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Updated New York State Paid Sick Leave Guidance

The New York State Department of Labor has released a list of answers to frequently asked questions relating to the New York State Paid Sick Leave legislation, which takes effect on January 1, 2021.  The FAQ is available here: https://www.ny.gov/sites/ny.gov/files/atoms/files/PSL_FAQ_PaidSickLeaveFAQ.pdf
 
 

New York State Sick Leave Law Signed Into Law

On April 3, 2020, New York Governor Andrew Cuomo signed the 2021 budget into law.  The 2021 budget included an amendment to the labor law (N.Y. Lab. § 196-b [2020]) to require New York employers to provide sick leave to their employees.  Notably, governmental agencies and public sector employers are not subject to the New York sick leave law.  The New York sick leave law takes effect on September 30, 2020.

Amount of Sick Leave

The New York sick leave law requires private sector employers of all sizes to provide paid or unpaid sick leave to their employees based on the employer’s size and net income.

Employer Category Minimum Leave Requirement
Those with 4 or fewer employees and net income of less than $1 million in the previous tax year 40 hours of unpaid sick leave per year
Those with 4 or fewer employees and net income of more than $1 million in the previous tax year 40 hours of paid sick leave per year
Those with 5 to 99 employees 40 hours of paid sick leave per year
Those with 100 or more employees 56 hours of paid sick leave per year

 

For purposes of determining the number of employees in a calendar year, the calendar year is defined as starting on January 1 and ending on December 31.

For all other purposes, including for purposes of accruing and using paid sick leave, the law defines “calendar year” to mean either: (1) the 12 month period from January 1 through December 31; or (2) a regular and consecutive 12 month period as defined by the employer.

Employees shall earn one hour of sick leave for every 30 hours worked.  Employers may also provide employees the full amount of sick leave at the beginning of the year, however, it should be noted that if an employee does not work enough hours to have otherwise qualified for the amount of leave provided, employers may not later reduce the amount of sick leave previously granted.

Accrual

Under the New York sick leave law, sick leave will begin to accrue on September 30, 2020 or the start date of employment, whichever is later, but cannot be used until January 1, 2021.  In years following 2021, employees may use sick leave immediately upon accrual.  Any unused accrued sick leave shall be carried over to the following year, however, employers may limit the use of sick leave to the required minimum amounts accrued in any given year as outlined in the chart above.  Employers are not required to pay any unused sick leave to an employee who has been separated from employment for any reason.

Permissible Usage

An employee may take sick leave for the following reasons:

  • For the mental or physical illness, injury, or health condition of the employee or the employee’s family member, regardless of whether a diagnosis has been made or whether medical care is required at the time of the request;
  • For the diagnosis, care and treatment or the need for the diagnosis, care and treatment of a mental or physical illness, injury or health condition of the employee or the employee’s family member, or preventive care for such employee or employee’s family member;
  • For the employee or employee’s family member who is a victim of domestic violence, a family offense, sexual offense, stalking or human trafficking as needed to:
  • Obtain services from a domestic violence shelter, rape crisis center or other services program;
  • Participate in safety planning, relocating, or to take other actions to increase the safety of the employee or the employee’s family member;
  • Meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding;
  • File a complaint or domestic incident report with law enforcement;
  • Meet with a district attorney’s office;
  • Enroll children in a new school; or
  • Take any other actions necessary to ensure the health or safety of the employee or the employee’s family member or to protect those associated with or working with the employee.

The law defines “family member” as an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent and the child or parent of an employee’s spouse or domestic partner.  “Parent” is defined as an employee’s biological, foster, step- or adoptive parent or legal guardian or a person who stood in loco parentis when the employee was a minor.  And “child” is defined as biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.

Employers may not require the disclosure of confidential information relating to the employee’s request for sick leave as a condition to providing such sick leave.  For those employers required to provide paid sick leave, an employee shall be compensated at their regular rate of pay for all sick leave used.  Employers may require a reasonable minimum increment of sick leave that an employee may take in any given day.  This minimum cannot exceed 4 hours.

Job Protection

Additionally, employees are entitled to job protection when using sick leave.  Upon return to work following sick leave, an employee shall be restored to their position of employment with the same pay and other terms and conditions of employment. Under the New York sick leave law, it is also unlawful to discharge, threaten, penalize or in any other manner discriminate or retaliate against any employee who takes sick leave.

Documentation

Employers must track accrual and usage and must keep such records for a period of not less than 6 years.  Additionally, upon an employee’s request, an employer must provide the amount of sick leave accrued and the amount of sick leave used to an employee within 3 business days of their request for such information.

Variations in Sick Leave

Employers are not required to provide additional sick leave under this law if the employer already has a policy providing for sick leave which meets or exceeds the requirements of the New York sick leave law including the accrual, carryover and use requirements.

Further, the law is not intended to prevent cities with populations of one million or more from enacting or enforcing local laws or ordinances which meet or exceed the requirements of the New York sick leave law.  For example, both Westchester County and New York City both currently have earned sick and safe leave laws that shall remain in effect.

Employers and unions may agree in a collective bargaining agreement entered into on or after September 30, 2020, that, in lieu of the statutorily required paid sick leave, covered employees will be provided with a comparable benefit in the form of paid days off, including leave, compensation and/or other employee benefits or a combination thereof.  Additionally, unions are permitted to negotiate sick leave benefits for their members that are different from the benefits provided by the law.  In both cases where a different benefit is provided for an employee covered by a collective bargaining agreement, the collective bargaining agreement must specifically acknowledge the New York sick leave law.

