Thursday October 22, 2020
On September 28, 2020, New York Mayor Bill de Blasio signed the Council Int. No. 2032-A, which amended the New York Safe and Sick Time Act (“NYCESSTA”) to comply with the recently updated New York State Sick Leave Act (“NYSSL”), which was amended on Sept. Effective September 20, 2020 Our previous New York Bulletin contains a statewide law on paid sick leave.
Most of the recent changes are aimed at aligning NYCESSTA with NYSSLL. In addition, the amendments to New York Law place several additional requirements and potential legal liability on employers.
I. Changes to bring the city law in line with the state law
Certain changes to the NYCESSTA are intended to bring consistency between city and state law and include the following changes:
Sick leave amount
- Employers with 4 or fewer employees in a calendar year and net income of $ 1 million or less in the previous tax year must grant each employee at least 40 hours of unpaid sick leave per calendar year.
- Employers with 4 or fewer employees in a calendar year and net income greater than $ 1 million in the previous tax year must give each employee at least 40 hours of paid sick leave per calendar year.
- Employers with 5 to 99 employees in a calendar year must grant each employee at least 40 hours of paid sick leave per calendar year.
- Employers with 100 or more employees in a calendar year must grant each employee at least 56 hours of paid sick leave per calendar year.
Unused vacation / procrastination
An employee can transfer unused sick leave to the following calendar year as follows:
- For employers with 99 or fewer employees, up to 40 hours of unused sick leave can be carried over to the following calendar year.
- For employers with 100 or more employees, up to 56 hours of unused sick leave can be carried over to the following calendar year.
Employees can be on sick leave from September 30, 2020 from the above schedule and can take any newly provided sick leave from January 1, 2021. In addition, from January 1, 2021, there will no longer be a waiting period to use the accrued sick leave. Previously, newly hired employees had to wait 120 days before they could claim an accrued sick leave.
Domestic workers are defined in Section 2 (16) of the New York Labor Code and include those caring for a child, accompanying a sick, convalescent, or elderly person, doing housekeeping, or performing domestic service in a home or dormitory. The amended NYCESSTA eliminates delayed demarcation times and reduced vacation times for domestic workers. Employers must now grant domestic workers 40 hours of paid sick leave.
II. Additional Changes to NYCESSTA
The changes place several additional requirements on employers in New York City:
Employers must now document the amount of sick leave that an employee accumulates and uses, as well as the total amount of the employee’s accrued sick leave. Documentation should be included on a pay slip or other written notice provided to the employee during each pay period.
Medical documentation costs
In the event of an absence of more than three consecutive working days with sick leave, an employer can request appropriate documentation of the necessity of the absence and use of sick leave. If a healthcare provider charges an employee a fee for documentation, the employer must reimburse the employee for that fee.
Notice of employee rights
Employers must prominently publish a notice about employee rights in an area accessible to employees (e.g. dining room, locker room, etc.) at the employer’s place of business. The Workers Rights Notice (which has not yet been issued by the New York Department of Consumer and Workers Protection, but will eventually be issued) must also be made available to each worker at the beginning of the employment relationship. For employees who were employed prior to the entry into force of these provisions, such notification should be made within 30 days of the entry into force of the law.
The amendments expand the definition of retaliation under NYCESSTA and prohibit any adverse act against an employee that punishes or discourages an employee for exercising or attempting to exercise rights, or that interferes with the exercise of rights under the NYCESSTA . Adverse acts include, but are not limited to: threats, intimidation, discipline, dismissal, demotion, suspension, harassment, discrimination, reduction in working hours or pay, informing another employer about the exercise of an employee’s rights, blacklisting, maintaining or using a Penalty Absence Control Policies and Measures Related to Perceived Immigrant Status or Work Permits. An employee does not have to explicitly refer to a provision of this chapter or to implementing regulations in order to be protected from adverse measures. Protection applies to anyone who falsely, but in good faith, asserts their rights or claims a violation of NYCESSTA.
Civil action instituted under the NYCESSTA may result in a civil penalty not exceeding US $ 15,000 if the employer is found to have committed a pattern or practice of violations of the NYCESSTA. Any civil penalty reclaimed is paid into the city’s general fund. Employers may also be required to pay up to $ 500 to any employee who has been denied sick leave in violation of NYCESSTA.