Summary: Earned Sick Time Act
Brian Igel
Summary
Effective as of April 1, 2014, private sector employers with five or more employees must provide paid sick leave to eligible full-time and part-time employees who work in New York City for more than 80 hours in a calendar year. Employers with less than five such employees must provide unpaid leave.
Determining Employer Size
Where the number of employees fluctuates, size may be determined by reference to the average number of employees who worked for compensation per week during the preceding calendar year. Special aggregation rules apply to chain businesses.
What is a calendar year?
The calendar year is a bit of a misnomer. It can either be a set fiscal year of the employer’s choice (e.g., January 1 to December 31), or it can vary from employee to employee, based on an employee’s particular start date. Regardless of which is chosen, meticulous record keeping regarding accrual and carry over is necessary.
Who is exempt?
1. Public sector employers are generally exempt.
2. Private sector employers that provide the requisite paid time off (e.g., vacation and/or personal days) – not just to full time employees but part-time employees also.
3. Private sector employees that are participants in work experience programs, participants in federal work-study programs, employees compensated via qualified scholarships, certain hourly professionals licensed by the NYS DOE and certain employees subject to a collective bargaining agreement (CBA).
4. Private sector employees who are telecommuters not telecommuting from NYC.
5. Independent contractors and anyone who is 1099’d.
6. Employees covered by a Collective Bargaining Agreement (CBA) on April 1, 2014 (until such agreement terminates). In addition, the new leave provisions will not apply thereafter if the new CBA expressly waives the provisions and provides a comparable benefit.
7. Construction or grocery industry employees covered by a CBA (regardless of whether the agreement provides a comparable benefit).
Accrual
Accrual of sick time begins the later of (i) commencement of employment or (ii) April 1, 2014. Employers need not allow employees to utilize accrued time until 120 days after employee has been hired (or August 1, 2014, whichever is later). The accrual rate is 1 hour of sick leave per 30 hours worked. The annual employer year accrual cap is 40 hours of sick leave.
Use
1. Accrued sick time may be used for one’s own or a family member’s mental or physical condition or preventive medical care. A “family member” is an employee’s child, grandchild, spouse, domestic partner, parent, grandparent, sibling, or the child or parent of an employee’s spouse or domestic partner. Employees may also use accrued sick time for reasons relating either to the closure of their place of business or child’s school or day care due to a public health emergency.
2. Employers may set a minimum increment of sick time use, not to exceed four hours per day.
3. Employers may require employees to provide up to 7 days advance notice of the need for leave if employee’s need is foreseeable, or as much notice as practicable when employee’s need is not foreseeable. Employers may also require reasonable documentation from a licensed health care provider establishing the need for leave lasting more than three consecutive work days. Note that employers may not require disclosure of the nature of the need for leave as part of such documentation.
Carryover
1. Any and all accrued sick time must be allowed to carry over to the following employer year (unless the employer pays the employee for that time). However, the employer may cap sick time in any employer year at 40 hours...
2. Employers are not required to pay employees for accrued but unused sick time upon retirement or separation from employment. Employers are, however, required to reinstate previously accrued but unused sick time if an employee is rehired within six months after separation.
Notice/Recordkeeping Requirements
1. Employers must provide written notice of (i) employees' right to sick time, (ii) rules regrarding accrual and use, (iii) the employer’s "calendar year", and (iv) their right to file a complaint and to be free of retaliation. Notice must be given to new hires employed on or after April 1, 2014 on their first day of employment and to current employees by May 1, 2014. Notice must be given in English and in the primary language spoken by the employee, provided the DCA has made a translation available in downloadable format on its website. The DCA has posted a notice template in English, Spanish, Chinese, French-Creole, Italian, Korean, and Russian on its website. Posting the notice, by itself, does not satisfy the notice requirement.
2. Employers must retain records of hours worked by employees for 3 years, as well as the amount of sick time accrued and used. Confidentiality of records must be maintained.
Anti-retaliation
An employer is prohibited from threatening, firing, disciplining, reducing hours, or taking other adverse employment actions against employees who request or use sick time.
Enforcement/Penalties
1. Any employee who claims to have been denied sick leave must seek relief only through the DCA. Employees have two years from the date they knew or should have known of a violation to file a complaint with the DCA. Available remedies include lost wage and benefits, and equitable relief such as reinstatement, as appropriate. In addition, employers who violate the Act will be liable for civil penalties ranging from $500 for the first violation up to $1,000 for subsequent violations. A penalty of up to $50 may be imposed for each employee who was not given the employee rights notice.
2. Employers with fewer than 20 employees (and certain employers in the manufacturing sector) will have a six-month grace period (until October 1, 2014) to achieve full compliance. During that period, those employers will not be subject to penalties, and a first violation will not be counted against them. However, a second violation that occurs before October 1 will count toward penalties if a subsequent violation for the same offense occurs after October 1.
