On June 26, 2013, the New York City Council overwhelmingly voted to pass the New York City Earned Sick Time Act (the "Act"), thereby overriding Mayor Bloomberg's earlier veto of the Act based on his view that it would damage businesses. When implementation of this new local law begins in April 2014, the Act will require most private employers in New York City to provide paid and/or unpaid sick time to most of their employees. Employers that already provide sick leave also must ensure that their policies are consistent with the Act's requirements.
The Act extends to all employees a "right to sick time." The Act will require covered employers with 15 or more employees (whether full- or part-time or temporary) and employers of one or more domestic workers to provide one hour of paid sick time for every 30 hours worked, up to a maximum of 40 hours during the calendar year. All covered employers not required to provide paid sick time will be required to provide the same amount of unpaid sick time.
Employees may use accrued sick time for absences caused by (1) their own health conditions or the need for medical care (including preventive care) for their health conditions, (2) the need to care for a family member's health condition, (3) the closure of the employee's place of business by order of a public official due to a public health emergency, or (4) the need to care for a child whose school is closed by order of a public official due to a public health emergency. "Family members" include an employee's children, spouse, parents, step-parents and/or guardian, as well as an employee's domestic partner and parents- or step-parents-in-law. Employers may require employees to provide advance notice of up to seven days when the need for sick time is foreseeable. When the need is not foreseeable, an employee must provide notice "as soon as practicable." For absences of more than three consecutive workdays, employers may demand written confirmation of the use of sick time, including documentation signed by a health care provider, but the health care provider shall not be required to disclose the nature of the health condition except as required by law.
The Act has a complicated system for determining its effective date. Assuming the New York City economy is at a sufficient level on December 16, 2013, the effective date of the Act will be April 1, 2014. Small employers with 15 to 19 employees will be required to provide unpaid leave as of that date but will not be required to provide paid sick time until October 1, 2015. The effective date of the Act for employees currently covered by a collective bargaining agreement ("CBA") will be the CBA's date of termination.
Sick time will begin to accrue upon the later of the effective date of the Act or the commencement of employment. However, employees may not begin to use sick time until the later of 120 days from the Act's effective date or the 120th day after commencing employment. At the end of the employer's calendar year, the employer may pay out all accrued but unused sick leave or may permit employees to carry over sick leave from year to year. However, employers only need to permit 40 hours in each year, so an employee need not be permitted to accrue additional sick time if, for example, 40 hours are carried over from a prior year. Although the Act provides for an accrued benefit, an employer will not be required to pay out accrued but unused sick time upon an employee's termination of employment.
The Act excepts from coverage public employers (federal, state, or city) and employers engaged in business in the manufacturing sector. The Act also does not apply to employees covered by a valid CBA if the CBA both expressly waives the Act's provisions and provides comparable benefits for the employees in the form of paid days off.
The Act will require employers to provide written notice to newly hired employees of their right to sick leave, including the accrual and use of sick time, the employer's calendar year, the right to be free from retaliation, and the right to file a complaint with the New York City Department of Consumer Affairs (DCA), which is charged with creating downloadable notices containing the information required under the Act. Where an employee's primary language is other than English and DCA has created a model notice form in that other language, the employer must provide the employee with a notice in both English and the employee's primary language. An employer's failure to provide the notice can result in a fine of up to $50 for each employee who does not receive it.
Individuals may not sue for violations of the Act. Rather, all complaints will be handled by DCA, with remedies varying depending upon the type of violation. For example, DCA may award the greater of $250 or three times the wages that should have been paid to an employee who was not paid for sick time taken. For each instance where an employee is wrongfully denied sick time, the employee may recover $500. Where an employee is discharged in violation of the Act, DCA may award $2,500, plus lost wages and benefits and equitable relief, including reinstatement. Employers may also incur civil penalties payable to DCA.
Of course, many employers already provide paid sick leave to their employees. In recognition of this, the Act does not require employers to provide additional sick time if they already provide comparable or better paid leave. However, employers are advised to review their current leave policies to ensure compliance with the Act. Particular attention should be paid to the accrual requirements of the Act as well as the paid leave requirement for most part-time employees. Records should also be maintained, including signed employee acknowledgments of receipt, so the employer will be able to demonstrate appropriate notice was given to the employees. Under the Act employers must maintain for two years records documenting compliance.