Just weeks after New York state implemented an Emergency COVID-19 Paid Sick Leave Law, late last week, New York state passed a statewide paid sick leave (State PSL) law as part of its fiscal year 2020-2021 budget. The new law, which adds Section 196-b to the New York Labor Law, requires all New York state employers to provide a minimum of 40 hours of paid or unpaid job-protected sick leave or 56 paid hours, depending on the size and/or net income of the employer. Although the accrual provisions of the law go into effect 180 days after enactment (on or about Sept. 30, 2020), employers can require employees to wait until Jan. 1, 2021, to begin using their sick leave benefits. The details of the State PSL law are below.

Amount of Required State PSL

At a minimum, employers must provide the following amounts of sick leave:

• Employers with four or fewer employees in any calendar year and a net income of $1 million or less in the previous tax year are required to provide each employee with at least 40 hours of unpaid sick leave each calendar year.
• Employers with four or fewer employees in any calendar year and a net income of more than $1 million in the previous tax year are required to provide each employee with at least 40 hours of paid sick leave each calendar year.
• Employers with between five and 99 employees in any calendar year are required to provide each employee with at least 40 hours of paid sick leave each calendar year.
• Employers with 100 or more employees in any calendar year are required to provide each employee with at least 56 hours of paid sick leave each calendar year.

Employers may provide additional amounts of sick leave beyond what is required.

Permissible Uses of State PSL

Employees may use the State PSL: for (1) a mental or physical illness, injury, or health condition of an employee or the employee’s family member, irrespective of whether such illness, injury or health condition has been diagnosed or requires medical care at the time the employee requests leave; (2) the diagnosis, care or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member, or a ward for whom the employee is the guardian; or (3) an employee or an employee’s family member who is a victim of domestic violence, a sexual offense, stalking or human trafficking, to avail themselves of services or assistance.

The definition of “family member” is more limited than it is under the New York City Earned Safe and Sick Time Act and includes an employee’s child, spouse, domestic partner, parent, sibling, grandchild, grandparent, or child or parent of an employee’s spouse or domestic partner. “Parent” is defined as 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’ is defined as a biological, adopted or foster child; a legal ward; or a child of an employee standing in loco parentis.

Accrual

At a minimum, employees must accrue sick leave at a rate of not less than one hour per every 30 hours worked, beginning at the commencement of their employment or the effective date of the law (Sept. 30, 2020), whichever is later.

Employees may, however, accrue sick leave at a greater rate than what is required or have their State PSL front-loaded at the start of the year.

Usage of State PSL

Employers must pay employees for the use of State PSL at their regular rate of pay or the applicable minimum wage, whichever is greater. Employers may require employees to use the State PSL in a minimum increment of at least four hours. Employees may carry accrued, unused sick leave to the next calendar year, in which case the employer can limit the use of sick leave per calendar year to either 40 hours (for employers with fewer than 100 employees) or 56 hours (for employers with 100 or more employees). The State PSL law does not discuss carryover requirements in the case when an employer chooses to front-load the PSL.

Upon separation of employment, employers are not required to pay an employee for unused sick leave, regardless of the reason for the separation.

Employers With Existing PTO/Sick Leave Policies, Interplay With Local Laws, and Collective Bargaining Agreements

Employers are not required to provide additional sick leave under the new law if they have an existing paid leave or paid time off (PTO) policy and they make available to employees an amount of leave that may be used for the same purposes and under the same conditions as specified by the State PSL law, and the policy satisfies the accrual, carryover and use requirements of the new law.

Several localities, such as New York City and Westchester County, have enacted their own paid sick leave laws. The State PSL law makes clear that cities with populations of 1 million or more – such as New York City – may enact or enforce local laws or ordinances that impose stricter standards or requirements relating to sick leave.

Collective bargaining agreements entered into after the effective date of the law may, instead of providing State PSL, provide a comparable benefit to covered employees by offering paid days off in the form of leave, compensation and/or other employee benefits.

Documentation and Other Requirements

Employees’ requests to use the State PSL may be made orally or in writing. However, the law does not address when an employer may request documentation in support of an employee’s use of State PSL or what type of documentation would justify such leave.

The law does state, however, that employers may not condition an employee’s use of paid sick leave on the disclosure of confidential information about an employee or an employee’s family member relating to an employee or family member’s mental or physical illness, injury, or health condition, or relating to absence from work due to domestic violence, a sexual offense, stalking or human trafficking.

The employer’s payroll records, which are required to be kept for six years under the New York Labor Law, must also include the amount of sick leave provided to each employee.

Finally, the State PSL law contains an anti-retaliation provision and provides job protection to employees who have requested or taken State PSL.

Conclusion

The commissioner of the New York State Department of Labor is expected to adopt regulations and issue guidance regarding standards for employee eligibility for as well as the accrual, use and payment of State PSL under the new law. We will provide an update when that occurs.