The new mandatory New York State Sick Leave Law (NYSSLL) goes into effect on September 30, 2020. First enacted in April 2020, the law requires New York employers of all sizes to provide employees with the right to accrue varying amounts of either sick or unpaid sick leave depending on employer size and income. Employees may be restricted from using sick leave until January 1, 2021. Here's what you need to know. 

Amount of Sick Leave Available

  • employers with 4 or fewer employees 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 between 5 and 99 employees and employers with 4 or fewer employees and a net income of greater than $1 million in the prior tax year must provide each employee with up to 40 hours of paid sick leave per year.
  • employers with 100 or more employees will provide up to 56 hours of paid sick leave per year.

Employees must accrue sick leave at a rate of at least 1 hour for every 30 hours worked, unless an employer opts to frontload sick leave and provide the full amount in a lump sum at the beginning of each year. 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. Unused sick leave does not need to be paid out at the end of the year or the end of employment.

Covered Reasons for Taking Leave

Covered reasons for taking sick leave are similar to those provided under the New York City Earned Safe and Sick Time Act and the Westchester County Earned Sick Leave Law and include:

  • 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
  • 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

Use of Sick Leave

Employees may use sick leave for any Covered Reason. Employers may set a reasonable minimum daily increment for the use of sick leave of no greater than four (4) hours. Upon the oral or written request of an employee, an employer will be required to provide a summary of the amounts of sick leave accrued and used by the employee in the current calendar year and/or any previous calendar year. Such information must be provided to the employee within three business days of a request. Employees have a right to reinstatement and protections against retaliation for exercising rights under the NYSSLL.

Interplay with Existing Leave Policies 

Employers need not provide additional leave if they already maintain a sick leave or other paid leave policy that provides employees with the same or greater amount of leave as required under the law and which otherwise satisfies the law's accrual, carryover, and usage requirements.  

The NYSSLL expressly states that it does not preempt or diminish the existing New York City or Westchester County paid sick leave laws, and employers must continue to provide employees with leave that meets or exceeds the requirements of both the statewide and local laws. We continue to await regulations or other information as to how the NYSSLL will interact with the NYC and Westchester County laws, as well as the New York Emergency Sick Leave Law, which provides different amounts of paid or unpaid sick leave for COVID-19 related quarantine absences from work.  

Recordkeeping and Other Requirements

Employers will be required to keep contemporaneous records showing the amount of sick leave provided to each employee under the law. Such records must be maintained for a minimum of six (6) years.

Next Steps

Employers who are not already tracking sick leave should prepare to begin tracking accruals and use of sick leave. All New York employers should review and revise their current sick leave laws to ensure compliance with the NYSSLL as well as its interaction with other leave policies.

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.