New York City Employers Must Pay Sick Leave

“…the Act gives employees the right to carry over sick time from year to year or have it paid out at the end of the year, creates new notice and recordkeeping requirements for employers, and protects employees against retaliation for using sick time.” (Julie Levinson Werner, Lowenstein Sandler LLP)

Companies that employ more than 15 workers in New York City will soon be required to provide each employee up to five days of paid sick leave per year, thanks to a new law enacted at the end of June.

The Earned Sick Time Act (ESTA), vetoed by Mayor Bloomberg before being overwhelmingly approved by the City Council, applies to most employers based in the city. For your convenience, here’s a brief Q&A on the new measure:

When does the requirement go into effect?

“Companies with 20 or more employees in New York City must begin complying with the ESTA starting in April 2014. Those with 15 or more employees in the city must comply with the law starting in October 2015.” (Akin Gump)

What about businesses with fewer than 15 employees?

“[A]lthough businesses that employ fewer than 15 employees will not be required to provide paid sick time, beginning on April 1, 2014, they will be required to provide unpaid sick time.” (BakerHostetler)

Are there exceptions?

“To the extent covered companies already provide employees with paid time off that can be used for the purposes enunciated in the ESTA, the new law does not require the provision of additional paid sick time. Certain businesses, such as manufacturing businesses and small businesses that operate on a month-to-month cash flow, are exempt from the new law.” (Akin Gump)

Which employees are covered by the rule?

“The [Earned Sick Time Act] utilizes a rather broad definition of ‘employee,’ encompassing full-time, part-time, and temporary employees, and requires only that the individual worker be employed for at least 80 hours in a calendar year to receive coverage under the Act.” (BakerHostetler)

How will paid leave be calculated?

“[E]mployees will accrue one hour for every 30 hours worked and are entitled to 40 hours (the equivalent of five working days) per calendar year. While accrued but unused sick leave may be carried over from year to year, an employee may only use 40 hours of leave per calendar year.” (Morgan Lewis)

What is considered “sick leave” under the new law?

“It is worth noting that, despite being characterized as a paid sick leave measure, the Act actually covers a broad category of absences, including the following:

  • Absences due to the employee’s own mental or physical illness, injury, or health condition
  • Absences due to the medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition or the need for preventive medical care for an employee or family member
  • Closure of an employee’s place of business or an employee’s child’s school or childcare provider due to a public health emergency” (Morgan Lewis)

Can employers limit worker use of paid sick leave?

“In general, employers may impose a reasonable notice requirement (not to exceed seven days) on employees taking sick leave under the Act, where the time off is planned or foreseeable. For unplanned time off, notice ‘as soon as is practicable’ may be required. Additionally, where an employee takes three or more consecutive days of sick leave, medical documentation substantiating the leave may be mandated by an employer, and in general, employers may require employees to sign off that they are using the sick leave for the purposes enumerated by the statute.” (BakerHostetler)

How will the law be enforced?

“The law will be enforced by the New York City Department of Consumer Affairs (‘DCA’), which will receive complaints of non-compliance from employees, investigate those complaints, attempt mediation and hold administrative hearings when necessary. Complaining employees will be permitted to go to court only after the DCA has issued a final ruling with respect to their complaint.” (Akin Gump)

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