On September 30th, the provisions of the New York Sick Leave Law (NYSSL) took effect. All employees began accruing sick leave as of September 30th; however, employees may not begin using the accrued sick leave until January 1, 2021. The new sick leave covers all employees. Full time, part time, seasonal, per-diem, and student workers will be eligible for sick leave. The law has different provisions depending on employer size (size is based on the previous year):
- For employers with four or fewer employees in any calendar year, each employee shall be provided with up to 40 hours of unpaid sick leave in each calendar year. This small employer must allow the time off, but the time is not paid.
- However, if the employer that employs four or fewer employees has a net income of greater than $1 million, the employer must allow 40 hours of paid sick leave in each calendar year.
- For employers with between five and 99 employees in any calendar year, each employee shall be provided with up to 40 hours of paid sick leave in each calendar year.
- For employers with 100 or more employees in any calendar year, each employee shall be provided with up to 56 hours of paid sick leave each calendar year.
The three most important aspects of NYSSL are counting employees’ sick time earned, the carryover provision and usage of sick leave.
NYSSL can be accrued or allotted. If using the accrual method, the accrual begins September 30th at a rate of one hour per 30 hours worked, up to a maximum of 40 or 56 hours depending on the employer size. The accrual method works well for employers with expected turnover, i.e., part time, seasonal, per-diem, and student workers.
The first challenge is having a reliable method of collecting hours worked. A good time and attendance system must be able to log in one hour of sick leave for every 30 hours worked by all employees and stop the accrual when the maximum is reached.
The employer can also simply allot a specific amount of paid sick leave starting January 1, 2021, as long as it meets or exceeds the maximums in the law.
Also, many employers only provide sick leave allotments to full-time employees. They will need to develop allotments for part time, seasonal, per-diem, and student workers.
The second challenge is the carryover provision of NYSSL. Until now, employers were not mandated to carry over any form of paid time off. Now, employers must allow the carryover of NYSSL at the end of the year. The only silver lining is the carryover cannot exceed the annual NYSSL limits.
The carryover provision is where employers should expect the most questions. If an employee doesn’t take any sick days in a year, the maximum carries over to the new year. They would not be able to accrue any more leave because they’re already at the max.
NYSSL can be used as soon as it is earned. Starting January 1, 2021, no waiting period is allowed. Employers can set a minimum usage of 4 hours and balances are not paid upon separation. NYSSL can be used for:
- Employee’s mental or physical illness, or injury, or diagnosis, care, treatment, or preventive care for employee’s mental or physical illness or injury.
- Covered family member’s mental or physical illness or injury or diagnosis, care, treatment, or preventive care for a covered family member’s mental or physical illness or injury.
- Absences related to employee’s status as a victim of domestic violence, family offense, sexual offense, stalking, or human trafficking; or
- Absences related to a covered family member’s status as a victim of domestic violence, family offense, sexual offense, stalking, or human trafficking.
This is job-guaranteed sick leave, which means employers should prohibit discrimination, harassment and retaliation for employees who use sick leave.
The New York State Department of Labor has published NYS Paid Sick Leave FAQs to help answer your questions.