• Hold That Sneeze: Paid Sick Time Likely Coming to New York City Next Year
  • May 22, 2013 | Author: Douglas T. Schwarz
  • Law Firms: Bingham McCutchen LLP - Santa Monica Office ; Bingham McCutchen LLP - New York Office
  • On May 8, 2013, the New York City Council passed the Earned Sick Time Act (“Act”). While Mayor Bloomberg is expected to veto the Act, the Act has sufficient support within the City Council to override any veto. The Act provides sick time, either paid or unpaid depending on an employer’s size, to certain employees who work a minimum of 80 hours in a calendar year. This alert describes the key provisions of the Act and concludes with basic advice for employers, including those who already provide paid sick time, as to how to comply with the Act.

    Effective Date

    The Act’s effective date depends on the health of the city’s economy. It is most likely to begin to apply to all covered employers on April 1, 2014, provided that the December 16, 2013 Independent Budget Office determination shows that the most recent New York City Coincident Economic Index or similar index published by the Federal Reserve Bank of New York is at or above its January 2012 level. Initially, only employers with 20 or more employees (full time, part time and temporary) will be required to provide paid sick time. All other covered employers will be required to provide unpaid sick time. Provided that the Act goes into effect on April 1, 2014, employers with 15 to 19 employees will need to provide paid sick time as of October 1, 2015. Presumably, if and when an employer crosses a threshold in terms of number of employees, it will be obligated to comply with the then existing requirement. If the economic index is below its January 2012 level as of December 16, 2013, the effective dates will be dependent upon when the January 2012 level is achieved and will be the subject of a future article.

    Covered Employees and Employers

    Full-time, part-time and temporary employees who work at least 80 hours per calendar year for most private employers are covered, except “hourly professional employees,” those who work for work study programs, and employees compensated by certain federal scholarships. Hourly professional employees are those licensed by the New York State Educational Department and who satisfy other conditions. The Act defines a calendar year as “a regular and consecutive twelve month period, as determined by an employer.” Domestic workers are covered by the Act. Employers employing domestic workers should contact employment counsel for specific requirements.

    Employers who provide employees (full time, part time and temporary) with paid time (sick, vacation or personal days) in an amount equal to or greater than that required by the Act and allow such time to be taken for the same reasons as permitted by the Act are not required to provide any additional sick time. In addition, the Act does not apply to employees covered by collective bargaining agreements if the provisions of the Act are waived and the agreement provides for comparable benefits.

    Paid or Unpaid Sick Time

    Subject to the Act’s unusual contingent effective dates, eventually all employers of 15 or more employees will be required to provide paid sick time in the amounts explained below, while employers of fewer than 15 employees will be required to provide unpaid sick time in the amounts explained below. Paid sick time must be paid at the same rate the employee earns at the time the employee uses the sick time.

    Amount of Sick Time

    Covered employers are required to provide a minimum of one hour of sick time for every 30 hours worked by an employee. Employers may require employees to take sick time in increments of no more than four hours per day and are not required to permit employees to take more than 40 hours of sick time per calendar year.

    Sick time will begin to accrue at the beginning of employment or on the effective date of the Act, whichever is later, and an employee may begin using sick time on the 120th calendar day following commencement of employment or following the effective date of the Act, whichever is later.

    Permissible Uses of Sick Time

    Employees may use accrued sick time for the following reasons:

    • The employee’s mental or physical illness or health condition or need for medical diagnosis, care or treatment of the same or need for preventive medical care;

    • To care for a family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition, or who needs preventive medical care; or

    • The closure of such employee’s place of business by order of a public official due to a public health emergency or such employee’s need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.

    For absences of more than three consecutive work days for the reasons listed in the first two bullet points above, an employer may require reasonable documentation justifying the need for the time off signed by a licensed health-care provider. Employers may not, however, require the disclosure of details relating to an employee’s or his or her family member’s medical condition as a condition of providing sick time. Any health information received about an employee must be treated by an employer as confidential.

    Forfeiture and Carry Over of Sick Time

    Employers may not require employees to forfeit sick time from one calendar year to the next. They must either permit employees to carry over such time from year to year or pay out such time at the end of the year. Employers may, however, require employees to forfeit unused accrued sick time upon termination.

    Breaks in Service/Transfers

    Employees who suffer a break in service of less than six months will, upon rehire, be credited with unused sick time that was forfeited upon termination. Employees who are transferred but remain employed by the same employer are entitled to retain or use all accrued sick time.

    Notice & Authorization to Return to Work

    Where the need for time is foreseeable, employers may require employees to provide up to seven days’ notice of the need to use sick time. If the need for sick time is not foreseeable, notice must be provided by an employee as soon as practicable.

    Notices

    Employers will be required to provide new hires with a written notice of employee rights under the Act. Employers may also conspicuously post the notice at the workplace. Template notices will be prepared in Chinese, English, French-Creole, Italian, Korean, Russian and Spanish and will be posted on the NYC Department of Consumer Affairs (the “Department”) website. Employers who do not provide notices upon hire may be fined up to $50 per employee.

    Recordkeeping Requirements

    Employers are required to retain records documenting compliance with the Act for two years and make these records available to the Department upon request.

    Retaliation

    Employers are prohibited from interfering with employee rights under the Act and retaliating against employees for taking sick time under the Act.

    Enforcement

    The Act will be enforced by the Department. No private right of action is provided for in the Act. Employees will have the right to file a complaint with the Department within 270 days of the date they knew or should have known of the alleged violation. The Department will investigate complaints and attempt to resolve them through mediation. If mediation does not prove successful, employers found to have violated the Act will be liable for a civil penalty payable to New York City in an amount not to exceed $500.00 for the first violation and, for subsequent violations that occur within two years of any previous violation, not to exceed $750.00 for the second violation and not to exceed $1,000.00 for each succeeding violation. Aggrieved employees may recover the following based on the violation:

    VIOLATION

    REMEDY

    • Not properly compensating employees for sick time

    • The greater of (a) three times the amount of wages that should have been provided or (b) $250.00

     

    • Refusing to provide sick time

    • Unlawfully conditioning sick time on finding a replacement

    • Requiring an employee to make-up sick time

    • $500.00

     

    • Retaliation (except discharge)

    • Full compensation including wages and benefits

    • $500.00

    • Equitable relief as appropriate

    • Retaliation/unlawful discharge

    • Full compensation including wages and benefits lost

    • $2,500.00

    • Equitable relief including reinstatement, as appropriate

     

    Advice for Employers

    Although the Act will take effect on April 1, 2014, at the earliest, employers should begin to review their leave policies to determine whether they satisfy the requirements of the Act. Many employers’ sick, vacation and paid-time-off policies apply only to full-time employees. Others provide only small amounts of paid-time-off for part-time employees, and it is routine for employers not to provide temporary employees with any paid-time-off. Because the Act requires sick time for all employees (full time, part time and temporary) who work 80 hours or more in a year, many employers may wish to consider revising their existing policies to avoid having to implement a separate policy to comply with the Act.

    Employers should also be mindful of the recordkeeping and anti-retaliation requirements of the Act.

    Finally, employers should keep an eye out for the template notices that must be given to new employees and, upon the effective date of the Act, should provide the notices along with the Wage Theft Prevention Act notices already required to be provided to new hires by the New York Department of Labor.