10 FAQs for Employers on New York City’s Earned Sick Time Act
Kelley Drye Client Advisory
August 25, 2014

New York City’s Earned Sick Time Act (“ESTA” or the “Act”) took effect on April 1, 2014. Effective July 30, 2014, eligible employees have a right to use sick time accrued under the Act. The following FAQ provides employers with some basic information to assist them in complying with their obligations under the ESTA. This is just a summary and should not be regarded as legal advice. Kelley Drye’s Labor & Employment Group is available to provide additional guidance to employers on complying with the NYC law, as well as other employee leave requirements under federal, state, and local laws.

1.     What employers must provide sick leave?

Employers with five or more employees who are hired to work in New York City for more than 80 hours in the calendar year must provide eligible employees with paid sick leave. Employers with fewer than five employees must provide unpaid sick leave. Non-profit employers are not exempt from the requirements of the ESTA.

To determine the number of employees, an employer must count all employees who work for pay for more than 80 hours per calendar year in New York City, regardless of whether they work on a full-time, part-time, or temporary basis.

Independent contractors are not counted (assuming they are properly classified). Similarly, contract and staff agency placement employees are not counted, unless the business qualifies as a “joint employer” of such employees.

2.     What employees are covered by the Act?

With minor exceptions, all employees who work more than 80 hours per calendar year in New York City are covered by the law.

This includes part-time, per diem and temporary employees. Supervisors and managers are similarly protected. Employees who live outside of New York City but work in New York City are covered. Individuals who telecommute are covered by the Act for the hours when they are physically working in New York City, regardless of where the employer is located.

Employees covered by a collective bargaining agreement in effect on April 1, 2014, are not entitled to accrue sick leave until the current CBA ends, unless the parties agree to other terms.

Individuals properly characterized as independent contractors are not covered.

3.     How much sick leave do employers have to give?

Employees are entitled to a maximum of 40 hours of sick leave per calendar year. Employees accrue sick leave at a rate of one hour for every 30 hours worked, up to 40 hours accrued per calendar year.

Employees begin to accrue sick leave on April 1, 2014 or on their first day of employment, whichever is later.

Employees can start using accrued sick leave on July 30, 2014 or 120 days after the start of employment, whichever is later. After 120 days of employment, employees can use sick leave as it accrues.

4.     What happens to accrued but unused sick leave at the end of the calendar year?

An employee can carry over to the next calendar year up to 40 hours of accrued but unused sick leave. Sick leave that is carried over to the next year must be immediately available for the employee’s use. However, employers are only required to permit employees to use up to 40 hours of sick leave per calendar year.

Instead of permitting employees to carry over unused sick leave, an employer may pay an employee for unused sick leave at the end of the year.

5.     Must unused sick leave be paid out at termination?

Upon separation of employment the employer is not required to pay the employee for unused sick leave.

6.     For what reasons can an employee use sick leave?

Sick leave can be used for absences due to:

  • The employee’s own physical or mental illness, injury, or health condition;

  • The employee’s need for medical diagnosis, care or treatment;

  • The employee’s need for preventative medical care (e.g., doctors and dentists appointments);

  • Care of a family member who needs medical diagnosis, care, treatment, or preventative medical care;

  • Closure of an employee’s place of business due to a public health emergency;

  • The employee’s need to care for a child whose school or child care provider closes due to a public health emergency.

“Family member” is defined broadly to include: child, grandchild, spouse, domestic partner, parent, grandparent, sibling (including half, adopted, or step sibling), and the child or parent of a spouse or domestic partner.

7.     What limits can be placed on an employee’s use of sick leave?

An employer cannot limit when the employee uses sick leave. The employee must be permitted to use sick leave for any mandatory hours that an employee was scheduled to work, including overtime.

Employers can set reasonable minimum increments for the use of sick leave, but the minimum increment cannot be more than 4 hours per day.

8.     Can an employer require advance notice and/or documentation of the need to use sick leave?

If the need for leave is foreseeable (e.g., scheduled appointments), the employer can require up to seven days advance notice of an employee’s intention to use sick leave.

If the need is unforeseeable, the employer may require the employee to give notice only as soon as practicable.

An employer can only require the employee to provide medical documentation confirming the need for sick leave if the employee uses more than three consecutive work days as sick leave.

9.     If the employer provides other time off, can this time satisfy the sick leave requirements under the ESTA?

If an employer offers paid time off (e.g., vacation, personal days, sick day) under its current leave policies that meets or exceeds the minimum requirements of the Act and can be used for the purposes of sick leave (see Question 6), an employer can use its pre-existing time off policies to satisfy the ESTA.

10.     What notice must an employer give to employees and what records must the employer keep about sick leave?

Employers must give the Notice of Employee Rights created by the NYC Department of Consumer Affairs to new hires at the start of employment and to all existing employees by May 1, 2014. Notice must be provided in English and, if available on the DCA website, in the employee’s primary language. An employer is not required to post the notice in the workplace and cannot post the notice instead of providing individual notice to employees.

Employers must maintain records to demonstrate compliance with the ESTA for at least three years. This may include copies of leave policies and records showing employee sick leave use and accrual.

For further information please contact:

Barbara E. Hoey
(212) 808-7628
bhoey@kelleydrye.com