New NYC Law Requires Employers to Provide Earned Sick Leave
July 26, 2013
Over Mayor Bloomberg’s veto, the New York City Earned Sick Time Act has become law, requiring virtually all New York City employers to provide earned sick time off to eligible employees. New York City now joins other jurisdictions around the nation that have enacted mandatory paid sick leave laws over the last several years, including Portland, San Francisco, Seattle, Washington D.C. and the State of Connecticut.
Under the recently enacted municipal law, employers with 15 or more employees must provide a minimum of one hour of paid sick time for every 30 hours worked by an employee, up to 40 hours (or five work days) per year. For purposes of sick time accrual, an employee who is exempt from federal and state wage & hour laws is presumed to work 40 hours per week. Notably, the law further obligated employers with less than 15 employees to provide earned sick time to its employees at the same accrual rates as larger employers, although such earned sick time may be unpaid.
In order to earn sick time, an employee must work within New York City, have been employed for at least four months and have worked for more than 80 hours in a calendar year with the employer. Temporary and part-time employees are, likewise, entitled to earn sick time if they meet these minimum requirements. Employees will begin to earn sick time on the later of: (a) the employee’s date of hire; or (b) the date the law becomes effective for the employer.
The NYC Earned Sick Time Act allows an employee to use sick time due to:
- The employee’s own mental or physical illness, injury or health condition; the need for medical diagnosis, care or treatment of the employee’s own mental or physical illness, injury or health condition; or the need for preventative medical care;
- The care of a family member who needs: medical diagnosis, care or treatment for a mental or physical illness, injury or health condition; or preventative medical care; or
- The closure of a business, school or childcare provider by order of a public official due to a public health emergency.
A “family member” is defined expansively as an employee's spouse or registered domestic partner; the employee’s parent or the parent of the employee’s spouse or domestic partner (including 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); and the employee’s child or the child of the employee’s spouse or domestic partner (including a biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis).
If an employee is absent for three or more consecutive days, an employer can require the employee to submit documentation from a health care provider indicating that leave is needed and the length of such leave. However, an employer cannot require an employee to disclose the details relating to his/her illness or medical condition, or the illness or medical condition of the family member. Any health information that the employer receives about an employee or an employee’s family member obtained solely for the purposes of utilizing sick time must be treated as confidential
While the law does not require that accrued but unused sick time be paid out upon termination of employment, accrued but unused sick time must be carried over to the following calendar year unless the employer opts to pay the employee for such unused sick time at the end of the year and payment is made by the first day of the following calendar year. The law also allows an employer to limit employee use of earned sick time to 40 hours in a given year, and restrict the amount of accrued sick time carried over to the following calendar year to just 40 hours.
If an employer already has a sick leave, vacation, PTO or other paid leave policy under which time off may be taken for the purposes described in the law, additional sick time is not required so long as the accrual and use of the time off satisfy all of the minimum requirements of the law.
The law specifically prohibits an employer from requiring that an employee find a replacement to cover his/her work shift as a condition of taking sick time, or from requiring an employee who uses sick leave to work additional hours without the employee’s consent. Employers are also prohibited from terminating or retaliating against employees who request or use sick time, or who file a complaint or participate in an investigation or action regarding an alleged violation under the law.
The penalties assessed against an employer on behalf of an aggrieved employee are specific to the type of violation that has occurred. The penalty provisions of the law provide as follows:
- Where an employer fails to pay an employee for used sick time: three times the value of unpaid wages (with a $250 minimum);
- Where an employer either unlawfully denies a request for sick leave, conditions its approval of a request on an employee searching for or finding a replacement, or requires an employee to work additional hours to make up for the hours not worked while on sick leave: $500;
- Where an employer retaliates (but does not terminate an employee): full compensation including, but not limited to, wages and benefits lost, $500, and equitable relief as appropriate; and
- Where an employee unlawfully terminates an employee: up to full compensation, including lost wages and benefits, $2,500, and equitable relief (including full reinstatement for the unlawful termination of an employee).
Additionally, a non-complying employer faces civil penalties payable to the City of $500 for the first violation, $750 for subsequent violations within two years and $1,000 per violation thereafter.
The NYC Earned Sick Time Act imposes upon employers certain recordkeeping requirements, with which employers should become familiar. Employers are also required to provide each employee upon hire with a notice describing the employee’s right to sick time under the law, including the accrual and use of sick time, the calendar year used by the employer, the right to be free from retaliation, and the right to bring a complaint.
The effective date for the NYC Earned Sick Time Act is staggered based on an employer’s size: the law is slated to go into effect on April 1, 2014 for (1) employers with 20 or more employees and (2) employers with less than 15 employees. For those employers, sick time (paid or unpaid, respectively) is available for use on or after August 1, 2014. For employers with between 15 – 19 employees, the law is expected to go into effect on October 1, 2015, with paid sick time being available for use on or after February 1, 2016. The law provides that these dates may be delayed if the City experiences a financial downturn such that economic indicators do not reach certain thresholds identified by the law. Wolff & Samson will provide updates as the respective effective dates approach or if there are any delays to the law’s implementation.
For more information, please contact:
Denise J. Pipersburgh, Associate
(973) 530-2090 | firstname.lastname@example.org