On September 30, a new New York State sick time law and amendments to New York City's Earned Safe and Sick Time Act (ESSTA) became effective. Such laws require employers in New York State and City to take immediate action and, depending on the size of the employer, to potentially provide more paid or unpaid time off to employees in 2021.
Since ESSTA has been in place for years, New York City employers have already been providing their employees with at least one hour of paid sick time for each 30 hours worked, up to a maximum of 40 hours per year. ESSTA was amended recently to mirror the requirements of the new New York State law, including as follows:
Those New York State employers outside New York City are newly required, as of the September 30 effective date of the law, to start accruing one hour of sick time for each 30 hours worked, up to a certain maximum based on the size and net income of the employer, for use starting on January 1, 2021. Employers with four or fewer employees in a calendar year and net income of less than $1 million are required to provide up to 40 hours of unpaid time, while those with more than four employees and a net income of more than $1 million, and employers with five to 99 employees, must provide up to 40 hours of paid time. Employers with 100 or more employees must provide up to 56 hours of paid time. The number of employees is determined based on a calendar year (January 1 to December 31), but employers can set their benefit year as any consecutive 12-month period for employees' accrual, use, and rollover of paid sick leave. Employers must retain records of each employee's accruals and use on a weekly basis for six years.
Employees are entitled to use their sick time for the following reasons:
Family member is defined as child, spouse, domestic partner, parent, sibling, grandchild, grandparent, and the child or parent of an employee's spouse or domestic partner. Employees must be permitted to use accrued time in reasonable increments, set forth in writing by the employer, up to a maximum of four hours.
Existing leave policies that meet the accrual, use and carryover requirements of the new law satisfy employers' obligations under the new law. If operating under a collective bargaining agreement, employers and the unions representing their employees may agree to waive or modify the entitlements under certain circumstances. Employers are prohibited from retaliating against employees for exercising their right to use sick time. More specific information about this new law can be found in the newly issued guidance.
It is worth noting that the New York State law and the amended ESSTA have some nuanced differences that may cause them not to entirely overlap. For example, the reasons for use of paid sick leave are broader under ESSTA and include "closure of employee's place of business … due to public health emergency or such employee's need to care for a child whose school or childcare provider is closed due to public health emergency." Further, the definition of family member under ESSTA additionally includes "any other individual related by blood to the employee, and any other individual whose close association with the employee is the equivalent of a family relationship."
With regard to notice, the New York State law, unlike the more onerous requirements under ESSTA, merely requires employers to provide an accounting of time employees have accrued and used within three days of a written request.
Given New York State's new law and the amendments to ESSTA, employers should review their paid time off policies to ensure that they meet the requirements of these laws, and to immediately ensure compliance with ESSTA's new notice and pay stub requirements if applicable.
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