Most NY Employers Must Provide Paid Sick Leave in 2021

April 16, 2020

By: Kimberly Klein

In addition to the paid leave laws recently passed in connection with the Coronavirus, New York State is requiring all employers to provide sick leave to their workforce starting January 1, 2021.  For most employers, the sick leave will be paid leave. The law is part of the state’s fiscal year 2021 budget, which Governor Andrew Cuomo signed into law on April 3, 2020. 

Amount of Leave

  • Employers with four or fewer employees must provide employees with 40 hours or 5 days of unpaid leave in each year;
  • Employers with four or fewer employees with a net income of more than $1 million dollars in the previous tax year and employers with between five and 99 employees must provide their workforce with 40 hours of paid sick leave in each year;
  • Employers with 100 or more employees must provide their workforce with 56 hours or 7 days of paid sick leave in each year.

The year can be a calendar year or any consecutive 12-month period determined by the employer. 

Accrual / Carryover of Leave

For every 30 hours worked, employees accrue one hour of sick leave.  Employees begin accruing leave upon commencement of employment or when the law goes into effect on September 30, 2020, whichever is later. 

Employers may make the leave available upfront.  Employees may carryover unused sick leave from the previous year, but employers do not have to provide more than 40 or 56 hours of sick leave, as applicable, in any given year.  Unused accrued sick leave is not paid out upon termination. 

If the State’s sick leave law conflicts with existing local law, the law which provides the greater benefits governs.  Under New York City’s Earned Safe and Sick Time Act (ESSTA), employers with four or fewer employees must provide up to 40 hours of unpaid leave and employers with more than four employees must provide up to 40 hours of paid leave.  Leave accrues at the same accrual rate as the State’s sick leave law.

Use of Sick Leave
Employees may use sick leave for the following reasons:

  1. The employee’s or employee’s family member’s mental or physical illness, injury or health condition, whether or not diagnosed, including for diagnosis of or preventive care;
  2. An absence from work when the employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking or human trafficking and needs leave to:

i. obtain services from a domestic violence shelter, rape crisis center, or other services program;

ii. participate in safety planning, temporarily or permanently relocate, or take other action to increase safety;

iii. meet with an attorney or other social services provider in connection with a criminal or civil proceeding;

iv. file a complaint or domestic incident report with law enforcement

v. meet with a district attorney’s office;

vi. enroll children in a new school; or

vii. take other necessary action for health or safety reasons.

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.  “Parent” means 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” means a biological, adopted or foster chide, a legal ward, or a child of an employee standing in loco parentis.

Employers may allow employees to use sick leave incrementally, as long as the minimum increment DOES NOT EXCEED four hours.

Similarly, under the ESSTA, covered employees have the right to use safe and sick leave for the care and treatment of themselves or a family member and to seek legal and social services assistance or take other safety measures if the employee or a family member may be the victim of any act or threat of domestic violence or unwanted sexual contact, stalking, or human trafficking.

Job Protection

Employees must be restored to the same position that they held prior to the sick leave, with the same pay and other terms and conditions of employment.  Employers cannot retaliate for taking leave.  Employers must keep all information concerning the sick leave confidential. 

Employers must retain records for six years showing the amount of sick leave provided to each employee.

The NYS Department of Labor will be adopting regulations.  

For questions about the new leave law or amendments to your handbook, please contact me at (212) 554-7853 or kklein@mosessinger.com.