NYS Paid Sick Leave Requirement 2021
New York State’s fiscal year 2021 budget, which passed into law on April 3, 2020, included a new statewide sick leave requirement. The new requirement is separate from the COVID-19 paid sick leave program, which is set to expire on December 31, 2020.
Employees may be restricted from utilizing the new sick leave benefits until January 1, 2021.
Amount of Leave
How much sick time must be made available? That depends on the size of your company:
- Employers with 4 or fewer employees in any calendar year and a net income of less than $1 million in the prior tax year must provide employees with up to 40 hours of unpaid sick leave
- Employers with 4 or fewer employees in any calendar year and a net income of greater than $1 million in the prior tax year must provide employees with up to 40 hours of paid sick leave per year
- Employers with between 5 and 99 employees in any calendar year must provide employees with up to 40 hours of paid sick leave per year
- Employers with 100 or more employees in any calendar year must provide up to 56 hours of paid sick leave per year
To determine an employer’s size under the law, a calendar year is defined as the 12-month period from January 1 to December 31.
For the purpose of using and accruing paid or unpaid leave under the law, a calendar year means the 12-month period from January 1 through December 31, or a regular and consecutive 12-month period, as determined by an employer.
Accrual or Lump Sum
You may choose to credit employees with sick leave as they work, using an accrual method. If you choose to use the accrual method, the minimum accrual rate allowed is 1 hour per every 30 hours worked, with a cap set at the annual maximum amount of sick leave based on your business size. If you choose to accrue sick leave, the accruals must begin by September 30, 2020, or the date of hire, whichever is later, even though employees may not access the sick leave prior to January 1, 2021.
Alternatively, you may choose to provide the full annual amount in a lump sum at the beginning of each year, beginning with January 1, 2021, but if you use this method, you may not reduce the available amount of sick leave based on the number of hours actually worked by the employee.
Unused sick leave carries over to the following year, though employers with fewer than 100 employees may limit the use of sick leave to 40 hours per year, and employers with 100 or more employees may limit the use of sick leave to 56 hours per year.
Covered Reasons for Taking Leave
1. the need for diagnosis, care, or treatment of a mental or physical illness or preventative care of the employee or the employee’s family member; and
2. certain needs related to the employee or the employee’s family member being the victim of domestic violence, sexual offenses, stalking, or human trafficking, including obtaining services from a domestic violence shelter, rape crisis center, or other services program; participating in safety planning; temporarily or permanently relocating; meeting with an attorney or participating in legal proceedings; enrolling children in a new school; or taking other actions to increase the safety of the employee or employee’s family members
For purposes of this leave, a “family member” includes an employee’s child (including foster child, legal ward, or equivalent legal relationship), spouse, domestic partner, parent (including a step- or foster parent, legal guardian, or equivalent legal relationship), sibling, grandchild, grandparent, and the child or parent of an employee’s spouse or domestic partner.
Other Sick Leave Certainties- what we DO know as of this date
Employers may set a minimum daily increment for the use of sick leave of no greater than four (4) hours.
Unused sick leave need not be paid out upon an employee’s separation or termination of employment.
Upon return from sick leave, the law requires employees to be restored to the same position as held before the leave with the same pay and terms and conditions.
Employers do not need to provide additional leave if they already have a sick leave or other paid leave policy that provides employees with the same or greater amount of leave as required under this new law. However, those leave programs already in place must meet the law’s accrual, carryover, and usage requirements.
Since for the purpose of using and accruing paid or unpaid leave under the law, a calendar year means the 12-month period from January 1 through December 31, or “a regular and consecutive 12-month period, as determined by an employer”, if you currently use an anniversary year, fiscal year or any other 12 month period to administer your paid time off, you may continue to do so.
Confidentiality stipulations apply to the documentation required, and retaliation upon return to work is prohibited.
Record-keeping requirements are in place:
1. Employers must keep records showing the amount of sick leave provided to each employee under the law, and those records must be maintained for 6 years.
2. Employers must provide a summary of the amounts of sick leave accrued/given and used by the employee in the current calendar year or any previous year, upon written or oral request made by an employee, within 3 business days of the request.