Employers with employees who perform work in New York City must now be mindful of the New York City Earned Sick Time Act (the "Act"), which took effect on April 1, 2014. Importantly, even employers without offices or facilities in New York City may be subject to the law if their employees perform some work within the City's borders.
The Act requires that employers with five or more employees who work in New York City at least 80 hours during a calendar year must provide those employees with paid sick leave. (Thus, part-time employees, as well as employees who are primarily employed outside of New York City, may be covered by the Act).
Although employers with fewer than five employees need not offer paid sick leave, they must still comply with the Act by offering unpaid sick leave to their New York City employees, which accrues at the same rate applicable to larger employers as outlined below.
An employer that is a party to a valid collective bargaining agreement in effect on April 1, 2014 will not be subject to the Act with respect to the employees covered by such agreement until the agreement expires.
Manufacturing employers and employers with between five and nineteen employees have a six-month grace period (i.e., until October 1, 2014) before they can be subject to civil penalties for violating the Act. Such employers are not entirely off the hook during the six-month grace period, though: if they incur a second or subsequent violation of the Act during this grace period, that violation will serve as a predicate for imposing penalties for subsequent violations that occur on or after October 1, 2014.
The Act does not cover participants in certain work study programs, employees compensated by or through qualified scholarships, independent contractors, and certain hourly professional employees licensed by the New York State Department of Education who call in for work assignments at will and are paid at a premium rate.
Accrual of Sick Time
Employees who perform at least 80 hours of work in New York City in a calendar year are entitled to sick leave benefits under the Act. The Act defines "calendar year" as "a regular and consecutive twelve month period, as determined by an employer," and therefore, it need not be an actual calendar year as it is commonly defined (i.e., January 1 to December 31). Employees will accrue sick leave upon their first hour worked, but are not eligible to use paid sick leave until the later of (i) their 120th day of employment, or (ii) July 30, 2014. Non-exempt employees will accrue one hour of paid sick time for every 30 hours worked. Exempt employees will accrue paid sick time at the rate of one hour for every 40 hours worked, unless an exempt individual typically works fewer than 40 hours per workweek, in which case he or she will accrue one hour of paid sick time for every hour in his or her normal workweek.
The Act requires covered employers to provide at least 40 hours of paid sick time to each eligible employee in a calendar year. Although employers are permitted to provide more than 40 hours of paid sick time, or to allow employees to accrue sick time more quickly than the Act specifies, they are not required to do so.
The Act does not require employers to provide additional paid sick time if their existing paid leave policy meets the requirements of the Act and allows employees to use sick time for the purposes enumerated in the Act. However, employers seeking to maintain current paid leave policies that meet or exceed the Act's requirements in terms of the amount of sick leave granted should note that, to comply with the Act, the policy must grant employees access to their paid leave days as of the first day of the employer's new calendar year. For employers that do not maintain such a policy, if an employee has a balance of paid sick time remaining at the end of a calendar year, the employer may either (i) pay the employee for the unused time; or (ii) allow the employee to carry over a maximum of 40 hours of paid sick time into the next calendar year. Employers are not required to compensate employees for accrued, unused sick time upon termination of their employment.
Qualifying Reasons for Leave Under the Act
Employees may take sick leave under the Act when (i) they have a mental or physical illness, injury, or health condition; (ii) they need to get a medical diagnosis, care, or treatment for their mental or physical illness, injury, or condition; (iii) they need to get preventive medical care; (iv) they must care for a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition, or who needs preventive medical care; (v) their employer's business closes due to a public health emergency; or (vi) they need to care for a child whose school or child care provider closed due to a public health emergency.
The Act defines a "family member" to include an employee's child, spouse, domestic partner, parent, sibling (including any half-sibling, step-sibling, and sibling related through adoption), grandchild, grandparent, or the child or parent of an employee's spouse or domestic partner.
Employers can require up to seven (7) days' notice in advance of an employee's intention to use sick leave under the Act. If the need for leave is not foreseeable, employers may require employees to give notice as soon as practicable.
Employees may determine how much sick leave they need to use, but employers may reserve the right to set minimum increments of sick leave that must be taken in any instance. An employer may not, however, set the minimum increment below four hours.
If an employee is absent for at least three consecutive days, his or her employer may require reasonable documentation from a licensed health care provider certifying that the employee was using sick time for a permitted purpose under the Act. Note, however, that the Act prohibits employers from requiring the health care provider to specify the medical reason for sick leave.
Employer Notice and Recordkeeping Requirements
Effective April 1, 2014, employers must provide newly hired employees with written notice of their rights to sick time pursuant to the Act, including the accrual and use of sick time, the employer's definition of a "calendar year," and the employee's right to be free from retaliation and to file a complaint with the New York City Department of Consumer Affairs ("DCA"). Employers must provide the notice to existing employees by May 1, 2014. The notice must be distributed in English and, if available on the DCA website, in the employee's primary language. Copies of the notice created by the DCA are available on the DCA website in English, Spanish, Chinese, French-Creole, Italian, Korean, and Russian. Employers must also retain records of employees' accrual and use of sick time for at least three years.