New York Nonprofit Employees Get Additional Paid Sick and Safe Leave Rights, Part 1

An FAQ explaining paid sick/safe leave laws in New York State and City. 

New York State’s Paid Sick/Safe Leave Law (“NYSPSSL”) took effect on September 30, 2020.  NYSPSSL, which amends New York State Labor Law (Section 196-b), requires all employers in New York State (nonprofit and for-profit organizations, alike)—regardless of size—to provide employees with a minimum of 40 hours of paid or unpaid job-protected sick or safe leave or 56 paid hours per calendar year—depending on the employer’s size and net revenue—for employee medical and/or certain safety-related reasons.

New York City amended its paid sick and safe leave law known as the Earned Safe and Sick Time Act (“ESSTA”) in response to NYSPSSL, effective September 30th too.

Below is an FAQ explaining more about the New York State and City paid sick/safe leave laws.  (This new State law is in addition to COVID-19 leave provided under New York State’s Emergency COVID-19 Quarantine Paid Sick Leave).

When may employees start using their paid leave?

Although NYSPSSL took effect on September 30, 2020 and employees started accruing leave on that date, employees are not eligible to take the NYSPSSL leave until January 1, 2021.^[1]

How much leave must be provided under NYSPSSL and ESSTA?

Under NYSPSSL and the newly amended ESSTA, the amount of leave required to be provided now depends on number of employees and/or net revenue of the organization:

• Employers with four or fewer employees and net revenue of less than $1 million in the prior calendar year: Up to 40 hours of unpaid sick/safe leave in each calendar year
• Employers with four or fewer employees and net revenue of $1 million or more in prior calendar year: Up to 40 hours of paid sick/safe leave in each calendar year*
• Employers with between 5-99 employees in any calendar year: Up to 40 hours of paid sick/safe leave in each calendar year; and
• Employers with 100 or more employees in any calendar year: Up to 56 hours of paid sick/safe leave each calendar year.*

* Note, however, that under ESSTA, the provisions with asterisks above do not take effect until January 1, 2021.

What can the NYSPSSL leave be used for?

Sick/safe leave may be used for both medical and emergency safe reasons.  Specifically, leave may be taken for:

(1) a mental or physical illness, injury, or health condition of an employee or their employee’s family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that such employee requests such leave;

(2) the diagnosis, care, or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventive care for, such employee or such employee’s family member; or

(3) for an absence from work when the employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking (ESSTA also allows for this leave for an employee or employee’s family member because of unwanted sexual contact in addition to these reasons):

(a) to get services from a domestic violence shelter, rape crisis center, or other services program;

(b) to participate in safety planning, relocate, or take other actions to increase the safety of the employee or their family members;

(c) to meet with an attorney or other social services provider to get information and advice on, and prepare for or participate in any criminal or civil proceeding;

(d) to file a complaint or domestic incident report with law enforcement;

(e) to meet with a district attorney’s office;

(f) to enroll children in a new school; or

(g) to take any other actions necessary to ensure the health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.

ESSTA also allows the use of such leave when an employee’s job or child’s school closes due to a public health emergency.

At what rate does paid sick/safe leave accrue?

Just as with leave under ESSTA, under NYSPSSL, employees accrue sick/safe leave at a rate of not less than one hour per every 30 hours worked. Employers may set a minimum amount of safe and sick leave, not to exceed four (4) hours, that employees must use in a day.

May an employer front-load the leave at the beginning of a calendar year rather than require employers to accrue the leave?

Yes, under both NYSPSSL and ESSTA, an employer may elect to provide its employees with the total amount of sick/safe leave at the beginning of the calendar year, provided, however that the employer may not reduce or revoke any such sick leave based on the number of hours actually worked by an employee during the calendar year.

May an employer require an employee to provide documentation about the nature of the employee’s illness as a condition of providing sick leave?

No, under both NYSPSSL and ESSTA, an employer may not require the disclosure of confidential information relating to an employee’s mental or physical illness, injury, or health condition or that of a family member, or “information relating to absence from work” due to domestic violence, a sexual offense, stalking, or human trafficking, as a condition of providing sick/safe leave.

But under ESSTA, an employer with employees in New York City is permitted to require an employee to provide documentation confirming the amount of sick/safe leave used and whether the leave was used for an authorized purpose under the law, after an employee uses more than three (3) consecutive workdays as sick/safe leave.  Under the ESSTA, employers may not, however, require that the documentation specify the reason for safe or sick leave. NYC’s DCWP—which enforces New York City’s law—advises employees not to include details of their medical or personal situation in the documentation provided to the employer.

Does the law require employers to allow carry over unused sick/safe leave?

Yes, under both NYSPSSL and ESSTA, nonprofit organizations must allow their employees to carry over unused sick/safe leave unless the leave is front-loaded at the beginning of the calendar year, with the following disclaimers:

• An employer with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year; and
• An employer with 100 or more employees may limit the use of sick leave to 56 hours per calendar year. Employers are not required to pay an employee for unused sick/safe leave upon such employee’s termination, resignation, retirement, or other separation from employment.

If the leave is front-loaded at the beginning of the calendar year fully available for use without the need to accrue it, however, there would not be a reason for an employee to carry it over.

Also see:

New York Nonprofit Employees Get Additional Paid Sick and Safe Leave Rights, Part 2

Notes:

[1] Notably, New York City’s Earned Safe and Sick Time Act amendment allows all covered employees (full-time and part-time) to use their paid sick/safe leave immediately upon accrual.  Previously, employees were only covered if they worked more than 80 hours in a calendar year for that employer and then needed to wait 120 days after starting employment before being able to use accrued leave. This change conforms to the NYSPSSL.

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About the Author

Lisa Brauner, Esq.

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Lisa Brauner, Esq. (she/her/hers) is an employment law partner and Head of the Employment Law practice at the law firm of Perlman & Perlman LLP, a law firm headquartered in NYC and dedicated to the nonprofit sector. Lisa focuses in the area of employment law, specifically advising and representing nonprofit organizations in workplace law-related matters. Lisa counsels and advises employers in many aspects of the employment relationship, including avoidance of litigation, wage/hour compliance, preventing unlawful discrimination, harassment, and retaliation, reductions-in-force, lawful hiring and terminations, disability, pregnancy and religious reasonable accommodation issues, as well as compliance with federal, state and local laws and regulations. Lisa has extensive experience representing and defending employers in court, including successfully first-chairing both jury and bench trials, and responding to EEOC and other governmental agency charges and audits.

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