Alert / Employee Benefits
New York state and New York City safe and sick leave requirements beginning Jan. 1, 2021

New York City amended the existing Earned Safe and Sick Time Act (referred to as the Paid Safe and Sick Leave Law), effective Sept. 30, 2020, to expand it and bring it in line with the requirements of the New York State Paid Sick Leave Law enacted in April 2020. Both laws provide for a minimum of 40 hours of sick and safe leave (SSL). NYC intends for its law to be as good as or better than the state law. If any future changes to the state law surpass those of the NYC law, they will be automatically adopted and incorporated by NYC.

While the provisions of these laws are similar, they are not identical. One notable difference is that the NYC Paid Safe and Sick Leave Law requires employers to provide employees with a Notice of Employee Rights and maintain a policy meeting specific requirements. NYC employers with 100 or more employees and employers of domestic workers are required to provide an updated Notice by Jan. 1, 2021.

This alert reviews the key provisions of both laws and highlights notable differences.

What amount of safe and sick leave must employers provide?

The state and city laws are the same with respect to the amount of paid and unpaid SSL, which depends on employer size and net income.

How do employers calculate the number of employees to determine safe and sick leave obligations?

New York state
For purposes of determining SSL obligations, the number of employees is determined in a calendar year measured from Jan. 1 to Dec. 31. The employer should count the highest total number of employees concurrently employed at any point during the calendar year to date.

New York City
Employers should count all employees who work in NYC for pay on a full-time, part-time, seasonal or temporary basis. It is of no consequence if the employee lives outside of NYC, so long as the employee is employed in NYC. Employers located outside NYC must provide SSL to employees who work in NYC. Employees who pass through NYC while working, such as drivers, are not considered as working in NYC.

Joint employers must each comply with the law. Every joint employer must count each employee jointly employed in determining the number of employees who work for pay. An employer with three permanent employees who contracts with a temp agency for three workers has six employees for purposes of the NYC SSL and must provide paid leave. The employee of a joint employer only has one leave balance accrual.

What if the number of employees increases or decreases during the calendar year, changing the employer’s sick leave obligation?

An increase in the number of employees which takes an employer to a different level of SSL (from unpaid to paid SSL for small employers or from 40 to 56 hours for large employers), requires the employer to make changes during the year. The accrual of additional required leave begins the date of the increased employee count. For small employers moving from unpaid leave to paid leave, this does not entitle employees to reimbursement for previously used unpaid SSL. These small employers may not credit accrued, unused unpaid leave toward any paid leave obligation. Prior accruals of used and unused SSL and used unpaid SSL in a calendar year may be credited by an employer toward any increased paid leave obligation. Employees retain all existing accruals of paid and unpaid leave notwithstanding an increase in the number of employees during a calendar year.

Reductions in the number of employees working for an employer which decrease the amount of SSL do not reduce employee leave entitlements until the following calendar year.

Lockton comment: The city regulations do not address the impact of changes to employee count so it is assumed the city will follow the state and require increases during the year when employer size increases the SSL obligation, but will not require or permit employers to reduce SSL during the year if the employee count is decreased.

Does an employer’s existing leave policy exempt an employer from compliance?

The quick answer is that it may. If an employer, including those covered by a collective bargaining agreement (see more below), has an existing leave policy (sick leave or other time off) that meets or exceeds the accrual, carryover, and use requirements of the SSL, neither law presents any further obligations on that employer. See below for more information on what provisions an NYC employer’s policy must contain.

How is safe and sick leave accrued?

Leave must be accrued at a rate not less than one hour for every 30 hours worked. When employees are paid on a non-hourly basis, accrual of sick leave is measured by the actual length of time spent performing work. An employee’s use of SSL is limited to 40 or 56 hours per year, depending on employer size.

Hours only accrue under each law for work performed in the state or city, respectively. For NYC, employers need only include hours the employee is physically working in NYC. Employees who telecommute are covered for the hours when they are physically working in NYC (on-site or by telecommuting), even if the employer is physically located outside of NYC. For employees who work in NYC on an occasional basis, the employer must calculate the SSL accruals based on the hours that the employee spends working in NYC. Employees are not covered for the hours when they are not physically working in NYC even if the employer is physically located in NYC. Likewise, for the state law, employees who telecommute are only covered by the law for the hours they physically work in New York, even if the employer is located outside of New York.

New York City
If an exempt employee works 40 or more hours in a week, SSL still accrues based on a 40-hour week, but if an exempt employee works less than 40 hours a week, SSL accrues based on the employee’s normal workweek. For nonexempt employees, time accrues on all hours worked even overtime.

