UPDATED October 29, 2020 – NYC has released an updated version of the Notice of Rights posting for employers to distribute. Employers with 100+ employees in the state of New York must distribute the updated notice prior to January 1, 2021.
On September 28, 2020, New York City (NYC) Mayor Bill de Blasio signed an amendment to the New York City Earned Safe and Sick Time Act (NYC Sick Leave) in order to align those requirements with the new statewide mandatory paid sick leave requirements (NY State Sick Leave) that took effect September 30, 2020. For more information about NY State Sick Leave and its requirements, please visit our blog posts here and here. While the amendments mirror the requirements under NY State Sick Leave, this article discusses the changes and highlights additional requirements imposed on NYC employers.
Effective September 30, 2020 NYC Employers Must
- Report on a pay statement (or other document) the balance of accrued leave and amounts used during that pay period;
- Notify employees of changes to NYC Sick Leave and update the Notice of Rights posting;
- Reimburse employees that pay for requested medical documentation;
- Review business size to determine if they employ 100+ employees in the state of New York. If so, those employers must now allow employees working in NYC to accrue leave at a new rate of 56 hours annually (employers may limit use of any newly provided leave until January 1, 2021);
- No longer include a waiting period for use of NYC Sick Leave and must permit leave as it is accrued.
Effective January 1, 2021
- NYC employers with 100+ employees located in the state of New York must provide and permit carryover of 56 hours annually (up from the previous 40 hours);
- Small employers (those with 4 or fewer employees) within the state must provide paid leave to employees if the employer had a net income of $1 million or more in the previous tax year;
- Employees no longer need to work at least 80 hours within New York City to be eligible for NYC Sick Leave.
How does the Amendment change NYC Sick Leave Accrual?
Employees accrue 1 hour of NYC Sick Leave for every 30 hours worked. The amount of benefits available is now based on employer size and net income, consistent with the accrual for NY State Sick Leave, as follows:
- Employers with at least 100 employees in the state of New York must provide at least 56 hours of paid sick leave to their NYC employees;
- Employers with between five (5) and 99 employees must provide at least 40 hours of paid sick leave;
- Employers with four (4) or fewer employees and a net income of greater than $1 million in the previous tax year must provide employees at least 40 hours of paid sick leave; and
- Employers with four (4) or fewer employees and a net income of $1 million or less in the previous tax year must provide employees at least 40 hours of unpaid sick leave.
- Employers may set a reasonable minimum daily increment for the use of sick leave not to exceed four (4) hours.
How does the Amendment change NYC Sick Leave Use and Carryover Requirements?
Beginning September 30, 2020, employers with more than 100 employees must permit an employee to accrue and use up to 56 hours of NYC Sick Leave in a single calendar year, and carryover unused amounts up to 56 hours. It is important to note that these employers are not required to provide more than 40 hours of paid safe and sick leave in calendar year 2020, however effective September 30, 2020, they must begin to allow an employee to accrue up to 56 hours. Beginning January 1, 2021, employers with 100 or more employees must permit an employee to use up to 56 hours of paid safe and sick leave during the calendar year.
Is an Employer Permitted to Implement a Waiting Period?
Previously, employees could be prohibited from using any accrued (or front-loaded) leave until after 120 days of employment. Under the amendment, employees must be allowed to use safe and sick time as it accrues.
In addition, all employees are entitled to accrue safe and sick leave, as employees no longer need to work at least 80 hours within New York City to be eligible.
Will NYC Sick Leave Mirror other Future changes to NY State Sick Leave?
Yes. The amendment specifies that if NY State Sick Leave, or any regulation issued under it, sets a standard or requirement for minimum hours or use of safe/sick time that exceeds any provision of NYC Sick Leave, that standard or requirement will also apply to NYC Sick Leave.
Additional Requirements for NYC Employers
- Pay Statement Reporting Requirement: NYC employers now need to include on an employee’s paystub, or other separate writing provided to the employee each pay period:
- the amount of NYC Sick Leave accrued and used during the pay period, and
- the total balance of accrued NYC Sick Leave
The NYC Department of Consumer Affairs has noted on its website that “employers that could not operationalize this requirement by September 30, 2020, but are working in good faith on implementation will have until November 30, 2020, to ensure compliance without a penalty.”
- Updated Notice of Employee Rights: NYC Employers are required to notify employees of the changes to NYC Sick Leave, and must continue to provide new employees with a Notice of Rights upon hire. The notice must also be conspicuously posted at the employer’s place of business in an area accessible to employees. Note: the amendment states that for employees who were already employed prior to the September 30 effective date, the updated notice is to be provided within thirty days (i.e., by October 30, 2020). However, the NYC webpage, states that under the new amendments, the following employers must provide an updated notice of rights to employees by January 1, 2021: (1) Employers with 100 or more employees; and (2) Employers of domestic workers. It is unclear, whether employees with less an 100 employees have until January 1, 2021 to provide the updated notice and therefore the conservative approach is for covered employers to provide the update notice as soon as practicable.
- Reimbursement of Cost for Requested Medical Documentation: NYC employers must now reimburse employees for any costs incurred in obtaining written documentation from a medical provider, or third party, confirming the use of NYC Sick Leave for an authorized purpose. Employers may only request this information for absences of more than three consecutive workdays.
Covered Employer Action Items
- Employers should update their sick leave policies and tracking mechanisms to comply with the new requirements under NYC Sick Leave;
- Sequoia One Clients are encouraged to reach out to their HR Business Partner for any needed assistance.
- Employers should inform their internal human resources professionals about the new requirements;
- Employers should implement a method for accurately reporting NYC Sick Leave balances and accruals each pay period;
- Sequoia One Clients: Sequoia One systems will be updated to permit the tracking of NYC Sick Leave balances and accruals each pay period.
- Employers must provide an updated Notices of Rights to current employees and to any new hires.
Our compliance team will continue to monitor developments to NYC Sick Leave and update this article, as necessary.
- Notice of Employee Rights
- Notice of Employee Rights (Spanish)
- NYC Sick Leave Law
- Amendment to NYC Sick Leave Law
- NYC Sick Leave – Frequently Asked Questions
- Sequoia Blog: Reminder: New York State Paid Sick Leave Begins September 30, 2020
- Sequoia Blog: New York Enacts Mandatory Paid Sick Leave
Disclaimer: This content is intended for informational purposes only and should not be construed as legal, medical or tax advice. It provides general information and is not intended to encompass all compliance and legal obligations that may be applicable. This information and any questions as to your specific circumstances should be reviewed with your respective legal counsel and/or tax advisor as we do not provide legal or tax advice. Please note that this information may be subject to change based on legislative changes. © 2020 Sequoia Benefits & Insurance Services, LLC. All Rights Reserved