Aug 29, 2013

New Law Requires Many New York City Employers to Provide Paid Sick Leave

On June 26, 2013, the New York City Council enacted the Earned Sick Time Act (the “Act”), to require many of New York’s private employers to provide paid sick leave to employees who work more than 80 hours in New York City in a calendar year. Beginning April of 2014, employers with 20 or more employees must provide one hour of sick time for every 30 hours worked by an employee, not to exceed 40 hours of paid sick time for any one employee in a calendar year.  The coverage will extend to employers with 15 or more employees in October of 2015.

The sick time begins to accrue on the effective date of the law or the commencement of the employment, whichever is later.  The employee may not use the accrued sick time until 120 days after the sick time begins to accrue. The employee may determine the amount of sick time to be used on any particular day.  However, the employer can set a minimum increment of time to be used as long as that increment does not exceed four hours per day.

The employer is not required to compensate the employee for accrued, but unused sick time upon termination of employment. If the employee is transferred to a new division within the same company in the city of New York, the employee is entitled to all of the sick time that he/she already accrued.  If the employee is separated from his employment but is re-hired within six months, the employee is entitled to all of the sick time previously accrued, unless the employee was already compensated for such sick time. 

Employers should note that nothing in the Act prohibits an employer from granting paid sick time that exceeds the minimum amount in the Act or allows a faster rate of accrual. The Act does not apply to employees who have waived the provisions of the Act in a collective bargaining agreement where the agreement provides the employee with similar leave benefits. If the employee is engaged in the construction or grocery industry and is covered by a collective bargaining agreement, the agreement may waive the Act regardless of whether the agreement provides for similar benefits. 

Valid Use of Time

Employees are entitled to use sick time for mental or physical illness, injury or health condition, and any care or preventive care related to both.  Sick time may also be used for the care of a family member.  Family members for the purpose of the Act are defined as the employee’s children, spouse, domestic partner or parent.  Family members also include the parent or child of the employee’s spouse or domestic partner.  Paid sick time may also be used by the employee in the event a public official closes the employer’s place of business due to a public health emergency or for the care of a child whose school or childcare provider is closed by a public health official. If the employee’s need to use the sick time is foreseeable, an employer may require advance notice of the employee’s absence, not to exceed seven days.  When the event causing the employee’s absence is not foreseeable, the employee may give notice when it is practicable to do so.  Nothing in the Act prohibits an employer from requiring written documentation of the employee’s absence. If both the employer and the employee consent, the employee may work additional hours in the seven days before or after the absence to avoid the use of sick time. However, the employer cannot require the employee to do so.

Notice Requirements

Written notice of the right to sick time must be presented to the employee at the commencement of employment.  The notice must also include the method of accrual and use of sick time, the applicable calendar year, notice that the employee is free from retaliation for use of sick time, and notice that the employee has the ability to bring a complaint to the Department of Consumer Affairs.  Such notice may also be posted in a conspicuous place at the employer’s place of business.  The Department of Consumer Affairs will provide sample notices available for download in multiple languages on its web site. The employer must keep documentation of its compliance with the Act for a period of two years and must make documentation available to the Department of Consumer Affairs at a reasonable time when required for investigative purposes.

Penalties

For sick leave taken by an employee but for which the employee was not lawfully compensated, relief includes three times the wages that were to be paid or $250, whichever is greater. For requested sick leave unlawfully denied by an employer, additional hours the employee was unlawfully required to work without the employee’s consent, or for the employer unlawfully requiring the employee to find a replacement worker, the fine is $500.  For each instance of unlawful retaliation by an employer, the employee is entitled to full wages, $500, and may be entitled to other relief where appropriate. If the employee is unlawfully discharged for actions taken pursuant to the Act, the employee is entitled to full compensation including benefits and wages lost, $2,500, and other relief where appropriate. 

In addition to the penalty to be paid to the employee, each of the foregoing violations will also result in a penalty to be paid to the city.  The first violation will result in a penalty of $500.  Any violations that occur within the 2 years of the first violation will result in a fine not to exceed $750 for the second violation and not to exceed $1,000 for each subsequent violation.  A willful failure of an employer to provide notice to an employee will result in a civil fine of $50 for each employee not properly noticed.  

If you have any questions regarding these issues, please do not hesitate to contact your  employment counsel at Smith, Gambrell, & Russell, LLP.


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