The New York State Budget, which was signed by Governor Cuomo on April 3, 2020, requires that all employers in New York provide sick leave for their employees, and in many cases mandates paid sick leave for workers.
What do these new rules mean for employers? This article breaks down the requirements, how employees accrue leave, what circumstances employees may use sick leave for, and more.
Required Sick Leave
The amount and nature of the mandated leave depends on each employers’ size and/or net income.
| Size of Employer | Amount and Type of Leave |
| Employers with 4 or fewer employees and a net income of less than $1 million in the prior tax year. | 40 hours of unpaid leave per year. |
| Employers with 4 or fewer employees and a net income of more than $1 million in the prior tax year and employers with between 5 to 99 employees. | 40 hours of paid leave per year. |
| Employers with 100 or more employees. | 56 hours of paid leave per year. |
Accrual of Leave
Under the law, employees will accrue sick leave at the rate of at least 1 hour for every 30 hours worked. Employees will begin accruing sick leave on September 30, 2020; however, employees will not be permitted to begin taking the sick leave until January 1, 2021, when the rules go into effect.
For the accrual or granting of sick leave, a calendar year means either the 12-month period from January 1 to December 31 or a regular and consecutive 12-month period as determined by the employer.
Any unused sick leave may be carried over by the employees to the next calendar year, however employers with fewer than one hundred employees may limit an employee to the use of 40 hours of sick leave in a calendar year. Employers with more than 100 employees may limit employees to the use of 56 hours of sick leave in a calendar year.
Use of Sick Leave
There are a variety of accepted uses for the sick leave. Beginning on January 1, 2021, employees may use their accrued sick leave:
- For a mental or physical illness, injury or health condition of an employee or an employee’s family member, regardless of whether the condition has been diagnosed or requires medical care at the time the employee requests leave;
- For the diagnosis, care or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventative care for, an employee or an employee’s family member; and
- For an absence from work due to any of the following reasons when the employee or the 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, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members;
- 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 the health of safety of the employee or the employee’s family member or to protect those who associate or work with the employee.
For the purpose of leave, a “family member” includes 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.
A parent includes 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
A child is defined as a biological adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.
Employers are permitted to impose certain restrictions on the use of sick leave. For example, employers may set a reasonable minimum daily increment for the use of sick leave of no greater than four (4) hours. Employers are not required to pay unused leave upon an employee’s separation from employment.
Employees must restore the employees to the same position they held before taking sick leave, with the same pay and terms and conditions. Employers are also prohibited from retaliating against an employee for exercising their rights to sick leave.
Unionized Employers
The new sick leave legislation permits that in lieu of providing leave, the employer can bargain with the Union to provide a comparable benefit. Any provision in a CBA providing for a comparable benefit must specifically reference this new sick leave legislation.
Additional Considerations
Employers should begin the process of updating their payroll systems or other record keeping systems to begin tracking the accrual of sick time in September 2020. Employers must be able to provide employees, within three (3) days of their request, information concerning the amount of leave accrued and taken in the current calendar year or any previous calendar year pursuant to this legislation.
To avoid difficulties tracking the accrual of sick time, employers are permitted to front-load the sick leave at the beginning of the year, as long as they provide employees with the maximum amount of sick leave for the year. If an employer does this it cannot reduce the amount of leave later in the year based upon a reduction in hours worked.
Employers should also update their sick leave policies to reflect this new legislation. If an employer already provides leave that meets or exceeds this new legislation they do not have to provide additional leave, however the categories of permitted leave must be updated to reflect this legislation.
Note this legislation does not supersede any other local statute, rule or regulation relating to the provision of sick leave. Thus, employers in New York City and/or Westchester County must still comply with the New York City Earned Safe and Sick Time Act and/or the Westchester County Earned Sick Leave Law to the extent these statutes provide additional or different benefits.
Attorneys at Daniels, Porco and Lusardi, LLP are available to assist you with compliance with this new sick leave legislation as well as other laws, rules and regulations affecting the workplace. For additional information please contact Jonathan Bardavid at 845-225-8404 or [email protected], or David E. Daniels at 845-206-4019 or [email protected].
This article does not constitute legal advice.
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