New York State’s Sick Leave Law, located at N.Y. Labor Code § 196-b goes into effect on September 30, 2020, but employees are not entitled to use sick leave benefits until January 1, 2021. Are you prepared?
All employers need to have a written sick leave or paid time off policy that meets all the requirements of New York State’s Sick Leave Act and must notify their employees in writing of its leave policy.
Coverage: The law generally applies to all employers in New York State.
Eligibility: All employees are generally eligible for sick leave.
Reasons for Leave: Eligible employees may use sick leave for the following permitted purposes:
- A mental or physical illness, injury, or health condition of such employee or such employee’s family member, regardless of whether the illness, injury, or health condition has been diagnosed or requires medical care at the time that the employee requests such leave;
- 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, the employee or the employee’s family member; or
- An absence from work due to any of the following reasons when the employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking:
- To obtain services from a domestic violence shelter, rape crisis center, or other services program;
- To participate in safety planning, relocate, or other actions to increase their, or family member’s, safety;
- To meet with an attorney, or other social services provider, to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding;
- To file a complaint or domestic incident report with law enforcement;
- To meet with a district attorney’s office;
- To enroll children in a new school; or
- To take any other actions necessary to ensure their own, or a family member’s, health or safety or to protect those who associate or work with the employee.
Note: If the employee committed the domestic violence crime, then they are not entitled to leave.
For purposes of the law:
- Family member means an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent; and the child or parent of an employee’s spouse or domestic partner.
- Parent means 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.
- Child means a biological, adopted, or foster child, a legal ward, or a child of an employee standing in loco parentis.
Amount of Leave: Covered employers must provide sick leave benefits as follows:
- Employers with four or fewer employees in any calendar year must provide at least 40 hours of unpaid sick leave to each employee per calendar year. However, if these employers have a net income of greater than one million dollars (in the previous tax year) then the 40 hours of leave must be paid;
- Employers with between five to 99 employees in any calendar year must provide at least 40 hours of paid sick leave to each employee per calendar year; and
- Employers with 100 or more employees in any calendar year must provide at least 56 hours of paid sick leave to each employee per calendar year.
For determining employee count, a calendar year is the 12-month period from January 1st through December 31st. For all other purposes, a calendar year is either the twelve-month period from January 1st through December 31st, or a regular and consecutive twelve-month period, as determined by the employer.
Accrual and Use: Employees accrue sick leave at a rate of one hour per every 30 hours worked. Accrual begins at the later of the employee’s start date or September 30, 2020 and is subject to use and accrual limitations. However, employees may not use accrued sick leave until January 1, 2021.
Employers may set a reasonable minimum increment for the use of sick leave which may not exceed four hours.
Frontloading: Employers may frontload the entire amount of required sick leave at the beginning of the calendar year. However, employers may not reduce or revoke any frontloaded sick leave based on the numbers of hours actually worked by an employee during the calendar year.
Carryover and Use Caps: Unused sick leave carries over to the following calendar year, with the following use caps:
- Employers with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year; and
- Employers with 100 or more employees may limit the use of sick leave to 56 hours per calendar year.
Confidentiality: Employers may not require the disclosure of confidential information relating to a mental or physical illness, injury, or health condition of such employee or such employee’s family member, or information relating to absence from work due to domestic violence, a sexual offense, stalking, or human trafficking, as a condition of providing sick leave.
Compensation: Employees must receive compensation at their regular rate of pay, or the applicable minimum wage, whichever is greater, for their paid sick leave.
Leave Statement: Upon an employee’s verbal or written request, employers must provide a summary of the sick leave amounts they accrued and used in the current calendar year and/or any previous calendar year. Employers must provide this information to the employee within three business days of their request.
Preexisting Leave: Employers are not required to provide any additional sick leave if they have a preexisting a sick leave policy or time off policy that provides employees with an amount of leave which meets or exceeds legal requirements and also satisfies accrual, carryover, and use requirements.
Right to Reinstatement: Employees must be restored to the position they held prior to taking sick leave (with the same pay, terms, and conditions of employment) upon return from sick leave.
Upon Termination: Employers are not required to pay an employee for unused sick leave upon their termination, resignation, retirement, or other separation from employment.
Recordkeeping: Employers must maintain records showing the amount of sick leave provided to each employee, for each week worked, along with the other standard payroll records.
Haylor, Freyer & Coon's Group Benefits Division can assist with this and other Employee related concerns. Contact us today.