September 9, 2020
New York’s paid sick leave (“PSL”) law becomes effective on September 30, 2020. This law is distinct from, and in addition to, New York’s statewide COVID-19 Paid Sick Leave Law, which has been in effect since March 2020.
The PSL law applies to all private-sector employers, regardless of size. Under the new law, employees are entitled to accrue PSL at a rate of 1 hour of PSL for every 30 hours worked. PSL must be paid to employees at their regular rate of pay or the minimum wage, whichever is greater. The amount of leave an employer must provide is determined by the employer’s size and amount of net income in the previous tax year:
Employers with four or fewer employees and a net income of $1 million or less in the previous tax year are required to provide 40 hours of unpaid sick leave per calendar year.
Employers with four or fewer employees and net income of greater than $1 million in the previous tax year are required to provide 40 hours of PSL per calendar year.
Employers with five to 99 employees must provide 40 hours of PSL per calendar year.
Employers with 100 or more employees must provide 56 hours of PSL per calendar year.
Employees are entitled to use PSL for the following reasons:
For 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;
For the diagnosis, care, or treatment of 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; and
For certain absences from work when the employee or employee’s covered family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking.
Employees can begin accruing PSL on September 30, 2020. However, employers are not required to permit the use of PSL by employees until January 1, 2021. An employer may choose to frontload the PSL in the amount equal to the annual caps at the beginning of the calendar year, thereby providing employees with their entire PSL at the beginning of the year. An employer who chooses to do this may not later reduce the amount of leave if the employee does not work sufficient hours to accrue the amount of PSL that was frontloaded.
Employers must permit employees to carry over earned but unused PSL from year to year, but employers with fewer than 100 employees can limit PSL use to 40 hours in any given year, and employers with 100 or more employees can limit PSL use to 56 hours in any given year. Employers are not required to pay employees for accrued but unused PSL upon an employee’s separation from employment.
Employers who are already providing paid sick leave or paid time off to employees pursuant to existing policies that meet or exceed the leave provided by this law are not required to provide additional leave as a result of this law. However, employers must ensure that their policies satisfy the accrual, carryover, and use requirements of the law. Similarly, employers who are already complying with New York City and/or Westchester County paid leave laws may generally be able to have those benefits run concurrently with the statewide PSL law, with the notable difference that employers with more than 100 employees are required to provide an additional 16 hours of annual PSL per the statewide law, for a maximum of 56 hours per year, as opposed to 40 hours under the New York City and Westchester laws.
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