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April 14, 2020
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New NYS Sick Leave Law
On April 3, 2020, Governor Cuomo signed a law that will provide job-protected sick leave to all employees in New York State. Employees may use this new sick leave, starting January 1, 2021, for reasons that are not limited to Covid-19 (the coronavirus).
Here is a summary of the new sick leave law.
Amount of Sick Leave
  • Employers with fewer than five (5) employees in any calendar year and an annual net income of $1 million or less must provide each employee with up to forty (40) hours of unpaid sick leave in each calendar year;
  • Employers with fewer than five (5) employees in any calendar year and an annual net income of more than $1 million must provide each employee with up to forty (40) hours of paid sick leave in each calendar year;
  • Employers with between five (5) and ninety-nine (99) employees in any calendar year must provide each employee with up to forty (40) hours of paid sick leave in each calendar year; and
  • Employers with one hundred (100) or more employees in any calendar year must provide each employee with up to fifty-six (56) hours of paid sick leave in each calendar year.
For the purpose of determining the number of employees, the law defines a calendar year as the 12-month period from January 1 through December 31.  However, for all other purposes, the employer may designate any regular and consecutive 12-month period as a calendar year.

Accrual of Sick Leave

Employees will accrue sick leave at the rate of not less than one (1) hour per thirty (30) hours worked, starting on their first day of employment or on the effective date of this law (September 30, 2020), whichever is later.

Alternatively, employers may provide employees with their total amount of sick leave at the start of the calendar year. Employers who front load sick leave may not reduce the amount of an employee's sick leave based on actual hours worked by the employee during the calendar year.

Permissible Uses of Sick Leave

Starting January 1, 2021, employees may, upon oral or written request, use their accrued sick leave for the following reasons:
  1. for a mental or physical illness, injury, or health condition of such employee or such employee's family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that such employee requests such leave;
  2.  for the diagnosis, care, or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventive care for, such employee or such employee's family member; or
  3. for an absence from work due to any of the following reasons when the employee or employee's family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking:
    • to obtain services from a domestic violence shelter, rape crisis center, or other services program;
    • to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee's family members;
    • to meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding;
    • to file a complaint or domestic incident report with law enforcement;
    • to meet with a district attorney's office;
    • to enroll children in a new school; or
    • to take any other actions necessary to ensure the health or safety of the employee or the employee's family member or to protect those who associate or work with the employee.

The law defines its terms as follows:
  • "family member" is 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" is an employee's biological, foster, step- or adoptive parent, or a legal guardian, or a person who stood in loco parentis when the employee was a minor child; and
  • "child" is an employee's biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.

Confidential Information Protected

Employers may not require employees to disclose confidential information relating to their reason for requesting sick leave, as a condition of providing sick leave.

Minimum Increments

Employers may set a reasonable minimum increment of sick leave, not to exceed four (4) hours, that employees must use in any day they take sick leave.

Compensation for Sick Leave

Employees who are eligible for paid sick leave are entitled to receive their regular rate of pay or the applicable minimum wage, whichever is greater, when using paid sick leave.

Employers are not required to pay out any accrued and unused sick leave when the employee is terminated, resigns, retires or otherwise separates from employment.

Carry Over Permitted

Employees may carry over accrued and unused sick leave from one calendar year to the next. However, employers are not required to allow employees to use more than the maximum amount of sick leave (40 or 56 hours, depending on the size of the employer) in any one calendar year.

No Discrimination or Retaliation

Employers may not discriminate or retaliate against employees for exercising their rights under this sick leave law.

Other Leave Policies

Employers who have sick leave or time off policies that meet or exceed the requirements of this law are not required to provide any additional sick leave.

Employers with unionized employees may enter into collective bargaining agreements that provide comparable benefits in lieu of the leave provided by this law and may negotiate terms and conditions of sick leave different from the provisions of this law, provided that the agreement specifically acknowledges the sick leave law.

Job Protection

Sick leave under this law is job-protected. Employees who return from sick leave must be restored to the same position of employment they held before taking sick leave, with the same pay and other terms and conditions of employment.

Record Keeping

Employers must, for six (6) years, keep payroll records that include records of employees' accrued and used sick days. Within three (3) business days of an employee's request, an employer must provide information regarding the employee's accrued and used sick leave in the current year and/or any previous year.

Interaction with Local Laws

This new law expressly provides that it does not diminish or limit any paid sick leave benefits provided under any city or county law. As such, employers in New York City and Westchester County may be required to compare the new state law to their local laws (the NYC Earned Safe and Sick Time Act, the Westchester Earned Sick Leave Law and the Westchester Safe Time Leave Law) to determine the applicable leave and benefits.

Effective Date

The effective date of this new sick leave law is September 30, 2020, which is 180 days from the date the law was signed. The NYS Department of Labor is expected to issue rules and regulations prior to the effective date.


For any questions or concerns related to the new NYS sick leave law, please contact a member of our team: Chaim Book at [email protected] , Sheryl Galler at [email protected] or Jennifer Kim at [email protected] .


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