2021 New York Paid Sick Leave (NYPSL)
Below is a summary of the details and guidance regarding New York’s new paid sick leave law. As of now, there is little formal guidance outside of the statutory language itself. However, as the effective date approaches, we expect regulatory or other guidance from the New York Department of Labor to be issued in the weeks or months ahead.
On April 3, 2020, Governor Cuomo signed into law a statewide paid sick leave law (“NYPSL”) that largely mimics the previously enacted paid sick leave in the New York City Earned Safe and Sick Time Act (“ESSTA”).[1] The NYPSL is in addition to the COVID-19 specific emergency paid sick leave enacted at the city, state, and federal level earlier this year. The NYPSL allows employees to begin accruing sick leave as of September 30, 2020 (or as of their hire date, if later), and using such sick leave as of January 1, 2021. Details of the law are summarized below.[2]
Amount of Leave Available
The Law, which covers all private sector employers in the State of New York, gives employees at least 40 hours of paid or unpaid sick leave up to a maximum of 56 paid hours, depending on the size and net income of the employer. Leave entitlement is explained in the following table:
| Employer Size | Minimum Leave Entitlement |
| 4 or Fewer Employees in any calendar year and net income below $1 million in the prior tax year | 40 hours (5 days) unpaid sick leave per year |
| 4 or Fewer Employees in any calendar year and net income above $1 million in the prior tax year | 40 hours (5 days) paid sick leave per year |
| Between 5 and 99 employees in any calendar year | 40 hours (5 days) paid sick leave per year |
| 100+ employees in any calendar year | 56 hours (7 days) paid sick leave per year |
Employers must determine the number of employees based on the calendar year (January 1 through December 31). Employers may base the leave usage on either the calendar year (January 1 through December 31) or any other regular and consecutive 12-month period set by the employer.
Important Definitions
- Covered Family Members are an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent or the child or parent of an employee’s spouse or domestic partner.
- “Parent” is “a biological, foster, step- or adoptive parent, or a legal guardian of an employee, or a person who stood in loco parentis when the employee was a minor child.”
- “Child” is a biological, adopted or foster child, a legal ward or a child of an employee standing in loco parentis.
- “Grandparent” and “Grandchild” are not defined in the NYPSL. The regulators will likely choose the same definitions as NY Paid Family Leave, which essentially define a “Grandparent” to mean a “Parent’s Parent” and a Grandchild to mean a “Child’s Child.” This type of definition has some odd results, such as a Grandparent relationship including a relationship as attenuated as a step-grandparent-in-law. It remains to be seen if the NYPSL definitions are this broad.
Accrual Rate and Carryover
The Law requires that employees accrue sick leave of at the rate of least 1 hour of leave for every 30 hours worked (which is the same as the accrual rate in the ESSTA). Employers may also “frontload” the full leave entitlement (from the prior chart) as a lump sum to the employee’s leave bank at the beginning of the year in lieu of calculating accruals by time worked. Employers who choose to frontload paid leave in this manner may not later reduce available leave if an employee does not work a “sufficient” amount had the leave been based on hours worked.
Employers may require employees to use at least 4 hours of sick leave as a required minimum increment for any absence. Employers must pay employees on leave at the employee’s regular rate of pay (or the minimum wage, whichever is greater).
Employees are entitled to carryover their unused sick leave to the following year. However, employers with fewer than 100 employees may cap the employee’s annual usage for the next year at 40 hours notwithstanding the carryover, and employers with 100 or more employees may cap usage for the next year at 56 hours. This means that most employees won’t get the benefit of any carryover (unless their hours are reduced such that they would not otherwise have accrued the maximum annual allotment). Employers are not required to pay any unused sick leave upon separation or termination, so in most cases these carryovers will never be available or paid to employees.
Reasons for Sick Leave
Employees may use sick leave for any of the following reasons:
- Mental or physical illness, injury or health condition of an employee or the employee’s family member (regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that the employee requests leave);
- Diagnosis, care or treatment of a mental or physical illness injury, or health condition of, or the need for medical diagnosis of, or preventative care for, the employee or employee’s family member; or
- Absence from work due to any of the following reasons when an employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking or human trafficking:
- To obtain services from a domestic violence shelter, rape crisis center, or other services program;
- To participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members;
- To meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding;
- To file a complaint or domestic incident report with law enforcement;
- To meet with a district attorney’s office;
- To enroll children in a new school; or
- 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.
An employee who was the perpetrator of domestic violence, a family offense, sexual offense, stalking, or human trafficking is not eligible for NYPSL, notwithstanding any family relationship to a victim.
Posting and Recordkeeping
New York Labor Law requires employers to make employees aware of any sick leave policies. Employers must publicly post their policy or notify their employees in writing as to their specific policy.[3] Employers must maintain records showing the amount of sick leave provided to each employee for a minimum of six (6) years. Upon the oral or written request of an employee, an employer must provide a summary of the amounts of sick leave accrued and used by such employee in the current calendar year and / or any previous calendar year within three (3) business days of such request.
