Last April, New York State enacted a Paid Sick Leave Law (“NY Paid Sick Leave Law”) which took effect on September 30, 2020, though employers are not obligated to allow employees to use their sick leave until January 1, 2021. In response to the State’s legislation, the mayor of New York City signed a Bill on September 28, 2020, amending the New York City Paid Safe and Sick Leave Act (“NYC Safe/Sick Leave Law”) to remove discrepancies with the New York Paid Sick Leave Law, including (1) elimination of the waiting time period for new employees and (2) increasing the number of paid leave days for employers with 100 or more employees from 40 hours (five days) to 56 hours (seven days). But the NYC Safe/Sick Leave Law amendments go further than just aligning with the New York Paid Sick Leave Law, imposing additional requirements on New York City employers as described below.
The NYC Safe/Sick Leave Law’s amendments take effect in two Phases.
Phase 1 Amendments. Effective September 30, 2020, New York City Employers Must:
- Allow employees to use safe/sick leave immediately upon accrual, eliminating the 120-day waiting period previously permitted under the NYC Safe/Sick Leave Law.
- Reimburse employees for costs incurred when required by the employer to obtain documentation confirming that the use of safe or sick leave was for an authorized purpose. Note: employers are only permitted to require such documentation after three or more consecutive workday absences.
- List on employees’ paystubs (or any document issued each pay period) the amounts of accrued and used safe/sick leave, and the total balance of accrued safe/sick leave. Employers may be subject to civil penalties of up to $50 for each employee who is not given appropriate notice each pay period. Note: for this requirement only, employers that could not implement the documentation requirement by September 30, 2020, but are working in good faith to do so, will have until November 30, 2020 to ensure compliance without penalty.
Phase 2 Amendments. Effective January 1, 2021, New York City Employers With:
- 100+ employees must provide 56 hours (7 days) of annual paid safe/sick leave. This expands employees’ paid safe/sick leave allotment by 16 hours (2 days) to match the New York Paid Sick Leave Law entitlement.
- 5 to 99 employees must provide 40 hours (5 days) of annual paid safe/sick leave. This is not a change to the current law.
- 4 or less employees and a net income of $1 million or more in the previous tax year must provide 40 hours (5 days) of annual paid safe/sick leave. This expands the paid safe/sick leave to match the New York Paid Sick Leave Law entitlement (before the amendments, employers with less than 4 or less employees were only required to provide up to 40 hours (5 days) of unpaid safe/sick leave regardless of the employer’s net income).
- 4 or less employees and a net income of less than $1 million in the previous tax year must provide 40 hours (5 days) of unpaid job-protected paid safe/sick leave each calendar year. This is not a change to the current law.
Additionally, all employees are entitled to accrue safe/sick leave, regardless of part-time, temporary, or seasonal status. Before the recent amendments, safe/sick leave accrual was limited to employees who work more than 80 hours in a calendar year.
Leave Accrual Rate
Under both the NY Paid Sick Leave Law and the NYC Safe/Sick Leave Law, employees accrue leave at a rate of 1 hour for every 30 hours worked, unless the employer elects to frontload the full leave entitlement at the beginning of the year. Employees begin accruing leave under both laws on the effective date of the laws (September 30, 2020), or on the commencement of their employment, whichever is later. Both laws set a floor, and they do not prevent employers from increasing the accrual amount or the rate of accrual.
Using Safe/Sick Leave
Under both the NY Paid Sick Leave Law and the NYC Safe/Sick Leave Law, employees can make requests to use leave orally or in writing for themselves or family members in the following circumstances:
- A mental or physical illness, injury, or health condition, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that the employee requests the leave;
- Diagnosis, care, or treatment of a 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; or
- For an absence from work because the employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking.
Employers should be mindful that, unlike the NY Paid Sick Leave Law, the NYC Safe/Sick Leave Law also extends to:
- Participating in safety planning, relocation, or taking other actions to protect employee’s or family member’s safety, including enrolling children in a new school; and
- Meeting with an attorney or social services provider to obtain information and advice related to custody, visitation, matrimonial issues, orders of protection, immigration, housing, and discrimination in employment, housing, or consumer credit.
Scope of Prohibited Retaliation Expanded
While the pre-amended NYC Safe/Sick Leave Law prohibited employer interference and retaliation in connection with employees’ exercise of their rights, the amendments expand the scope of prohibited retaliation to include any adverse action that penalizes employees for, or is reasonably likely to deter employees from, exercising or attempting to exercise their rights under the NYC Safe/Sick Leave Law. Pursuant to the amendments, employees (1) are not required to explicitly reference the NYC Safe/Sick Leave Law to be protected from retaliation and (2) are protected from retaliation when they mistakenly, but in good faith, assert their rights under the NYC Safe/Sick Leave Law.
Employers must provide written notice to employees of the changes under the NYC Safe/Sick Leave Law within 30 days of the law’s effective date, which is October 30, 2020. In addition, Employers must provide new employees with a notice of their rights under the NYC Safe/Sick Leave Law at the time of hire. Note: the New York City Department of Consumer and Worker Protection (“NYC DCWP”) is in the process of updating materials based upon the amendments, which will be available at nyc.gov/workers.
The NYC Safe/Sick Leave Law amendments allow New York City’s Corporation Counsel to initiate judicial proceedings against employers to enforce any NYC Safe/Sick Leave Law compliance order issued by the NYC DCWP.
Further, the amendments allow the Corporation Counsel to bring suit on behalf of New York City against employers with a “pattern or practice” of NYC Safe/Sick Leave Law violations and to conduct formal investigations into any such claims. Under the amendments, employers found to have engaged in a pattern or practice violation may face civil penalties of up to $15,000, as well as individual relief of up to $500 with respect to each employee denied leave under the NYC Safe/Sick Leave Law.