New York's statewide sick leave law took effect on September 30, 2020. Under this law, most New York employers are required to provide employees with job-protected paid sick leave. Beginning September 30, New York employees immediately accrue sick leave at a rate of at least one hour per every 30 hours worked. New hires begin accruing leave on their first day of employment. Although the law recently became effective, employers may wait until January 1, 2021 before allowing employees to use their accrued leave.
Minimum Required Sick Leave
The amount of sick leave employers must provide is based on the employer's number of employees and amount of net income as follows:
Number of Employees
Minimum Required Sick Leave in a Calendar Year
|4 or less||$1 million or less||up to 40 hours of unpaid leave|
|4 or less||more than $1 million||up to 40 hours of paid leave|
|5 to 99||N/A||up to 40 hours of paid leave|
|100 or more||N/A||up to 56 hours of paid leave|
Employers may frontload annual sick leave or accrue leave time based upon hours worked. Any unused sick leave at the end of the calendar year must be carried over to the next year, but employers may cap the amount of sick leave used based on the chart above (for example, employers with 100 or more employees may cap the amount of paid sick leave used at 56 hours in a calendar year). Additionally, employers are not required to pay out unused leave upon an employee's separation from employment and may set a reasonable minimum increment for the use of sick leave that cannot exceed 4 hours. Although the law does not specify whether employers must notify employees that accrued sick leave will be forfeited upon separation, New York's paid time off rules require such notification in writing. Accordingly, it is recommended that employers implement a written forfeiture policy if they wish to avoid paying employees for their unused accrued paid sick time upon the end of employment.
Sick leave may be used for certain medical reasons (the employee's or employee's family member's illness, diagnosis, care, or treatment) and safety reasons (needs related to the employee or the employee's family member being a victim of domestic violence, a family offense, stalking, human trafficking, or sex-related crimes).
To prohibit unauthorized use of sick leave, employers may require a written verification from an employee that leave is being used for the medical or safety purposes covered by the law.
However, employers may not request the disclosure of confidential information, such as the illness or medical condition of an employee or an employee's family member.
The law requires that employers keep contemporaneous records of the amounts of sick leave accrued and used by each employee. If an employee requests this information, the employer must provide it to the employee within three business days of the request.
Paid Time Off Policies
Employers providing paid time off (PTO) to employees are not required to maintain a separate sick leave policy as long as the PTO they provide accrues at the required minimum rate outlined above. For example, an employer with 100 or more employees may offer a PTO policy that provides employees 4 hours of PTO for every 120 hours worked and may cap the PTO at 56 hours. In this example, the employer's PTO policy would satisfy the legal requirements of the New York sick leave law without requiring a separate sick leave policy. However, employers that rely on their PTO policy to satisfy the sick leave requirement must ensure that employees are not denied the opportunity to use sick leave for eligible purposes, even if the employer might want to deny the request to use PTO for business reasons.
Next Steps Employers Should Take
- Employers should review their current PTO and/or sick leave policies to ensure that they provide the minimum required amount of sick leave outlined in the chart above. (Employers should also ensure that their policies meet specific local laws, such as the New York City Earned Safe and Sick Time Act.)
- If an employer has no policies or its policies are not compliant, the employer should create a policy or revise its existing policies to provide the required amount of sick leave.
- Employers should review and revise their policies to ensure that they do not request confidential information as a condition to providing sick leave.
- Employers should ensure that they have a system in place to accrue each employee's sick leave, either by frontloading the leave or accruing the leave by hours worked. Once the system is in place, employers must be prepared to provide an employee with documentation of the employee's accrued and used sick leave upon request.
- If an employer does not want to pay out unused accrued sick time at the end of employment, the employer should publish a written policy (in its employee handbook or elsewhere) stating that unused accrued sick time is forfeited at the end of employment.
If you have any questions regarding this client alert, or if you would like assistance with any of the requirements described here, please contact a member of Venable's Labor and Employment Practice Group.