Written By: Cathryn Harris-Marchesi
New York State Paid Sick Leave (“NYSSL”), signed into law in April 2020 by Gov. Cuomo reinforces the States recent trend in increasing protections for workers as well as individuals who are victims of sexual assault and/or domestic violence. NYSSL provides paid time off for eligible employees under a new category of “safe leave” as well as the traditional “sick leave.”
NYSSL provides “safe leave” for employees when and 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 due. New York State has specifically determined that “Safe leave” is permitted to be taken for any of the following purposes as it relates to the domestic violence, family offense, sexual offense, stalking, or human trafficking: 1) to obtain services from a domestic violence shelter, rape crisis center, or other services program; 2) to participate in safety planning and/or temporarily or permanently relocate; 3) to meet with attorney or social services to obtain legal advice and/or prepare for or participate in any criminal or civil proceeding; 4) to file a complaint or domestic incident report with law enforcement; meet with a district attorney’s office; 5) to enroll children in a new school; or 6) to take any other actions necessary to ensure the health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.
Alternatively, “Sick leave” pursuant to NYSSL is defined by the NYSSL as: 1) for 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 2) for the diagnosis, care, or treatment of a mental or physical illness, injury or health condition; or need for medical diagnosis or preventive care.
Eligibility for NYSSL covers both full-time and part-time private sector employees irrespective of industry, including employees who work for non-profits and private schools. Public sector employees, employee who work for the federal, State or local government, are not covered by the NYSSL.
Private Sector Employers must provide leave in accordance with the following:
- Employers with 100 or more employees must provide up to 56 hours of paid sick leave per calendar year.
- Employers with 5 to 99 employees must provide up to 40 hours of paid sick leave per calendar year.
- Employers with 4 or fewer employees and net income of greater than $1 million in the previous tax year are required to provide up to 40 hours of paid sick leave per calendar year.
- Employers with 4 or fewer employees and net income is $1 million or less in the previous tax year are required to provide up to 40 hours of unpaid sick leave per calendar year.
As of September 30, 2020, eligible employees commenced accruing leave at the rate of one hour per thirty hours worked and can start taking leave pursuant to the NYSSL as of January 1, 2021. Employers are permitted to require that leave be used in increments but may not set the minimum increment at more than four hours. Unused leave pursuant to the NYSSL may be rolled over into the next calendar year, however an employer is not required to provide more than fifty-six hours of paid leave per annum pursuant to the NYSSL. If an employee resigns or is terminated, the employee is not entitled to receive payment for unused leave under NYSSL.
The NYSSL prohibits relations against employees who use leave pursuant to the new law. For example, an employee must receive their regular rate of pay during leave. The employer is prohibited of reducing the employee’s rate of pay while on leave pursuant to NYSSL. Similarly, the employee must be returned to their original position when retuning from leave.
The NYSSL is a significant tool to protect workers and provide paid leave to contend with issues that effect employees ability to perform at work and live health lives.
Note: Benefits available to employees through both NYSSL and the New York State COVID-19 related paid sick leave, passed into law on March 18, 2020, should not run concurrently. Practitioners are currently anticipating guidance from the New York State Department of Labor on this issue.