The enactment of paid sick leave laws began as a state and local employment law trend roughly a decade ago, gaining substantial momentum in the mid-2010’s.  Amidst this wave, New York City adopted a paid sick leave law in April 2014.  The City Council later amended the law – in May 2018 – to provide employees with “safe leave” as well.  And in 2019, Westchester County enacted its own paid sick and safe leave law.

Now, more than six years after NYC adopted the original iteration of its paid sick leave law, New York State has enacted its own statewide paid sick leave law (NYPSL), which takes effect on September 30, 2020.  Principally, NYPSL provides paid time off for certain sickness-related reasons, with the specific amount of time varying based on employer size and net income.  Below is a summary of the new law’s key provisions.

How much paid sick leave will employees receive?

Much more so than NYC’s paid safe and sick leave law, which is known as the Earned Safe and Sick Time Act (ESSTA), the NYPSL requirements are tiered based on employee headcount and net income.  Specifically, the new law provides that Empire State employees are entitled to paid sick time as follows:

  • Businesses with four or fewer employees in any year must provide up to 40 hours of paid sick leave per year, unless their net income is $1,000,000 or less in the previous tax year, in which case such leave time may be unpaid.
  • Businesses with between five and 99 employees in any year must provide up to 40 hours of paid sick leave per year.
  • Businesses with 100 or more employees in any year must provide up to 56 hours of paid sick leave per year.

In calculating employee headcount for purposes of the above tiers, a “year” means the period between January 1 and December 31 of a given year.  For all other purposes, however, a “year” means either the period between January 1 and December 31 or, in the alternative, a “regular and consecutive twelve-month period, as determined by the employer.”

What are permissible uses of NYPSL?

NYPSL may be used (1) to care for an employee or employee’s family member’s mental or physical illness, injury or mental health condition, whether it has been diagnosed, or requires medical care at the time the NYPSL is requested, or (2) for the diagnosis, care or treatment of an employee’s or employee’s family member’s mental or physical illness, injury, or health condition, or for preventative care.

The law also permits leave for several qualifying reasons when an employee or his/her family member has been a victim of domestic violence, a family offense, sexual offense, stalking or human trafficking.  These qualifying reasons mirror the “safe time” protections afforded by the ESSTA.

Employers may set a reasonable increment for the use of NYPSL, the minimum for which may not exceed four hours.

How does NYPSL accrue?

Like the ESSTA, employees will accrue NYPSL at the rate of one hour for every 30 hours worked.  Alternatively, employers may frontload the maximum amount of NYPSL at the beginning of a calendar year, so long as the employer does not reduce or revoke the amount of sick leave hours based on the number of hours that the employee actually works.

NYPSL is to be paid at the employee’s regular rate of pay or the applicable minimum wage rate, whichever is greater.

Does NYPSL have any recordkeeping requirements?

Under the new law, employees may make a request – either orally or in writing – for a summary of the amounts of sick leave accrued and used in the current year and/or any previous year.  This information must be provided within three days of any such request.

In addition, effective September 30, 2020, New York’s Wage Theft Prevention Act will be amended to require all Empire State employers to retain records documenting the amount of NYPSL provided to each employee, for a minimum of six years.

When can employees start using NYPSL?

Employees will begin accruing NYPSL on September 30, 2020 or the commencement of employment, whichever is later.  However, employees may only begin using NYPSL on January 1, 2021.  New employees hired after January 1, 2021 may use NYPSL immediately upon accrual.

Does accrued but unused NYPSL carry over from year-to-year and is it paid out upon termination?

Under NYPSL, employees may carry over accrued but unused sick leave to the following year.  Nevertheless, employers are permitted to limit the use of NYPSL in a given year to 40 hours (for employers with fewer than 100 employees) or 56 hours (for employers with more than 100 employees), regardless of the amount of accrued time off an employee has accrued in his/her NYPSL “bank.”  It is unclear from the plain language of the NYPSL whether and to what extent employees may carry over paid sick time if their employer utilizes the “frontloading” method detailed above.

On a separate but related point, the new law makes clear that, just like the ESSTA, employers are not required to pay employees for accrued but unused NYPSL upon termination of their employment (regardless of the reason).

Are employers required to restore employees to their same position upon conclusion of NYPSL?

Yes.  Under the NYPSL, an employee who avails him/herself of the law’s protections must, following such leave, be restored to the same position (s)he held prior to such leave, with the same pay and terms and conditions of employment.

What is the interplay between NYPSL, company policy, and New York City and Westchester paid sick leave?

Employers do not need to provide NYPSL if they already maintain a paid leave policy that provides employees with an amount of sick leave that equals or exceeds the requirements set forth above, and which policy satisfies the accrual, carryover, and use requirements of the new law.  This is important because it means that businesses with sick leave policies that comply with NYC’s and/or Westchester County’s existing sick leave laws (which laws the NYPSL will not preempt) may not need to make many, or perhaps any, changes to their leave policies to comply with the NYPSL.

What steps should employers take in light of this new law?

Employers should begin reviewing existing leave policies to determine whether they meet the requirements of NYPSL and should update employee handbooks as necessary.  New York employers located outside of NYC or Westchester County, in particular, will have to implement paid sick leave policies if they do not currently have any such leave available to employees, which may require a review or overhaul of other leave or PTO policies.

If you have any questions or concerns about the new law, or how it affects your company, Reed Smith’s experienced Labor & Employment Group is ready to speak with you.  For more information regarding this law, please contact your Reed Smith attorney.