As of September 30, 2020, all New York State employers must provide their employees with sick leave, and for most employers, such leave must be paid. While New York City and Westchester County already have existing local laws in place guaranteeing employees sick leave-and New York City has amended its local sick leave law to align with the new state law-all Empire State employees are now expressly allotted time off for sick leave purposes pursuant to the New York State Sick Leave law.

Leave Entitlements and Permissible Use

The amount of sick leave that must be provided (and whether such leave is paid or not) varies based on employer size and income as follows:

  • Employers with 1 to 4 employees: Five days (40 hours) of unpaid sick leave per calendar year, but if the employer's net income was greater than $1 million in the previous tax year, then leave must be paid.
  • Employers with 5 to 99 employees: Five days (forty hours) of paid sick leave per calendar year.
  • Employers with 100 or more employees: Seven days (fifty-six hours) of paid sick leave per calendar year.

New York-based employees may use sick leave for absences related to: (1) a mental or physical illness, injury or health condition of an employee or the employee's family member, regardless 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 award 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 in order to avail themselves of services or assistance.

Accrual and Carryover

Employees begin accruing paid sick leave as of September 30, 2020, and can begin utilizing such leave on January 1, 2021. Sick leave accrues at a rate of one hour for every 30 hours worked, although instead of an accrual system, employers can elect to frontload all sick leave at the beginning of the year. Unused sick leave may be carried over to the next calendar year, but employers are permitted to limit the use of sick leave to the maximum allotment per year-40 hours (for employers with fewer than 100 employees) or 56 hours (for employers with 100 or more employees). Employers are not required to pay employees for accrued, but unused, sick leave upon termination of employment.

Interaction with Existing Policies and Local Laws

Employers that already offer their employees leave that may be used for sick leave purposes (including those that provided "unlimited" or "discretionary" time off) do not have to offer additional sick leave, so long as the existing leave entitlements meet or exceed the requirements of the new law.

Critically, the new state law does not preempt existing local paid sick leave laws and employers must comply with all sick leave laws applicable to them. Accordingly, New York City amended its Earned Safe and Sick Time Act (ESSTA), also effective as of September 30, 2020, primarily in order to mirror the allotments, accruals and other provisions of the state law noted above. In addition, the ESSTA now requires that employers must:

  • Eliminate the prior 120-day post-hire waiting period to use ESSTA leave (as well as the requirement that employees must work 80 hours in a year to be eligible for ESSTA leave)
  • Cover costs charged by a health care provider or other entity for providing a note or documentation supporting the leave
  • Provide notice to employees of the changes under the ESSTA by October 30, 2020 and
  • Identify the amount of ESSTA time accrued and used during a pay period and an employee's total balance of accrued ESSTA on a pay statement or other documents each pay period

Recordkeeping Requirements

Employers are required to maintain records of the amount of sick leave provided to and used by employees for a period of six years, and, upon request, employers must provide employees with a summary of how much sick leave they have accrued and used within three business days of the request.

Discrimination, Retaliation and Confidential Information

Discrimination and retaliation against employees that request or use sick leave is prohibited and employees must be restored to the same position with the same pay, terms and conditions of employment prior to the leave.

Employers also cannot require disclosure of confidential information relating to a physical or mental illness, injury or health condition, or confidential information relating to an absence due to domestic violence, sexual offence, stalking or human trafficking as a condition for providing sick leave.

Next Steps

New York employers should review (and revise accordingly) their existing sick leave practices and policies to ensure they meet the requirements of the New York State Sick Leave law, and for employers in New York City, the amendments to the ESSTA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.