On April 3, 2020, Governor Andrew Cuomo signed the Enacted Budget for fiscal year 2021, which included a statewide sick leave law. Employees start accruing sick leave under the law on September 30, 2020. Employers must provide the accrued leave for the covered uses set forth under the law starting on January 1, 2021. 
**For employers in New York City or Westchester County: While we are still awaiting guidance from New York on the interplay between those current local laws and New York’s law, it is clear that certain employers in those jurisdictions will need to increase their sick pay allotment in order to meet the new State law’s minimum requirements (see below). In addition, there are some differences between the laws that should be reflected in written policies, requiring modification of existing policies.  
Here are the key points that employers should know about the State’s new law:

Amount of Sick Leave
  • Employers with 4 or less employees in any calendar year must provide up to 40 hours of unpaid sick leave to employees in each calendar year. However, if these employers have a net income of more than $1 million in the previous tax year, the 40 hours of leave must be paid.
  • Employers with 5-99 employees in any calendar year must provide employees up to 40 hours of paid sick leave each calendar year. 
  • Employers with 100+ employees in any calendar year must provide employees up to 56 hours of paid sick leave each calendar year. Note that this is more than New York City employers have had to provide through the New York City’s Paid Safe and Sick Leave law, which has been in effect since 2014.
Leave Accrual

Employees must accrue sick time at a rate of 1 hour per 30 hours worked starting on the later of September 30, 2020 or the employee’s first day of work. Alternatively, employers can “front-load” the full yearly minimum amount of sick time to employees at the start of the calendar year or on the employee’s first day of work. 
Covered Uses

Employees must be permitted to use their accrued sick time 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 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, the employee or the employee’s “family member”; or
  3. for an absence from work due to a variety of reasons when the employee or the employee’s “family member” has been the victim of domestic violence, a family offense, a sexual offense, stalking or human trafficking including: (a) to obtain services from a domestic violence shelter, rape crisis center, or other services program; (b) 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; (c) 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; (d) to file a complaint or domestic incident report with law enforcement; (e) to meet with a district attorney's office; (f) to enroll children in a new school; or (g) 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.
As used in the law, “family member” is broadly defined to include an employee's child (including biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis), spouse, domestic partner, parent (biological, foster, step- or adoptive, legal guardian or person who stood in loco parentis when the employee was a minor), sibling, grandchild or grandparent; and the child or parent of an employee's spouse or domestic partner.
Under the law, employers can set a reasonable minimum increment for sick time use, which cannot exceed four hours.
Compensation for Use of Sick Time

Employees eligible for paid sick time must be paid at their regular rate of pay (or the applicable minimum wage if greater). 
Carryover and Payout Upon Separation

Although unused accrued sick time must be carried over into the following calendar year, employers with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year, and employers with 100 or more employees can limit the use of sick leave to 56 hours per calendar year.
The law does not require employers to pay an employee for unused sick time upon the employee’s separation from employment, regardless of the reason.
Return to Work

After using sick leave, the employee must be restored to the employee’s prior position with the same pay and other terms and conditions of employment.
Employers must maintain records showing the amount of sick leave provided to each employee for 6 years. In addition, employers must provide employees with a summary of the amounts of sick leave earned and used in both the current calendar year and any previous calendar year(s) within 3 business days of an employee’s verbal or written request.  
Open Issues

Several aspects of the law remain unclear, including whether out-of-state employees count for the purpose of coverage and the potential for individual liability under the law. Hopefully, these issues will be addressed in regulations or other guidance on the law. 
Next Steps for Employers

New York employers should review their current PTO and sick pay policies to ensure compliance with the law, even those with current NYC/Westchester-compliant policies. Please feel free to reach out to NFC for assistance in this regard.
If you have any questions relating to this eAlert, please reach out to the NFC Attorney with whom you typically work, or call us at 973.665.9100.  We are happy to assist with this or any other employment law issue. 

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