance and avoid penalty.

New York City has also amended its previously enacted paid sick leave laws, which also now require now employers to document the amounts of accrued and used leave and the total balance of accrued leave on employee wage statements.  Employers have until November 30, 2020 to cure any failed or delayed implementation of the new requirements to avoid penalty.

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