Accruals must account for all time worked regardless of if it is less than 30 hours. For calculating increments less than 30 hours, employers may round accrued leave to the nearest five minutes or the nearest one-tenth or quarter of an hour, provided it will not result over a period of time in a failure to provide the proper accrual of leave to employees for all the time they actually worked.

Employees paid on a piece rate accrue SSL by the actual length of time spent performing the work; employees paid on a commission basis also accrue leave based on the actual length of time spent performing work.

Must employers notify employees of safe and sick leave accruals?

New York state
Upon an employee’s request, the employer must provide, within three business days, a summary of the amounts of SSL accrued and used by the employee in the current calendar year and/or any previous calendar year(s).

New York City
Employers must identify the amount of SSL accrued, used and available for use each pay period either on the pay statement or in a separate document.

Which employers are covered by the safe and sick leave laws?

New York state
All private-sector employees in New York state are covered, regardless of industry, occupation, part-time status, and overtime-exempt status. Federal, state and local government employees are not covered, but employees of charter schools, private schools and not-for-profit corporations are covered.

New York City
Most employees working in NYC are covered (e.g., full time, part time, domestic, temporary, seasonal, undocumented). The NYC SSL does not apply to:

  • Federal, State of New York, City of New York government employees
  • Participants in federal work-study programs and work experience programs
  • Employees whose work is compensated by qualified scholarship programs
  • Certain hourly professional employees licensed by the New York State Education Department
  • Independent contractors and owners who do not meet the definition of employee as defined under New York State Labor Law
  • Certain employees subject to a collective bargaining agreement

Can employers avoid accrual by front-loading safe and sick leave instead?

Both laws permit employers to front-load the required amount of SSL at the beginning of the calendar year. Such up-front sick leave is not subject to later revocation or reduction if, for instance, the employee works fewer hours than anticipated by the employer.

For part-time employees, if an employer chooses to front-load fewer than 40 hours, the employer must still track the employee’s hours worked and accrual of SSL because a part-time worker may work more hours than anticipated. If this occurs, the employer must allow the employee to accrue SSL at the rate of one hour for every 30 hours worked until the total amount of front-loaded plus accrued sick leave in a calendar year equals 40 hours. Additionally, an employer that front-loads fewer than 40 hours must allow employees to carry over up to 40 hours of unused sick leave into the new calendar year, in addition to front-loading the amount of time the employer expects the part-time employee to earn in the new calendar year.

For employees hired after Jan. 1, employers do not need to front-load the full 40 or 56 hours as long as the employer tracks accruals. Any amount front-loaded would be based on a projected estimate of hours to be worked.

Is carryover of accrued, unused safe and sick leave required?

If an employer front-loads SSL, there is no carryover requirement. For employers using the accrual method, employees can carry over a maximum of up to 40 or 56 hours of unused SSL depending on employer size. An employer can pay an employee for unused SSL at the end of the calendar year (not during, as it is accrued), but is not required to do so.

New York City
If an employer is changing from the accrual method to the front-load method, no carryover is required if the employer pays employees for the accrued, unused SSL and the employer front-loads the required maximum hours the calendar year which immediately follows.

Can employees use SSL in increments of less than one day?

Yes. Both laws permit employers to require that SSL be used in increments and provide that the minimum increment cannot be more than four hours. Employers can use smaller increments (15 minutes, one hour, etc.). Employers must notify employees in writing or by posting a notice in the work site, prior to the leave being earned, of any restrictions in their leave policy affecting the employees’ use of leave, including any limitations on leave increments.

Lockton comment: NYC clarified that the four-hour minimum only applies to the first four hours of SSL. An employer cannot require that another 30-60 minutes be taken in a four-hour block. If an employee needs SSL for a doctor appointment and misses five hours of work, the employee would be charged five hours of SSL, not eight (the four-hour minimum block only applies to the first four hours).

What rate of pay is used for sick and safe leave?

Under both laws, employees must be paid the greater of their normal rate of pay for any paid leave time or the applicable minimum wage rate. This is true even if the employee is taking leave when they would otherwise receive overtime pay. Employers are not required to pay for lost tips or gratuities but may not take a tip credit for leave time. Employers are prohibited from reducing an employee’s rate of pay for sick leave hours only. 

Employees paid at more than one rate of pay must be paid for leave under the law at the weighted average of those rates (weighted average = total regular pay divided by the total hours worked in the week).