An employer may not require an employee to disclose confidential information relating to a mental or physical illness, injury, or health condition of the employee or such employee’s family member, or information relating to absence from work due to domestic violence, a sexual offense, stalking, or human trafficking, as a condition of using NYPSL leave (e.g., an employer may not require records disclosing the specific diagnosis when substantiating mental or physical illness, injury or health condition of the employee or the employee’s family member). The same requirement applies under ESSTA, which further clarifies that the employer may still require a note signed by a licensed health care provider for sick leave or documentation from a social service provider, legal service provider, member of the clergy, or notarized letter written by the employee indicating the need for safe leave. We are optimistic that NYPSL will follow suit and permit the employer to ask for documentation similar to that permitted under ESSTA.
At this time, it is not clear what other rules may apply to requesting documentation of the need for NYPSL leave from an employee. Under ESSTA, employers cannot require documentation unless an absence exceeds three (3) consecutive days; we anticipate the same rule may ultimately apply here.
Job Protection and Enforcement
Employees must be reinstated to their prior position with the same terms and conditions of employment following NYPSL. Employers may not discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee who exercises his or her rights to request and use sick leave.
Employers who violate these provision may be subject to civil penalties. Neither the New York state legislature nor the New York Department of Labor has identified specific penalties for non-compliance with the NYPSL.
Interaction with New York Paid Family Leave
Enacted in 2016,New York State Paid Family Leave (“NYPFL”) provides employees of all New York state employers with job-protected, paid time off to: (1) bond with a new child, (2) care for a close relative with a Serious Health Condition, or (3) certain military exigencies. In 2020, employees taking NYPFL receive 60% of their average weekly wage, up to a cap of 60% of the current Statewide Average Weekly Wage of $1,401.17, for up to 10 weeks (67% for up to 12 weeks in 2021). The maximum weekly benefit for 2020 is $840.70.[4] NYPFL also protects eligible employees from discrimination or retaliation for taking NYPFL and provides that employers must maintain health insurance to employees on leave.[5] Benefits are funded through insurance paid for by employee wage deductions.
If an employee’s absence qualifies under both NYPSL and NYPFL (such as in the case of a family member’s illness or injury), the employee may choose which form of leave to take. Since NYPSL is paid at 100% of the regular rate, and NYPFL at only 67% (in 2021), many employees may choose to use NYPSL first. Where the employee chooses to use NYPSL for a NYPFL-qualifying reason, we expect that the employer could be reimbursed by the NYPFL program for a portion of the leave payment (just like the employer could for any other type of accrued leave usage, such as vacation), but this could be modified or clarified in future NYPSL regulations.
If permitted by the employer’s NYPFL policy, the employee could instead use NYPSL leave to “top-off” NYPFL payments, thus allowing the employee to receive their full pay for all or part of the NYPFL leave without depleting the NYPSL bank as quickly (i.e., with NYPFL paying the employee first, and the balance paid by NYPSL out of the employee’s leave bank). However, an employee cannot receive more than their full wages while receiving Paid Family Leave benefits.[6]
Existing Company Policies and Other Laws
New York State has enacted emergency paid sick leave specifically for leave taken due to COVID-19, which is in addition to the NYPSL allotment. The NYPSL grants a broader basis for leave, but the laws may interact depending on the nature of leave sought.[7]
Nothing in NYPSL prohibits or prevents an employer from providing an amount of sick leave, paid or unpaid, which is in excess of the NYPSL requirements, or from adopting a paid leave policy that provides additional benefits to employees. An employer is not required to provide any additional sick leave under NYPSL if the employer has adopted a sick leave policy or time off policy that provides employees with an amount of leave which meets or exceeds the requirements set forth in NYPSL and satisfies its accrual, carryover, and other requirements.
Employees may use NYPSL leave to receive pay during a short-term disability waiting period.
The NYPSL does not preempt or diminish existing local sick pay laws that may require greater benefits, which were grandfathered. Going forward, only cities with a million or more residents may pass sick pay ordinances requiring additional leave time or rules for use.
Employers subject to a collective bargaining agreement may negotiate alternative options to provide comparable benefits with their union(s), provided that the CBA specifically acknowledges NYPSL.
Additional Guidance
The New York Department of Labor will likely issue guidance at some point in 2020, but has not as of the date of this summary. Employers should take this time to review existing policies, if applicable, to determine if changes are required going forward, and start tracking NYPSL accruals in late September 2020.
More information can also be found in Part J of the New York FY 2021 Budget, pages 41-44, https://legislation.nysenate.gov/pdf/bills/2019/s7506b.
[1] ESSTA requires employers with five or more employees who work more than 80 hours per calendar year in NYC to provide up to 40 hours a year of paid safe and sick leave to employees for specified reasons. See https://www1.nyc.gov/assets/dca/downloads/pdf/about/PaidSafeSickLeave-MandatoryNotice-English.pdf for more information. Westchester County also adopted very similar protections which took effect in 2019. See https://humanrights.westchestergov.com/resources/earned-sick-leave-law.
[2] Full text of the bill can be found here: https://legislation.nysenate.gov/pdf/bills/2019/s7506b.
[3] See New York State Labor Law Section 195.5; see also https://labor.ny.gov/formsdocs/wp/LS606.pdf.
[4] See https://paidfamilyleave.ny.gov/.
[5] See https://paidfamilyleave.ny.gov/.
[6]See https://paidfamilyleave.ny.gov/paid-family-leave-and-other-benefits.
[7] For more information on emergency sick and family leave, see https://paidfamilyleave.ny.gov/COVID19.