New York City Council Passes the Earned Sick Time Act

As expected, the New York City Council recently voted to override Mayor Bloomberg’s veto and pass the New York City Earned Sick Time Act, which will require almost all New York City private-sector employers to provide sick leave to employees who are employed for more than 80 hours in a calendar year.

The Act’s effective date still is uncertain as it is tied to the New York Coincident Economic Index level. Assuming the Index reaches the specified level as of December 16, 2013, the Act’s effective date will be April 1, 2014. If the Index does not reach the specified level at that time, then the effective date will be delayed until the Index reaches the specified level.

Upon enactment, covered employers with 20 or more employees will be required to provide paid sick leave to employees. Eighteen months after enactment, employers with 15 or more employees will have to provide paid sick leave. Finally, employers who employ less than the foregoing number of employees still must provide their employees with sick leave, but the leave may be unpaid.

Under the Act, covered employees may take sick leave for:

1. the employee's mental or physical illness, injury or health condition; need for medical diagnosis, care or treatment; or need for preventive medical care;
2. care of a family member needing such medical diagnosis, care, treatment or preventive medical treatment (family members include an employee's child, spouse, domestic partner or parent, or the child or parent of an employee's spouse or domestic partner); or
3. closure of the place of business due to a public health emergency (as declared by the commissioner of health and mental hygiene or the mayor) or to care for a child whose school or child care provider is closed due to a public health emergency.

Where practicable, an employee may be required to provide reasonable notice of the need to utilize sick leave. For leaves of more than three consecutive work days, reasonable documentation signed by a licensed health provider also may be required.

Non-domestic employees begin to accrue sick leave at the commencement of their employment (a different accrual method applies to domestic workers) and may utilize their accrued sick leave commencing as of their 120th day of employment. Leave under the Act will accrue at a minimum rate of one hour for every 30 hours worked, with a maximum leave accrual of 40 hours in any calendar year. Employees exempt from overtime requirements are presumed to work 40 hours per week for accrual purposes.

Unused sick time may be carried over into the following year, but the Act does not require an employer to provide more than 40 hours of paid sick time to an employee in any calendar year.

The Act imposes notice and record keeping requirements on employers. For example, at the commencement of employment, employers must provide employees with written notice of their right to sick leave under the Act. In addition, employers must maintain records documenting compliance with the Act for at least two years.

There is no private right of action under the Act. The Department of Consumer Affairs is charged with enforcing the Act, promulgating regulations and taking all other measures necessary to implement the Act.

Employees alleging a violation of the Act have 270 days from the date they knew, or should have known, of a violation to file a complaint with the Department. Violations are punishable by specified penalties per occurrence that include compensatory damages, fines, potential reinstatement of a discharged employee and other equitable relief.

Special rules apply to unionized employees covered by a collective bargaining agreement (“CBA”). First, regardless of the enactment date, the Act will not apply to such employees until the then current CBA expires. Second, the Act does not apply to employees in the construction or grocery industries who are covered by a CBA if the CBA expressly waives the Act’s provisions. Third, the Act does not apply to employees in other industries who are covered by a CBA if the CBA both expressly waives the Act’s provisions and provides comparable benefits in the form of days off.

Despite the uncertainty regarding when the Act will be enacted, all employers should immediately begin reviewing their policies and implementing processes to ensure compliance with the Act’s requirements. Please contact Robert Hawkins in our New York office, or your Buchanan relationship attorney, for more details and assistance in preparing for the Act’s enactment.