NYC offers this additional guidance:

  • For employees with shifts of indeterminate length, the employer calculates leave used based on the number of hours worked by the replacement employee for the same shift when possible; otherwise, the employer must base the number of hours on the number of hours the employee most recently worked on the same shift in the past.
  • If an employee is paid in cash and supplements, the employer is not required to pay the employee in cash.
  • If the rate of pay fluctuates, the employee should be paid at the rate of pay it would have been during the time employee was scheduled to work but used SSL.
  • If paid by commission, the employer must pay the employee for SSL at an hourly rate that is the base wage or the minimum wage, whichever is greater.
  • If paid at a flat rate regardless of the hours worked, the employer must add together the employee’s total earnings, including tips, commissions and supplements, for the most recent workweek in which the employee did not take SSL and divide by the number of hours worked or 40 (whichever is less).
  • An employee must be allowed to use SSL for mandatory overtime.
  • An employee can work additional hours or swap shifts within the seven days before taking SSL if the SSL was foreseeable or within the seven days after taking SSL. An employer cannot require an employee to swap shifts.
  • An employer cannot require an employee to work from home or telecommute instead of taking SSL but can offer the employee these options and the employee may choose to do so.

An employee must be paid no later than the payday for the next regular payroll period beginning after the employee took SSL. However, if the employer has asked the employee for written documentation or verification of the use of SSL, the employer is not required to pay for SSL until the employee has provided the requested documentation or verification. The employer cannot delay payment of SSL beyond the next regular payroll period beginning after the employee took SSL if the employer’s written SSL policies do not include the requirement that employees provide documentation for more than three consecutive workdays of SSL, the time and manner in which the employee must provide documentation, and the consequences for not providing it. See policy requirements below.

Must an employer pay employees unused safe and sick leave when employment ends?

No. Payout is not required.

New York state
Seasonal employees who maintain their employment relationship with their employer maintain their accruals through such breaks in employment.

New York City
An employee who returns to the same employer within six months of separating can access previously accrued SSL unless the employer paid the employee for unused SSL when the employee left and the employee agreed to be paid out. If the break in employment is more than six months, the law does not require the employer to reinstate unused SSL. The employee would have a zero balance on the first day but would begin to accrue immediately.

What can sick and safe leave be used for?

After Jan. 1, 2021, employees may use SSL following a verbal or written request to their employer for the following reasons: 

Sick leave: 

  • An employee’s mental or physical illness, injury or health condition, regardless of whether it has been diagnosed or requires medical care at the time of the request for leave, need for medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition, or need for preventive care
  • Care of a family member with a mental or physical illness, injury or health condition, who needs medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition, or who needs preventive care

Safe leave: 

  • For an absence from work when the employee or employee’s family member has been the victim of domestic violence as defined by the State Human Rights Law, a family offense, sexual offense, stalking, or human trafficking due to any of the following as it relates to the domestic violence, family offense, sexual offense, stalking, or human trafficking

Who is a family member?

Both the state and city laws define family member to include 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 a biological, foster, step or adoptive parent, or a legal guardian of an employee, or a person who stood in loco parentis when the employee was a minor child. “Child” is defined as a biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis regardless of age.

NYC expands the definition of family member to also include:

  • Spouse (includes current or former, and regardless of whether they reside together)
  • Domestic partner (includes current or former, and regardless of whether they reside together)
  • Sibling (includes half sibling, adopted sibling or stepsibling)
  • Any other individual related by blood to the employee
  • Any other individual whose close association with the employee is the equivalent of a family relationship

What if an employee uses safe and sick leave for an unauthorized purpose?

An employer may discipline an employee who uses leave for purposes other than those provided for under the law. Signs of possible misuse include using unscheduled SSL on or adjacent to weekends, regularly scheduled days off, holiday, vacation or payday, as well as taking leave on days when other leave was denied.

When are employees eligible to take safe and sick leave?

Immediately upon hire (even probationary employees) if frontloaded or, if not, once time is accrued.

Are employees required to notify employers in advance of using safe and sick leave?

New York state
Unless otherwise specified by the employer, there is no specific notice or time period in the law. The employee must make an oral or written request to the employer before using the SSL.

New York City
The employer may require an employee to provide reasonable notice of an employee’s foreseeable need for safe and sick leave. Seven days’ advance notice may be required, and the employer’s written policy must describe how employees must provide notice. Here is the NYC form which employees can complete to request SSL.

If the need for safe and sick leave is unforeseeable, notice must be as soon as practicable. The employer’s policy must include a reasonable procedure for providing notice of an unforeseeable use of safe and sick leave. Leave can be denied when notice is not provided so long as the employer distributed a written SSL policy describing the steps an employee must take to provide notice of the need to use SSL and the employer cannot deny SSL or payment for SSL if the notice required by the employer was not reasonable.

Can the employer require documentation of the need for leave?

New York City
Yes, but there are limitations. First, documentation can only be required when an employee uses leave in excess of three consecutive previously scheduled workdays or shifts. Further, employees are to be reimbursed any costs or fees associated with obtaining medical or other verification of eligibility for use of SSL. Employers cannot require an employee to provide confidential information. In lieu of seeking a note from a doctor or other professional related to safe leave, employers may ask the employee to submit written verification that the employee used the SSL for an SSL purpose. See this link for the NYC suggested form.

