NY Employee Paid Sick Leave Law Starts January 1, 2021

The New York State Paid Ill Leave law (“NYSPSL”) and the amendments to the New York Metropolis Paid Secure and Sick Leave law (“ESSTA”) expanding employees’ paid ill depart entitlements will go into complete result on January 1, 2021. As we previously documented, NYSPSL went into result on September 30, 2020 for accrual purposes, but staff are not ready to access their accrued sick go away until January 1, 2021.

As a reminder, beneath both of those NYSPSL and ESSTA, the sum of unwell go away is decided by an employer’s sizing and web profits in a offered calendar calendar year:

  • Businesses with 4 or less employees and a internet revenue less than $1 million must present at minimum 40 several hours of unpaid ill leave for every calendar year.

  • Companies with 5-99 staff members and companies with 4 or fewer staff and a net earnings higher than $1 million must give at the very least 40 several hours of compensated sick depart for every calendar yr.

  • Employers with 100 or extra personnel must give at minimum 56 several hours of compensated ill go away for each calendar calendar year.

On December 9, 2020, the New York Point out Department of Labor (“NYSDOL”) published proposed polices, clarifying particular concerns similar to NYSPSL. The crucial takeaways contain:


  • Clarification offered for various phrases made use of in NYSPSL, including “Confidential Info,” “Domestic Husband or wife,” “Family Offense,” “Human Trafficking,” “Mental Disease,” “Net Profits,” “Preventative Clinical Treatment,” “Sexual Offense,” and “Stalking.”

Documentation of Eligibility for Go away

  • Employers are prohibited from demanding staff to supply “medical or other verification in link with ill leave that lasts considerably less than three consecutive beforehand scheduled workdays or shifts.” Take note that, less than ESSTA, companies should hold out until immediately after the third consecutive working day of protected and ill leave to request documentation.

  • Companies are prohibited from demanding an personnel to supply private information, like the mother nature of an disease, its prognosis, treatment, or other connected information. Furthermore, an employer are not able to need an worker to disclose any aspects or information relating to leave taken pursuant to NYSPSL.

  • Besides the place prohibited by legislation, an employer may ask for documentation from an staff confirming their eligibility to consider ill leave exactly where the staff takes advantage of go away for 3 or extra consecutive and formerly scheduled workdays or shifts. Requests for documentation are minimal to: (i) an attestation from a licensed health care company supporting the existence for a need for unwell go away, the sum of unwell leave essential, and a date that the personnel might return to get the job done or (ii) an attestation from an staff of their eligibility to choose ill go away.

Counting Staff members

  • The selection of workforce during a calendar yr is decided by counting the greatest full quantity of workforce concurrently utilized at any position during the calendar year to day.

  • For businesses that boost the selection of workers for the duration of a calendar 12 months earlier mentioned any of the relevant thresholds described in NYSPSL:

    • The accrual of extra needed depart is potential from the day of the raise and does not entitle staff to reimbursement for beforehand employed unpaid depart, or to use more than the utmost quantity of leave as necessary less than NYSPSL

    • Prior accruals of made use of and unused paid out depart and utilized unpaid leave in a calendar 12 months may be credited by an employer towards any increased paid depart obligations underneath NYSPSL. Companies may perhaps not credit any prior accrual of unused unpaid go away toward any compensated leave obligations and

    • Personnel will have to retain any present accrued compensated and unpaid unwell depart, notwithstanding an boost in the range of workers for the duration of a calendar yr.

  • Businesses are prohibited from minimizing go away entitlements primarily based on a reduction in the number of staff right up until the next calendar yr.

  • Companies are necessary to depend workforce on compensated or unpaid depart, which include unwell depart, leaves of absence, disciplinary suspension, or any other style of short term absence, as extensive as the employer has a realistic expectation that the employee will later return to active work. If there is no employment relationship (as when an staff is laid off or terminated, whether temporarily or permanently), the individual need not be counted.

  • Businesses are expected to count component-time staff members as utilized on each and every doing the job day of the calendar week.

  • Companies are required to count workforce who are jointly utilized, no matter of no matter if they are on the employer’s payroll documents.


  • Worker accruals of depart need to account for all time labored, no matter of no matter whether time labored is fewer than a 30-hour increment.

  • For calculating accruals for time worked in increments of a lot less than 30 hours, businesses may perhaps “round accrued go away to the nearest 5 minutes, or to the closest one particular-tenth or quarter of an hour, delivered that it will not consequence, over a time period of time, in a failure to offer the good accrual of depart to workers for all the time they have actually labored.”

The NYSDOL will take reviews on the proposed regulations until eventually February 7, 2021. Pending the issuance of closing polices, New York Condition and Town employers need to assessment and update their recent sick go away insurance policies and methods to conform with the prerequisites of NYSPSL, ESSTA and current direction converse any variations in guidelines and techniques to employees in advance of implementation and coach supervisory, managerial workers and human assets gurus on the requirements below NYSPSL and ESSTA.

Jamie Moelis contributed to this short article.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.
Countrywide Law Evaluate, Quantity XI, Number 4