New York State’s 2021 Enacted Budget Expands Employees’ Entitlement to Sick Leave

Earlier this month, Governor Andrew Cuomo signed into law the fiscal budget for 2021. Under this law, all employers in New York State are required to provide employees with sick leave.

For employers in New York City and Westchester County, this law expands leave afforded to employees who are already entitled to leave under the New York City Paid Safe and Sick Leave Law and the Westchester County Earned Sick leave Law in 2021. Under these local laws, eligible employees are already entitled to up to 40 hours of paid leave annually, either on an accrual basis or by upfront granting.

Available Leave

Effective September 30, 2020, the New York Labor Law will entitle employees to accrued sick leave each calendar year which will vary in length and pay based on the employers’ size:

Employers with less than five employees and a net income of less than $1 million in the prior tax year will be required to provide employees with at least 40 hours of job-protected unpaid sick leave.
Employers with less than five employees and a net income of less than $1 million in the prior tax year or employers with five to 99 employees will be required to provide employees at least 40 hours of job-protected paid sick leave per year.
Employers with 100 or more employees will be required provide at least 56 hours of job-protected paid sick leave per year. Indeed, employers with more than 100 employees in both New York City and Westchester County must now provide an additional 16 hours of paid leave to their employees.

Any paid leave must be compensated at the employee’s regular rate of pay.

Accrual of Leave

Leave for New York State employees will accrue at a rate of one hour for every 30 hours worked. Alternatively, employers may opt to provide employees with a lump sum of sick leave at the beginning of each calendar year. Although leave begins to accrue as of September 30, 2020, employees will not be eligible to use said leave until January 1, 2021.

Use of Leave

At the start of 2021, employers throughout the state of New York must provide its employees with accrued leave for (1) an employee’s or his or her family member’s mental or physical illness, injury or health condition, or the diagnosis, care or preventative care, or treatment of same; or (2) absences from work, resulting from the employee or his or her family member being the victim of domestic violence, a family offense, a sexual offense, stalking, or human trafficking, to obtain services for same, to participate in planning or relocation, to meet with an attorney or social services provider for same, to file a complaint with local law enforcement or meet with the district attorney, to enroll children in a new school, or other necessary and related actions.

Employers may not request the disclosure of information relating to a mental or physical illness, injury, or health condition of such 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 providing sick leave.

Additionally, employers may set a reasonable increment to use sick leave not to exceed 4 hours.

Carryover of Leave

An employee may carryover leave from the prior calendar year. However, employers with less than four employees can restrict the amount of leave used by an employee to 40 hours per calendar year and employers with 100 or employees can restrict the amount of leave used by an employee to 56 hours per calendar year.

No Retaliation

Employees who take leave must be restored to his or her position held prior to taking leave with the same pay and benefits to which he or she was entitled.

Interplay with the Families First Coronavirus Act (FFCRA) or Existing Available Leave

Employers do not need to provide employees with additional leave if their sick or paid time off policies meet or exceed the amounts as required under the law and satisfies the accrual, use and carryover requirements set forth above. For unionized employees, in lieu of providing sick leave as expressly provided for under the law, collective bargaining agreements entered into on or before September 30, 2020 may provide for a comparable benefit in the form of leave, compensation, other employee benefits provided that “the agreement[s] specifically acknowledge the provisions” of the law.

Moreover, the law does not preempt local or city laws. Therefore, New York employers should also be aware of other additional restrictions and applications of local law, including but not limited to the New York City Paid Safe and Sick Leave Law and the Westchester County Earned Sick leave Law.

Note that leave under the FFCRA is only available to employees from April 1, 2020 to December 31, 2020 and does not carry over into the next calendar year. Under the FY 2021 budget, employees are not eligible to take leave until the beginning of 2021.