Hunton Employment & Labor Perspectives

The national trend in increased workplace regulation continues on April 1, as New York City’s Earned Sick Time Act goes into effect. 

Although most large employers provide paid sick leave to employees, those employers in Gotham now don’t have a choice. The requirement applies to  any employer with at least five employees.

New York City’s move represents the latest, and perhaps most significant in  a municipal trend:  Mandatory paid sick leave for employees.  San Francisco, Washington, D.C., Seattle, Portland (Oregon), and Newark all have enacted paid sick leave laws, as has the state of Connecticut.  New York’s City Council overrode a mayoral veto of the bill in 2013, and before its upcoming effective date, new Mayor Bill de Blasio last week signed an amendment that causes the law to cover employers with five or more employees – as opposed to the original bill’s 15 or more.

The mechanics of the law work as follows:

• For an employer with five or more employees in New York City, the employer must provide each New York City employee an hour of paid sick leave for every 30 hours worked, up to a maximum accrual of 40 hours of paid sick leave in a calendar year.  (An “employee” is someone hired to work for more than 80 hours within New York City in a calendar year.)  The employee can begin using the leave 120 days after the beginning of employment, or 120 days after April 1, 2014, whichever is later;
• The employee may use leave for his mental or physical illness, injury, health condition, or preventive medical care, or to care for a family member with a mental or physical illness, injury, health condition, or need for preventive medical care;
• If the absence is for three days or fewer, the employee does not have to provide the employer with a doctor’s note.  Upon the employer’s request, the employee need only provide his own written confirmation that he used sick time for an illness, injury, etc.
• If the absence is for more than three days, the employer may require “reasonable documentation” from the employee that the used sick time was for illness, injury, etc.  Documentation signed by a licensed health care provider constitutes reasonable documentation, although the employer cannot require that the documentation specify the nature of the health condition, “except as required by law” (presumably, the FMLA or ADA);
• Employees may carry over unused sick leave from one calendar year to the next, although employers are not required to permit the use of more than 40 sick-leave hours in a calendar year;
• Employers must provide new employees with a notice of their rights to the sick leave.  This can be done through a notice created by the New York Department of Consumer Affairs, found on the Department’s website.  Employers also must maintain all records documenting compliance with the law for a minimum of three years.

There is a sidelight to the law that affects employers which employ between one and four employees.  While those employers need not provide paid  sick leave, they still must provide unpaid sick leave in accordance with the standards provided above.

Employees who believe that their employers have not complied with the law – or have retaliated against them for their sick leave requests – may bring claims before the Department of Consumer Affairs.  The Department is empowered to provide many types of relief, including reinstatement, back wages, triple wages for the amount of sick leave denied, and penalties.

The Earned Sick Time Act has many more details and nuances.  You should contact an attorney before attempting to comply with the law.