By this point in time you are probably aware that on April 3, 2020 former Governor Andrew Cuomo, upon signing the fiscal year New York State Budget for 2021, amended the New York Labor Law by adding Section 196-b, which established the right to paid sick and safe leave for all private-sector employees in New York State. You may be wondering what the intricacies around leave requirements are, accruals, eligibility, permitted uses, recordkeeping and other complexities, in order to make sure your business, or your employer, is in com29pliance with the law.
As a first step, it is important to identify who is eligible and covered by the state’s new sick and safe leave law. Per New York State Paid Sick Leave, all private-sector employees in New York State are covered regardless of industry, occupation, part-time status, and overtime exempt status. However, federal, state and local government employees are not covered under this new law. Interestingly, charter schools, private schools, and not-for-profit corporations are covered. These covered employers are required by law to provide a minimum number of hours for paid sick and safe leave depending on the size of their business. For example, if your business has between five (5) to ninety-nine (99) employees, as an employer you will be required to provide up to forty (40) hours of paid sick leave per calendar year. However, if your business has only four (4) employees with a net income greater than one (1) million dollars in the previous tax year, you will be required to provide up to forty (40) hours of paid sick leave per calendar year, in comparison to those businesses with the same number of employees but with a net income of one (1) million dollars or less, which are required to provide forty (40) hours of unpaid sick leave. The number of employees is determined by the calendar year, which means a period of twelve (12) months starting January 1 and ending December 31.
As a second step, you should keep in mind that employees began to accrue leave on September 30, 2020 and, as a general rule, leave must be accrued at a rate no less than one (1) hour for every thirty (30) hours worked. Note that these are minimum requirements and employers may choose to put in place alternate accrual systems such as up-front sick leave as part of their benefits package.
Third, you should be aware that family members qualify for purposes of the law and an employee may take sick or safe leave to care for a family member, a parent or a child, as defined by the law.
These are just three major elements to take into consideration. Nonetheless, you may be wondering what the difference between “sick leave” and “safe leave” is. Sick leave encompasses 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, or for the diagnosis, care or treatment of a mental or physical illness, injury or health condition, or need for medical diagnosis or preventive care. Note that employees can also use their accrued sick leave for recovery of any side effect of the COVID-19 vaccination. On the other hand, safe leave may be used 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.
There are numerous other considerations to take into account when reviewing whether your business, or your employer, is in compliance with New York State Paid Sick Leave, but I will close today’s blog by highlighting that all employers must keep payroll records for a period of six (6) years, which must include the amount of sick leave accrued and used by each employee on a weekly basis and all employees are entitled to sick leave – either paid or unpaid depending on the size of their employer. Remember compliance is a big part of maintaining a healthy business while simultaneously mitigating your business risks.