What impact do collective bargaining agreements have on safe and sick leave?

New York state
If the collective bargaining agreement (CBA) is entered into on or after Sept. 30, 2020, it may provide for different leave benefits so long as they are comparable to those required by the law and the agreement specifically acknowledges the provisions of Labor Law Section 196-b. Such acknowledgement should also specifically identify any benefits deemed comparable to the leave in the law. CBAs entered into after Sept. 30, 2020, must provide for comparable benefits/paid days off for employees and specifically acknowledge the provisions of Labor Law 196-b. For the purposes of CBAs, leave time with fewer restrictions on its use is deemed comparable to that required by the NYSPSSL, regardless of the name and multiple leave benefits which meet the use requirements of this law may be combined to satisfy the “comparable benefit” requirement. To satisfy the requirements of this law, any CBA entered into after Sept. 30, 2020, must specifically reference Labor Law Section 196-b.

New York City
The city SSL law does not apply to employees covered by a valid CBA that was in effect on April 1, 2014 (or in effect before the effective date of subsequent amendments to the Law), until the CBA expires. For union employees, the NYC law does not apply if the CBA expressly waives the Law’s provisions and the agreement provides a comparable benefit to employees (e.g., paid time off). An exception is employees in the construction or grocery industries covered by a CBA that came into effect after April 1, 2014 (or after the effective date of subsequent amendments to the Law), the law does not apply if the CBA expressly waives the Law’s provisions. The agreement does not have to provide a comparable benefit.

Are there penalties if an employer fails to comply with the applicable safe and sick leave law?

Yes. The failure to provide SSL is the same as failure to pay wages and may subject an employer to civil/administrative actions and/or criminal penalties, including an order assessing the full amount of the wage underpayment, 100% liquidated damages, and civil penalties in an amount up to double the total amount to be due.

What are the employer’s record-keeping requirements?

New York state
Employers must keep payroll records for six years which must include the amount of SSL accrued and used by each employee on a weekly basis. Upon request of an employee, employers are required to provide, within three business days, a summary of the amounts of SSL accrued and used by the employee in the current calendar year and/or any previous calendar year.

New York City
Employers must keep current and past written SSL policies and maintain records documenting compliance with the law for three years (or longer if required by other laws), specifically:

  • Name, address, phone number, start date of employment, end date of employment (if applicable), rate of pay, and whether the employee is exempt from overtime requirements of NYS Labor Law
  • Hours worked each week (unless exempt)
  • Date and time of each instance of SSL used and the amount paid for each instance
  • Any change in the material terms of employment specific to the employee
  • Date that the Notice of Employee Rights was provided to the employee and proof that it was received by the employee

Lockton comment: This documentation is required even if the employer provides employees with leave benefits that exceed the NYC law’s requirements.

What notices are employers required to provide employees about the safe and sick leave?

New York City
By Jan. 1, 2021, employers must give covered employees a written Notice of Employee Rights (“Notice”) and must also post the Notice in the workplace in a conspicuous place accessible to employees. The Notice must be delivered in a method that reasonably ensures employees will receive the Notice (e.g., personal delivery, regular mail, email or included in new hire materials). The Notice cannot be posted in lieu of individually providing the Notice to all covered employees. Employers are required to maintain records establishing (i) the date the Notice was provided to each employee and (ii) proof that the Notice was received by the employee. Saving signed copies of the Notice or email receipts are identified as ways an employer can document that Notice was provided. Even if the employer has a policy that meets or exceeds the law, the Notice is still required. After providing the initial Notice to existing employees, the Notice must be provided to new hires when their employment begins and to all employees when their rights change. A sample Notice can be found here.

What must an employer policy addressing safe and sick leave requirements contain?

New York City
An employer’s SSL policy must meet or exceed the requirements of the NYC law. Employers should consider adding language to their current sick leave policies to clarify that the New York state and NYC SSL provisions run concurrently with each other and that there are not separate allotments of leave under each law. In addition to providing employees with the Notice (above), employers must ensure the written policy complies with the detailed Rules for Sate and Sick Leave Policies. Employers must distribute written safe and sick leave policies personally when an employee begins employment, within 14 days of the effective date of any policy change and upon employee request. An employer may not distribute the Notice in lieu of maintaining, distributing or posting a written policy.

Additional resources:

 

Not legal advice: Nothing in this alert should be construed as legal advice. Lockton may not be considered your legal counsel, and communications with Lockton's HR Compliance Consulting group are not privileged under the attorney-client privilege.

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