Reminder: Accrual and Recordkeeping Requirements Under New York State Sick Leave Law Take Effect on September 30

In the midst of everything else, employers must remember that New York State’s sick leave law (SLL) takes effect on September 30, 2020 (as noted in our client advisories in April and May). Eligible employees may begin to accrue sick leave as of that date, but are not permitted to utilize earned sick leave under the SLL before January 1, 2021.

Employees in New York City and Westchester County have been eligible for leave under local laws since 2014 and 2019, respectively. Now, all employees in New York State will be entitled to between 40 and 56 hours of annual sick leave.

As explained in our April alert, benefits under the SLL are available to employees in New York as follows:

• Employers with both fewer than five employees in a calendar year and annual net income of less than one million dollars – Employees are entitled to up to 40 hours of unpaid sick leave in each calendar year.
• Employers with fewer than five employees in a calendar year but annual net income of greater than one million dollars – Employees are entitled to up to 40 hours of paid sick leave in each calendar year.
• Employers with between five and 99 employees in a calendar year – Employees are entitled to up to 40 hours of paid sick leave in each calendar year.
• Employers with 100 or more employees in a calendar year – Employees are entitled to up to 56 hours of paid sick leave in each calendar year.

For employers choosing to allow employees to accrue sick leave based on time worked, accrued sick leave must be tracked as of September 30. But, because employees cannot use the accrued time before January 1, 2021, employers must permit employees to carry their 2020 accruals into the new year. Employers who choose to administer the accrual method must permit employees to accrue sick leave at the rate of one hour for every 30 hours worked.

Alternatively, and to avoid the potential recordkeeping problems in calculating an employee’s accrued sick leave, employers may elect to frontload the total number of required sick leave hours at the beginning of each calendar year, starting in January 1, 2021. For example, an employer with 100 or more employees may satisfy its obligation by providing each employee with 56 hours of paid leave available for use as of the first day of 2021.

A comprehensive explanation of the permissible uses of sick leave can be found here.

Employers should also note that effective September 30, in connection with the SLL, New York’s Wage Theft Prevention Act has been amended to require all New York State employers to maintain records – for no less than six years – of the “amount of sick leave provided to each employee.” More information on the Wage Theft Prevention Act can be found here.

As of the date of this advisory’s publication, New York has not released guidance or regulations to assist employers with interpreting the SLL. Guidance will likely be of particular importance to employers in New York City and Westchester County, who will need to navigate state requirements in addition to obligations under existing local laws.

Employers should review their existing leave policies to ensure compliance with the SLL.