On April 3, 2020, New York Governor Andrew Cuomo signed into law the fiscal year 2021 New York State budget, which includes a new statewide paid sick leave requirement. The new law requires New York employers of all sizes to provide a certain amount of paid or unpaid sick leave to all employees regardless of full-time status, effective January 1, 2021. Sick leave under the law is job protected and begins to accrue on September 30, 2020, three months before it can be used by the employee. You may need to review and expand your sick leave or PTO policy to comply with the new law.
Amount of Sick Leave Required:
- Employers with 4 or fewer employees and a net income of less than $1 million in the prior tax year must provide employees with up to 40 hours of unpaid sick leave
- Employers with between 5 and 99 employees and employers with 4 or fewer employees and a net income of greater than $1 million in the prior tax year must provide each employee with up to 40 hours of paid sick leave per year
- Employers with 100 or more employees will provide up to 56 hours of paid sick leave per year
Employees must accrue sick leave at a rate of at least 1 hour for every 30 hours worked. Alternatively, employers may fulfill their obligation under the law by providing the full amount of sick leave in a lump sum at the beginning of each year. Unused sick leave carries over to the following year. Employers with fewer than 100 employees may limit the use of sick leave to 40 hours per year and employers with 100 or more employees may limit the use of sick leave to 56 hours per year.
Covered Reasons for Taking Leave:
- The need for diagnosis, care, or treatment of a mental or physical illness or preventative care of the employee or the employee’s family member; and
- certain needs related to the employee or the employee’s family member being the victim of domestic violence, sexual offenses, stalking, or human trafficking, including obtaining services from a domestic violence shelter, rape crisis center, or other services program; participating in safety planning; temporarily or permanently relocating; meeting with an attorney or participating in legal proceedings; enrolling children in a new school; or taking other actions to increase the safety of the employee or employee’s family members.
For purposes of this leave, a “family member” includes an employee’s child (including foster child, legal ward, or equivalent legal relationship), spouse, domestic partner, parent (including a step- or foster parent, legal guardian, or equivalent legal relationship), sibling, grandchild, grandparent, and the child or parent of an employee’s spouse or domestic partner.
Interplay with Existing Leave Policies and Collective Bargaining Agreements:
Employers need not provide additional leave if they already maintain a sick leave or other paid leave policy that provides employees with the same or greater amount of leave as required under the law and which otherwise satisfies the law’s accrual, carryover, and usage requirements.
For unionized employees, in lieu of providing sick leave as expressly provided for under the law, collective bargaining agreements entered into on or after the effective date of the law (i.e., September 30, 2020) may provide for a comparable benefit in the form of leave, compensation, other employee benefits (or some combination thereof), so long as the agreement “specifically acknowledge[s]” the provisions of the law.
Recordkeeping and Other Requirements:
Employers will be required to keep records showing the amount of sick leave provided to each employee under the law. Such records must be maintained for a minimum of six (6) years.
Upon the oral or written request of an employee, an employer will be required to provide a summary of the amounts of sick leave accrued and used by the employee in the current calendar year and/or any previous calendar year. Such information must be provided to the employee within three business days of such request.
- Does an employee accrue time when they are on vacation leave?
- No. Accrual is based on hours worked and vacation is paid time off.
- Is it necessary to post the available paid sick time as soon as it is earned or can it be posted once a month?
- Some employers may choose to include an accrual on the wage statements they distribute, but this is not required. You would generally be able to provide an accrual statement once a month but would need to be prepared to provide one within three business days if an employee were to request it.
- Does the new law apply to Per Diem employees?
- Yes, the law applies to all employees including part-time, per Diem and temporary employees.
- Can we offer a lump sum amount of time for Full-Time employees and then require our Part-Time employees to accrue their time?
- Yes. You can create separate classes of employees as long as the same rules apply to similarly situated employees and there is no discrimination within one class.
- Are we required to pay an employee out on unused sick time upon their termination?
- No. Unused sick leave does not have to be paid out at termination.
- What if I don’t have an accrual system set up by September 30th?
- As long as on January 1, 2021 the employee has available the bucket of time they would have earned from September 30, 2020 through December 31, 2020 that is all that matters.
- Do I need to have a new policy in place and communication out to the employees by September 30th?
- No, we are awaiting further information from the state regarding the policy, employee communications and request forms. Templates should be provided within the next couple of months and when they are we will be sure to share them. Because the employees cannot use the leave until January 1st there is no rush to communicate this new leave to the employees at this time, but it is recommended that you begin reviewing your PTO or current Sick Leave policies so that you’re prepared for any changes that must be made prior to January 1st.
If you would like assistance reviewing your current PTO or Sick Leave policy to ensure that it is compliant with the new law, Bene-Care offers an HR solution where we can review the policy on your behalf – please reach out to us if you are interested in learning more.