We expect the New York State Department of Labor will issue additional regulations and/or guidance prior to September 30, 2020, the effective date of the new sick leave law.  In the interim, employers should determine how much sick leave they will be required to provide to their employees and decide whether employees will be required to accrue the sick leave or whether the sick leave will be front loaded.  In addition, employers should ensure that they have a reliable method of tracking accrual and use of sick leave.  Employers with collective bargaining agreements should review those agreements to ensure that they provide a benefit equal to or greater than that required by the statute and, where that is not the case, arrange to meet with the bargaining agent for their employees to either renegotiate the sick leave benefit or enter into an agreement with the Union to provide for a different benefit, ensuring that any such agreement specifically references the New York State paid sick leave law.

NY Shield Act Expands Data Security Laws

This legislation is an expansion of New York’s data security requirements.  It amends both the NY General Business Law and the NY Technology Law to require business who maintain private information of NY residents to take certain steps to ensure that the electronic data they maintain is properly safeguarded from unauthorized access and expanding the requirement that business notify any NY resident whose information has been accessed or acquired with valid authorization.    The law applies not only to employee information (where the employees are residents of NY) but also to private information of non-employees that the business may have (i.e. customers who are NY residents).  So, while there is an employment component, the law is much broader.

Private information includes:

  • Social security number
  • Driver’s license number or non-driver identification card number
  • Financial account number, credit or debit card number and security code/access codes/passwords to the same
  • Biometric data (fingerprint, voice print, retina or iris image or other unique physical representation of biometric data)
  • Username or email address in combination with a password or security question answer that would permit access to an online account

The law requires any person or business that owns or license computerized data which includes private information of a resident of NY to “develop, implement and maintain reasonable safeguards to protect the security confidentiality and integrity of the private information including, but not limited to disposal of the data.”  N.Y. Gen. Bus. Law Section 899-BB 2 (2020).

Business that are currently complying with data security requirements of the Federal Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act or the NYS Department of Financial Services’ Cybersecurity Requirements for Financial Services Companies, will be deemed to be in compliance with the SHIELD Act.

For businesses not regulated by one of those statues, the law says that they must:

  1. Implement a data security program that includes “reasonable administrative safeguards” such as the following in which the business:
  2. Designates one or more persons to coordinate the security program;
  3. Identifies reasonably foreseeable internal and external risks;
  4. Assesses the sufficiency of safeguards in place to control the identified risks;
  5. Trains managers and employees in the security program practices and procedures;
  6. Selects service providers capable of maintaining appropriate safeguards and requires those safeguards by contract; and
  7. Adjusts the security program in light of business changes or new circumstances.

N.Y. Gen. Bus. Law Section 899-BB 2 (A)(1) through (6)(2020).

  1. Implement reasonable technical safeguards such as the following in which the business:
  2. Assesses risk in network and software design;
  3. Assesses risk in information processing, transmission and storage;
  4. Detects, prevents and responds to attacks or system failures; and
  5. Regularly tests and monitors the effectiveness of key controls.

N.Y. Gen. Bus. Law Section 899-BB 2 (B)(1) through (4)(2020).

  1. Implement reasonable physical safeguards such as the following in which the business:
  2. Assesses risks of information storage and disposal;
  3. Detects, prevents and responds to intrusions;
  4. Protects against unauthorized access to or use of private informant during or after the collection, transportation and destruction for disposal of the information; and
  5. Disposes of private information within a reasonable amount of time after it is no longer needed for business purposes by erasing electronic media so that the information cannot be read or reconstructed.

N.Y. Gen. Bus. Law Section 899-BB 2 (C)(1) through (4)(2020).

A “small business” will be deemed to be in compliance with the requirements listed above if the small business’s security program contains reasonable administrative, technical and physical safeguards that are appropriate for the size and complexity of the small business, the nature and scope of the small business’s activities and the sensitivity of the personal information the small business collects from or about consumers.  A “small business,” is defines as one with (1) fewer than 50 employee; (2) less than three million dollars in gross annual revenue in each of the last 3 fiscal years or (3) less than five million dollars in year-end total assets, calculated in accordance with generally accepted accounting principles. N.Y. Gen. Bus. Law Section 899-BB 2 (c)(2020).

The requirements set forth above take effect on March 21, 2020.

The law also requires any person or business which owns or licenses computerized data which includes private information to “disclose any breach of the security of the system following discovery or notification of the breach in the security system, to any resident of New York State, whose private information was or is reasonably believed to have been accessed or acquired by a person without valid authorization.    This provision took effect on October 23, 2019.

There is no private right of action under the law – meaning a NY resident or an employee cannot bring a claim against a business directly.  N.Y. Gen. Bus. Law Section 899-BB 2 (e)(2020).  However, the NY Attorney General can bring an action against a business and can recover penalties equal to $20 for each failure to provide the required notification or $5,000, whichever is greater, with a maximum statutory penalty of $250,000.  The maximum penalty to a maximum of $250,000.00.  In addition a $5,000 penalty per violation can be imposed for a violation of the reasonable safeguard requirements.

It would be wise to consult with the company’s IT provider to discuss compliance with this legislation.

Update On New Sexual Harassment Requirements For New York State Employers

New York State has passed some fairly significant requirements with respect to sexual harassment in the workplace.  Our firm’s co-founder, Ginger Schroder, had a newsletter update on the requirements published in The Milestone Press, a Legal Examiner affiliate. Learn more about the details of this critical new legislation here: https://milestone.legalexaminer.com/legal/urgent-update-on-new-sexual-harassment-requirements-for-new-york-state-employers/