Following up on the recent changes to New York law that require New York employers of all sizes to provide employees with a certain amount of paid or unpaid sick leave, New York City recently amended its own Paid Safe and Sick Leave Law (“NYC PSSL”) to be more consistent with the accrual and usage requirements imposed by the newly-implemented New York State Paid Sick Leave Law (“NYS PSL”). This memorandum details the pertinent changes to NYC PSSL, which took effect on September 30, 2020. Employers operating in NYC should review and update their policies to verify compliance with any applicable requirements.
Increase in Required Benefits Based on Employer Size
The amount of safe/sick leave employers in NYC must provide for their employees has changed, and in some cases increased, to be aligned with the requirements of NYS PSL, in various amounts based on the employer’s size and net income in a given calendar year, as set forth below:
This is an expansion of the previous safe/sick leave requirements, as employers with four or fewer employees had until now been exempt from coverage. Although not covered by the NYC PSSL, employers of 4 or fewer employees in any calendar year and a net income of less than $1 million in the previous tax year must still provide employees with 40 hours of unpaid sick leave in each calendar year under the NYS PSL.
Removal of the Requirement that an Employee Must Work 80 Hours to Be Eligible
The NYC PSSL removed the requirement that employees work 80 hours within NYC as a threshold for eligibility. Now, any person employed within NYC on a full-time or part-time basis for any length of time by a qualifying employer is eligible to accrue safe/sick leave under the NYC PSSL.
New Effective Dates for Accrual and Use of Safe/Sick Leave
Employees may begin to accrue any newly provided safe/sick leave either on their first day of employment or September 30, 2020, whichever is later. As before, employees accrue safe/sick leave at a rate of not less than 1 hour of leave for every 30 hours worked.
Employees may begin using any newly accrued or expanded safe/sick leave under the NYC PSSL on or after January 1, 2021, similar to under the NYS PSL. As before, rather than using an accrual system, employers may fulfill their obligation under the law by front-loading the full amount of safe/sick leave in a lump sum at the start of each calendar year.
Removal of 120-Day Waiting Period Requirement
The NYC PSSL has been revised to remove the prior 120-day waiting period for use of accrued sick leave. After January 1, 2021, employees, even newly hired employees, may begin using safe/sick leave as soon as it is accrued or otherwise available.
Modification of Safe/Sick Leave Carryover Rules
For employers with fewer than 100 employees, up to 40 hours of unused safe/sick leave may be carried over into the following calendar year; such employers may limit the use of safe/sick leave to 40 hours per calendar year.
For employers with 100 or more employees, up to 56 hours of unused safe/sick leave may be carried over into the following calendar year; such employers may limit the use of safe/sick leave to 56 hours per calendar year.
Employers are not required to allow employees to carry over safe/sick leave if either: (1) the employer pays employees for accrued but unused safe/sick leave at the end of the calendar year and provides the employee with the maximum number of hours on the first day of the new calendar year, or (2) the employer frontloaded the maximum number of hours of safe/sick leave at the beginning of the calendar year and will frontload the maximum number of hours of safe/sick leave on the first day of the new calendar year. As before, the NYC PSSL does not require employers to pay employees for accrued, unused safe/sick leave upon termination, resignation, retirement, or other separation from employment.
New Requirement that Employers Reimburse Costs for Obtaining Medical Certification
As before, employers may not require an employee to provide a medical or other third-party certification to verify the need to use safe/sick leave unless the employee has been out for more than three consecutive days. If the employer requires that an employee submit documentation verifying the need to use safe/sick time, the employer must now reimburse the employee for all fees charged by a healthcare provider or other service provider for the provision of such documentation.
New Requirement that Employers Give Notice of Sick/Safe Leave Balance Each Pay Period
Employers are now required to note on each employee pay statement or a separate writing provided to the employee each pay period: (1) the amount of safe/sick leave accrued and used by the employee during the pay period, and (2) the employee’s total balance of safe/sick and leave. Although this provision took effect on September 30, 2020, the Department of Consumer and Worker Protection (“DCWP”) has advised that employers that cannot meet this documentation requirement, but are working in good faith on implementation, will have up to November 30, 2020 to ensure compliance without penalty.
Updated Notice to Employees of Their Rights under NYC PSSL
Employers are also required to post an updated “Notice of Employee Rights: Safe and Sick Leave” in the workplace in an area that is visible and accessible to employees by January 1, 2021. Employers with 100 or more employees must also provide a copy of the updated Notice to current employees by January 1, 2021. All employers must provide a copy of the updated Notice to newly hired employees at the time of hire and when employees’ rights change.
The updated Notice is available here:
https://www1.nyc.gov/assets/dca/downloads/pdf/about/PaidSafeSickLeave-MandatoryNotice-English.pdf
Employers should retain a signed copy of the updated Notice or an e-mail receipt to maintain a record that the Notice was distributed.
Expanded Enforcement and Retaliation Provisions
The amendment of the NYC PSSL expands the DCWP’s enforcement authority for violations of the law, including authorizing new subpoena and investigative powers, and permits the DCWP to initiate “pattern or practice” enforcement actions against employers. The amendment further clarifies prohibited retaliatory actions against an employee that might penalize or deter an employee from using safe/sick time, including an employee’s mistaken but good faith attempts to make such requests. The amendments also clarify the fines and penalties to be imposed for specific employer violations.
Recommendations for Employer Action
NYC employers should revisit the terms of their safe/sick leave policies to ensure compliance with both the NYC PSSL and NYS PSL. NYC employers should also post the updated Notice and distribute the updated Notice to current employees by no later than January 1, 2021. Further, employers should work with their payroll and human resources departments to ensure that pay statements provide the required information and that the employer has a mechanism to reimburse employees for the costs of any requested documentation.
Please contact us with any questions regarding the information contained in this memorandum.
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