On September 28, 2020, New York City Mayor Bill de Blasio signed a local law amending the City’s Paid Sick Law (PSL) to align with New York State’s sick leave law (SLL), both of which took effect on September 30, 2020.1 The City has amended the PSL for consistency with the SLL, including in how time is accrued and which businesses are covered.
Now, all employees in New York State—including those in NYC and Westchester County—are entitled to either 40 or 56 hours of annual safe/sick time (depending on the size of the employer). Most employees in the state will be entitled to paid sick/safe time, with some exceptions for small employers that need only provide unpaid leave.
Amended Leave Amounts
- 1. Employers with four or fewer employees and net income of $1 million or more in the previous tax year must now provide 40 hours of paid safe/sick time to employees annually (employers with four or fewer employees and net income of less than $1 million in the previous tax year must provide 40 hours of unpaid sick and safe time to employees annually).
- 2. Employers with five to 99 employees must provide 40 hours of paid safe/sick time to employees annually.
- 3. Employers with 100 or more employees must provide 56 hours of paid safe/sick time leave to employees annually, up from the prior 40-hour requirement.
- Notice to Employees: Employers must notify their employees of the changes to the PSL by October 30, 2020, and must continue to provide new employees with a notice of rights upon commencement of employment.
- Pay Statements: NYC employers are now required to note on employees’ pay statements (or another written communication each pay period): (i) the amount of PSL leave accrued and used during the pay period, and (ii) employees’ total balance of accrued PSL leave.
- Reimbursement for Documentation Fees: Employers may still require employees to submit medical documentation after three consecutive days of PSL use but must now reimburse for any fees associated with obtaining documentation, i.e., fees charged by a healthcare provider.
- Ongoing Consistency with SLL: The PSL amendments further provide that if the State’s SLL or any SLL regulations establish a standard or requirement for minimum hour or use of safe/sick time that exceeds any provision of the PSL, that standard or requirement is incorporated by reference into the PSL and is enforceable by the Department.
- The City’s Department of Consumer and Worker Protection (Department) has expanded enforcement authority, including new subpoena and investigative powers, and can now bring “pattern or practice” enforcement actions against employers. The penalty for a “pattern or practice” of noncompliance can reach $15,000, with room for an additional $500 in damages for each employee not permitted to utilize leave under the PSL.
- The City may now impose penalties on a “per employee basis.”
- Employers should also note that they now must provide the Department with a written response and requested information within 14 days of written notice of the Department’s investigation, changed from the prior requirement of a response within 30 days of written notice of a complaint.
- The PSL amendments expand the list of prohibited retaliatory actions. For example, employers cannot take adverse action that is “reasonably likely to deter an employee from” exercising or attempting to exercise rights under the PSL, like using safe/sick time, and defines the term “adverse action” to include without limitation threats, discharge, reduction in hours or pay, blacklisting and maintenance, or application of an “absence control policy” that counts protected leave as an absence that can lead to adverse action.
- The amendments also provide that a causal connection between an employee’s protected activity, like taking protected leave, and an employer’s adverse action against that employee can be established by indirect or direct evidence and a violation of the PSL is established when it is shown that the protected activity was a “motivating factor” for the adverse action, regardless of whether other factors motivated the adverse action.
Accrual and Use of Sick and Safe Leave
Employees still accrue PSL leave at the rate of one hour for every 30 hours worked, and employers are still permitted to frontload all PSL leave at the beginning of a calendar year.
Employers with 99 or fewer employees must permit employees to carry over up to 40 hours of unused PSL leave to the following calendar year, and employers with more than 99 employees, up to 56 hours. Employers can cap use of sick/safe time at 40 and 56 hours, respectively.
The PSL no longer requires that employees work 80 hours within NYC as a threshold for eligibility. Now, any person employed within NYC on a full-time or part-time basis is eligible for PSL leave.
New employees may now use PSL leave as it accrues. Previously, employers were permitted to require new employees to work for 120 days before using PSL leave. The City has provided some lead time for employers to adjust to the amendments. Specifically, employees of small employers newly required to provide paid leave may use PSL leave as it is accrued on or after January 1, 2021, and employees of employers with more than 99 employees may use any accrued amount of PSL leave that exceeds the 40 hours previously required on or after January 1, 2021.
New Notice and Documentation Requirements
Expanded Enforcement and Retaliation Provisions
Employers should take swift action to notify their current employees by October 30, 2020, of the changes to the PSL. Further, employers should work with their payroll and human resources departments to ensure that pay statements provide required information and that reimbursement is available for documentation fees.
Employers should also revisit the terms of their leave policies to ensure compliance with both the PSL and SSL and confer closely with counsel before taking any employment action that involves an employee’s protected activity under the PSL.
1 As detailed in our recent client advisory (and those from April and May), eligible employees began accruing SLL leave on September 30 and may utilize earned sick leave under the SLL starting January 1, 2021.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
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