New York State has adopted Sick Leave requirements for employers to follow under NY Labor Law § 196-b. With the new rule having become effective on 12/22/21, employers and their HR teams need to get up to speed quickly. 

The new rule requires employers of 3 different categorical sizes to provide a minimum number of paid sick leave hours for employees depending on the size of the employer and its net income. 

The rule does the following:

• Establishes standards of how employees shall accrue sick leave at a rate of no less than 1 hour per every 30 hours worked; 
• Protects employees from having to disclose confidential health information to employers as a condition to taking sick leave; 
• Sets up conditions for employees carrying over unused sick leave over to the following calendar year; 
• Creates protections to prevent employers from retaliating/discriminating against employees for exercising his/her sick leave rights; 
• Requires employers to provide written records of sick leave accrual upon employee request; 
• Requires that employees returning from sick leave be restored to their position prior to the sick leave with the same pay & other terms / conditions of employment; & 
• Allows for collective bargaining agreements to be entered into that provides for paid sick leave. 

Before the rule became effective, employers commented and expressed their concerns, under the regulatory process, and the government's responses have clarified the following facts:

• Newer employees will abuse sick leave because the rules allow employees to immediately use sick leave upon accrual; 
• Carrying over unused sick leave days to following years is problematic (per DOL, employers may either: (1) give employees the option to voluntarily elect to use & receive payment for paid sick leave prior to the end of a calendar year or carry over unused sick leave; or (2) only allow employees to carry over unused sick leave);
• Conflicts can arise between sick leave requirements and other leave policies if not clarified in the employer's policy manual;
• Employee abuse systems need to be in place within an employer's policy manual or issues will arise; and
• Collective bargaining agreements need to be addressed to comply with the new rule.

This new sick leave rule will continue to raise concerns by employers and employees, but proactive employees with great policy manuals / collective bargaining agreements, which have been updated to reflect the new rule will win the day. Otherwise, there are going to be a lot of discrimination and retaliation claims when sick leave issues arise. 

To provide further incentive for people to get vaccinated, The New York State Department of Labor recently issued guidance permitting employees to use paid sick leave to recover from side effects of the COVID-19 vaccine. The New York State legislature previously passed a law entitling employees to paid leave to receive vaccinations.

New York State law requires employers with five or more employees (or net income of more than $1 million dollars) to provide 40 hours of annual paid sick leave to its employees. New York Labor Law Sec. 196-b permits employees to use sick leave "for mental or physical illness, injury, or health condition, regardless of whether it had been diagnosed or requires medical care at the time of the request for leave." 

The DOL clarified that Section 196-b requires employers to "honor the employee's desire to use accrued sick leave for recovery of any side effects of the COVID-19 vaccination." 

On September 28, 2020, Mayor De Blasio signed a bill into law amending the New York City Paid Sick and Safe Leave law to make it largely consistent with New York State's new Paid Sick Leave law. 

The law amends the New York City Paid Sick and Safe Leave law as follows:

Amount of Sick Leave: 

• Employers with 4 or fewer employees and a net income of over a million dollars are obligated to provide 40 hours of Paid Sick and Safe Leave per calendar year (no prior requirement);
• Employers with 5-99 employees (regardless of net income) are required to provide 40 hours per calendar year (unchanged);
• Employers with 100 or more employees are required to provide 56 hours of paid sick leave per calendar year (previously 40 hours). 

The amendments to the law take effect on September 30, 2020. Employers with employees in New York City should update their policies to avoid exposure.

• Every employer is required to provide employees with annual sick leave beginning on January 1, 2021; the amount and pay required is dependent on the number of employees:

• Employers with four (4) or fewer employees and a net income of less than one (1) million dollars in the prior tax year must provide up to forty (40) hours of unpaid sick leave per year. 
• Employers with 5-99 employees (and employers who have four (4) or fewer employees and a net income greater than one (1) million dollars) must provide up to forty (40) hours of paid sick leave per year. 
• Employers with a 100 or more employees must provide fifty-six (56) hours of paid sick leave per year.

• Sick leave accrues at a rate of one (1) hour for every thirty (30) hours worked. Employers may provide all of the required hours at the beginning of the year. 

• Employees may use sick leave under the following circumstances:

• Employee has a a mental or physical illness or injury (regardless if it has been diagnosed or employee requires medical care). 
• To care for a family member who has an illness or injury. 
• To take various precautionary measures; seek treatment or services as a result of the employee or family member being a victim of domestic violence. 

• Employers who deny employees sick leave or retaliate against an employee for taking sick leave may be liable for substantial damages including but not limited to: back pay, front pay, attorneys' fees, civil penalties and liquidated damages up to $20,000.

• The employee is subject to federal, state or local quarantine as a result of the Coronavirus;
• The employee has been advised by a health care provide to self-quarantine as a result of the Coronavirus;
•  The employee is experiencing symptoms of the Coronavirus and is seeking a medical diagnosis;
•  The employee is caring for an individual who is subject to an order described in Section 1, or advised as described in Section 2;
• To care for a child whose school is closed or his/her regular child care provider is unavailable;
• The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. 

Exemptions: Health care providers and emergency responders.