United States: New York City Paid Sick Leave Is Coming And So Are The Questions

The New York City Council struck a compromise deal on mandatory paid sick leave.  While Mayor Michael Bloomberg is expected to veto the proposed legislation, the City Council will override his veto.  There is little doubt this new law (we will analyze the bill's actual language when it is released) will take effect in April 2014.   

Under the bill, New York City businesses with at least 20 employees must offer five paid sick days to employees starting on April 1, 2014.  Starting October 1, 2015, employers with 15 or more employees must offer the five paid sick days.  Employers that are not covered by the law must provide unpaid sick time (the City Council's press release states: "... the bill exempts the smallest of businesses from the paid sick time costs of the bill. They are, however, required to provide unpaid sick leave without retribution to their employees.").  The enactment of this law may be delayed if the economy deteriorates - in which case the law will not take effect until conditions improve.

The questions that arise are numerous, such as (using the 15 employee threshold):

  1. Does the law apply to an employer located outside the City that utilizes 15 City employees?
  2. Do part-time or temporary employees, or independent contractors, or undocumented employees, or employees located outside the City (but located in New York State) count in calculating 15 employees? 
  3. Do City employees accrue paid sick leave for time worked outside the City?
  4. Must an employer that employs 14 City employees and 2 employees outside the City provide paid sick leave to the City employees, or to all employees, or to none?
  5. If during a calendar year, an employer has 10 City employees for 4 months, 15 City employees for 4 months, and 14 City employees for 4 months, do all employees receive paid sick leave, or just those employees during the 4 month period where the employer had 15 City employees (pro-rata)?
  6. If an employer utilizes a temporary staffing agency to provide it with 15 City employees, what entity is responsible for providing paid sick leave?   
  7. May an employer require an employee to utilize paid sick leave when that person is on unpaid FMLA leave? 
  8. May an employee receive disability insurance or workers' compensation and paid sick leave at the same time? 
  9. Do part-time employees accrue 5 paid sick days per year, or a pro rata share based on the average hours worked per workweek? 
  10. How is paid sick leave accrued?
  11. Is accrued but unused paid sick leave payable upon termination? 
  12. Does paid sick leave accrue on overtime hours worked, or while an employee is on vacation or on other leave? 
  13. Is the paid sick leave accrued in one year lost at the beginning of the next year (use-it-or-lose-it)?
  14. If an employer has a more generous paid sick leave policy, is it exempt from the law?
  15. May an employee take intermittent paid sick leave, and if so, what is the smallest amount of time an employee can take?  May an employer require full-day absences?
  16. If an employee abuses paid sick leave, may an employer require the employee to provide a doctor's note to establish legitimate use of the leave – or is this in and of itself an adverse employment action? 
  17. If a City employee is transferred outside the City, what happens to his/her accrued but unused paid sick leave? 
  18. May an employee utilize paid sick leave to care for a sick family member, spouse, or significant other?  Does this leave run concurrently with FMLA? 
  19. May an employee be required to comply with an employer's reasonable advanced notice or attendance policy (e.g., an employee must provide 24 hours of advanced notice via email if possible) or will an employer be required to accommodate anyone with accrued paid leave who decides to take leave without notice? 
  20. May an employer discipline an employee on paid sick leave who violates a reasonable and legitimate attendance policy?
  21. What medical privacy laws must an employer follow when seeking information on the legitimate use of the sick leave?
  22. When accrued but unused sick leave has been exhausted, may an employer deduct salary from an exempt employee on a daily basis without risking loss of the state overtime exemption?
  23. At what rate is the sick leave paid?  Are commissions added to calculate a regular rate of pay?  Are there any exemptions for highly-paid employees? 
  24. Are tips included in calculating paid sick leave for those employees under New York's Hospitality Wage Order? 
  25. Are there posting or other notice requirements?
  26. May a bargaining unit opt-out of paid sick leave in a collective bargaining agreement? 

Within the coming months, the NY City Council must clarify what employers need to do and prepare for.  The outstanding issues are many and the answers are few.  

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, offers innovative solutions to the legal and business challenges presented by today's evolving global markets. Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, offers innovative solutions to the legal and business challenges presented by today's evolving global markets. The Duane Morris Institute provides training workshops for HR professionals, in-house counsel, benefits administrators and senior managers.

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