New York State Paid Leave Law Takes Effect September 30

After approving emergency leave because of the coronavirus crisis, New York state lawmakers also have approved a requirement that many of New York’s employers must provide job-protected, paid sick leave to workers at the beginning of 2021. Employees can begin accumulating leave starting September 30, 2020.

The requirement was signed into law by Gov. Andrew Cuomo on April 3 as part of the state’s budget and it amends the state’s labor law.

In general, employers must provide 1 hour of paid leave for every 30 hours worked.

Who must comply?

Some employers must offer unpaid leave. Some employers must offer paid leave. The amount of leave that an employer must offer varies in any calendar year based on employer size and income. If an employer has:

• 0-4 employees, it must provide 40 hours unpaid sick leave each year
• 0-4 employees and net income greater than $1 million in the prior tax year, it must provide 40 hours paid sick leave each year
• 5-99 employees, it must provide 40 hours paid sick leave each year
• 100 or more employees, it must provide 56 hours of paid sick leave each year

Workers accrue leave at a rate of 1 hour for every 30 hours worked. This is the same accrual rate used for New York City’s Earned Safe and Sick Time Act.

An employer that already provides a sick leave or paid time off policy that meets or exceeds the leave provided by this law need not provide additional leave as a result of the law. However, the employer’s policy must also satisfy the accrual, carryover, and use requirements of the new state law.

Employers can choose to provide employees with the entire amount of leave at the beginning of the year. But, if an employer chooses to “frontload” the leave, then the employer can not later reduce the amount of leave if the employee does not work enough hours to accrue the amount provided.

Workers must receive payment at their regular rate of pay. Employees who start roles after Sept. 30 will begin accruing paid sick leave at the start of their employment. In addition, unused sick leave will carry over.

An employer that already provides a sick leave or paid time off policy that meets or exceeds the leave provided by this law need not provide additional leave.

Employers can cap usage

Employers can require that employees take leave in 4-hour block minimums. Some states allow employees to take leave in as little as 1-hour blocks of time.

Employers with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year. Companies with 100 or more employees may limit the use of sick leave to 56 hours per calendar year.

Reason for leave

An employee may use sick leave for either sick or “safe time” reasons for the employee or family member, including:

• Physical injury or sickness
• Mental illness
• Diagnosis, care, or treatment
• Safe leave to deal with domestic violence, human trafficking, or sexual offenses

In keeping with many of the recent state’s paid sick leave statutes, “family members” have broad definitions. Family member includes a child, parent, spouse, grandchild, grandparent, and sibling; it can also include domestic partners and their respective family members. A parent can be biological, adoptive, foster, or a legal guardian, and those who acted as a parent when the child was a minor.

An employer may not require the disclosure of confidential information as a condition of providing leave.

An employer may not require the disclosure of confidential information as a condition of providing leave — such as information relating to a mental or physical illness, injury, or health condition of the employee or the employee’s family member.

Employers who enter into collective bargaining agreements on or after the effective date of this law must provide benefits comparable to those provided under the law. The CBA must specifically acknowledge the provisions of the law.

An employee must be able to return to their position with the same pay and terms and conditions of employment.

An employer may not retaliate, discriminate against, or otherwise penalize any employee for requesting or using sick leave.

Upon request by an employee, the employer must provide within 3 business days a summary of the amount of sick leave accrued and used by the employee. An employer must also track the amount of sick leave provided to each employee. They have to maintain this information in payroll records for 6 years.

Other leave laws for New York employers

This law specifically states that the requirement does not prevent a city or municipality with a population of 1 million or more from enforcing local laws or ordinances which meet or exceed the standards or requirements of this law.

Both New York City and Westchester County have sick leave laws.

New York City’s Earned Safe and Sick Time Act went into effect in 2014 and requires that employers with 5 or more employees provide up to 40 hours of paid sick and safe time leave. It also mandates that employers with fewer than 5 employees provide up to 40 hours of unpaid safe and sick time.

Westchester County’s sick and safe time leave laws went into effect in 2019. The sick leave local law requires covered employers to provide eligible employees up to 40 hours of paid sick leave a year, but the legislation did not include a “safe time” provision. Under the safe time requirement that was approved several months after the county’s sick leave law, employers in the affluent New York City suburb must provide eligible employees with 40 hours of paid leave that can be used for reasons related to domestic violence or human trafficking.

COVID-19 leave

On a statewide basis, some New York employers also have to comply with a separate leave requirement stemming from the global pandemic. On March 18, 2020, Gov. Andrew Cuomo signed emergency legislation guaranteeing job protection and pay for New Yorkers who have been quarantined as a result of the novel coronavirus, or COVID-19.

Employers in New York State are required to provide at least 5 days of job-protected, paid sick leave to employees who need to take leave because they are under a mandatory or precautionary order of quarantine or isolation due to COVID-19. Like the paid sick leave, the amount of COVID-19 leave that an employer is required to provide depends on the number of employees and the employer’s net annual income. Employees eligible for benefits under the federal Families First Coronavirus Response Act will be entitled to the difference between the federal benefits and the state benefits, legal experts say.