Joshua Zuckerberg

On March 20, 2014, Mayor Bill de Blasio signed into law an expansion to the Earned Sick Time Act that extends paid sick leave to more New York City employees. Like the original law, this expansion to the law goes into effect on April 1, 2014.

What the Law Now Requires

The original law mandated up to 40 hours of paid sick leave each calendar year to each employee for businesses employing 20 or more employees. The revised Act now requires all companies with 5 or more employees to provide their employees with up to 40 hours of paid sick leave per year. Employers with fewer than 5 employees must also provide up to 40 hour of unpaid sick leave annually. Domestic workers receive up to 2 paid sick days annually (this is in addition to the 3 paid rest days required under the New York State Labor Law). There is no longer an exemption to the paid sick leave law for the manufacturing sector.

Sick leave accrues at the rate of one hour for every 30 hours worked, up to the maximum of 40 hours of sick leave per year. Employees can start using their accrued sick leave on July 30, 2014 or 120 days after they commence employment, whichever is later. Paid sick leave may be carried over from a prior year, but an employer does not have to pay for more than 40 hours of sick leave in a calendar year.

Under the Act, paid sick leave may be used for an absence due to an employee’s own health condition, to care for a sick or injured family member, the closure of the employer’s business due to a public health emergency, or for the care of a child due to a school closure during a public health emergency. According to the Department of Consumer Affairs (“DCA”), the following are acceptable reasons to use sick leave:

• You have a mental or physical illness, injury, or health condition; you need to get a medical diagnosis, care, or treatment of your mental or physical illness, injury, or condition; you need to get preventive medical care.
• You must care for a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition, or who needs preventive medical care.
• Your employer's business closes due to a public health emergency or you need to care for a child whose school or child care provider closed due to a public health emergency.

Under the original law, a “family member” included a spouse, domestic partner, parents and children. The revised Act now adds grandparents and siblings, including a half, adopted or step-sibling, to the definition of “family member.”

To take paid sick leave, an employee does not need to provide a health provider’s note to his or her employer, unless the employee will be absent for more than 3 consecutive days. The note by the health care provider need not specify the medical reason for the sick leave. However, an employer may require an employee to confirm, in writing, that the paid or unpaid time off taken was for a valid reason under the Act.

Existing Paid Time Off Policies and Collective Bargaining Agreements

If an employer possesses an existing paid time off policy which provides at least 40 hours of paid time off for the reasons required by the Act, the employer is not required to provide any additional paid sick leave to employees. Employers should review and revise their paid time off and paid sick leave policies to ensure that their paid time off policies conform to the revised Act’s requirements.

Employees covered by a collective bargaining agreement (“CBA”) are not covered by the Act, if the CBA explicitly waives coverage by the law and provides for paid time off. In the construction and grocery industry, the CBA need not provide for paid time off.

Notices and Record-keeping

All covered employers must provide written notice of the Act to new employees at the commencement of employment and to existing employees by May 1, 2014. The notice must include information concerning: (1) the accrual and use of sick leave, (2) the employer’s calendar year, (3) the right to be free of retaliation, and (4) the right to file a complaint. The notice should be issued in English and the employee’s primary language, if the DCA has created a notice in that language. The required notice can be found at DCA’s website at the following link: www.nyc.gov/PaidSickLeave.

Employers must maintain records documenting compliance with the law for at least three years. Any health related information must be kept confidential unless the employee permits disclosure or another law mandates it.

Complaint and Penalties

Employee complaints of violations of the Act may be filed with the DCA, which will conduct an investigation and attempt to mediate the complaint. For violations of the Act, the DCA’s Adjudication Tribunal can order the payment of damages to the employee, including compensation for lost wages or employment, and other penalties as follows:

• The greater of $250 or three times the wages that should have been paid if the employee did not receive paid sick leave.
• $500 for each time an employee was unlawfully denied requested sick leave
• Lost wages and benefits, $500 and equitable relief if an employee was retaliated against (not including termination) for taking sick leave.
• Lost wages benefits, $2,500 and equitable relief if an employee was terminated for taking sick leave.

In addition, the DCA may levy civil penalties for violation of the Act of up to $500 for a first violation, $750 for a second violation, $1,000 for subsequent violations, and up to $50 for each employee not given the required notice of rights.

Employers with fewer than 20 employees and those in the manufacturing sector will have a six-month grace period to October 1, 2014 to become fully compliant with the Act before civil penalties may be assessed.

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