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CLIENT ALERT: The New York City Earned Sick Time Act

July 2013
Aliza F. Herzberg and Lori Barnea

The New York City Council recently passed the New York City Earned Sick Time Act, requiring most New York City private employers to provide paid or unpaid sick leave to employees working in New York City, overriding a mayoral veto.  The Earned Sick Time Act will require private businesses with 20 or more employees to provide five paid sick days annually, beginning in April 2014, with coverage expanded to businesses with 15 or more employees beginning in October 2015.  Some businesses will be exempt from the requirement to pay employees for sick time, but will still be required to provide time off without penalty to employees.

Key Provisions of the Earned Sick Time Act

  • Effective April 1, 2014, sick time must be provided for private sector New York City employees to care for an employee’s own health needs or to take care of a sick member of the immediate family (limited to spouse, child, parent or domestic partner).  It can also be used if schools or businesses are closed due to a public health emergency.
  • Effective April 1, 2014, most New York City employers must provide at least 40 hours of sick leave (five days) per calendar year to most of their employees.
  • Employers that already provide at least five days of any kind of paid time off (i.e., personal days, vacation and sick leave) would not be required to provide any additional sick time, either paid or unpaid, under the law.
  • For employers with 20 or more employees, the five sick days must be paid; for employers with fewer than 20 employees, the sick leave can be unpaid.  Beginning October 15, 2015, the requirement to provide paid sick days to employees will expand to employers with 15 or more employees.
  • Employees will begin to accrue sick leave at the commencement of employment, but they are not entitled to take the leave until they have been employed by the employer for 120 days.
  • If an employee notifies the employer that he or she intends to take sick leave under the Earned Sick Time Act, the employer cannot require the employee to find a replacement to cover the employee’s shift.
  • Upon termination of employment, the employer is not required to pay the departing employee for his or her accrued but unused sick leave.  Employers can either pay out accrued but unused sick leave to their employees annually or  permit employees to carry over accrued sick leave from year to year, up to a maximum of 40 sick leave hours (five days).
  • Effective October 15, 2015, employers of one or more domestic workers will also be required to provide paid sick time.  Domestic workers will earn two days of paid sick time after one year of work with the same employer.  (This is in addition to the three days of paid rest time domestic workers receive under the New York Labor Law.)

Notice and Recordkeeping Requirements

The Earned Sick Pay Act will require employers to provide each employee with written notice at the commencement of employment of the employee’s rights to sick leave.  The notice must include the accrual and use of sick leave, the applicable calendar year, the right to be free from retaliation and the right to file a complaint with the New York City Department of Consumer Affairs.  This notice must be provided in English and the employee’s primary language and must be conspicuously posted at an employer’s place of business.  The Department of Consumer Affairs will make these notices available before the law goes into effect.  Employers must keep records documenting their compliance with the Earned Sick Pay Act for at least two years.

Penalties and Damages

If an employer fails to provide paid sick leave to an employee, the employee will be entitled to three times the wages that should have been paid or $250, whichever is greater.  If an employee requests sick time and that request is unlawfully denied by the employer, or the employer requires the employee to find a replacement to cover the employee’s shift, the employee can recover $500.  If an employer retaliates against the employee for exercising this right, the employee is entitled to back pay and benefits, appropriate equitable relief and $500, which is increased to $2,500 if the employee was unlawfully discharged.  In addition, the Department of Consumer Affairs can also recover civil penalties ranging from $500 to $1,000 for each violation.

In order to avoid liability, employers with employees in New York City should ensure that their policies and procedures comply with these new paid and unpaid sick leave requirements.

For more information regarding the Earned Sick Time Act, including a review of your existing leave policies, or any other employment matter, please contact the Olshan attorney with whom you regularly work or either of the attorneys listed below.

This publication is issued by Olshan Frome Wolosky LLP for informational purposes only and does not constitute legal advice or establish an attorney-client relationship.  To ensure compliance with requirements imposed by the IRS, we inform you that unless specifically indicated otherwise, any tax advice contained in this publication was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any tax-related matter addressed herein.  In some jurisdictions, this publication may be considered attorney advertising.
Copyright © 2013 Olshan Frome Wolosky LLP.  All Rights Reserved.

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