• Trouble Brewing for Employers as New York City Council Reintroduces Paid Sick Leave Law
  • April 6, 2010 | Authors: Susan M. Corcoran; Richard I. Greenberg
  • Law Firms: Jackson Lewis LLP - White Plains Office ; Jackson Lewis LLP - New York Office
  • New York City Council Member Gale Brewer, along with more than 30 co-sponsors, has reintroduced on March 25, 2010, the Earned Paid Sick Leave Act for debate and consideration.   Council Member Brewer introduced similar legislation in 2009, but while committee hearings were held, the Council never voted on the measure.
    If passed, New York private-sector employers would join San Francisco, California, and Washington, D.C., employers and be mandated to provide employees a minimum number of paid sick days each year.  The proposed bill’s effect would be far reaching, affecting the lives of up to 1 million workers in the City.

    Proposed Coverage and Fine

    Under the proposed legislation, small businesses are required to provide employees, whether full- or part-time, who work more than 80 hours in a calendar year, with up to five sick days per year and larger businesses are required to provide up to nine sick days per year.  Accrual of hours begins at the commencement of employment, but sick days cannot be used until an employee has worked for 90 days.
    An employer who willfully violates the notice and posting requirements of the law would be subject to a civil fine in an amount not to exceed $100 for each separate offense.

    Reasons for Leave

    Covered employees may use accrued time for various reasons, including:

    • For their own mental or physical illness or diagnosis or preventive medical care;
    • To take care of a spouse, domestic partner, child, parent, grandparent or domestic partner with a mental or physical illness, injury or health condition who needs medical diagnosis, care, or treatment or who needs preventive medical care; or
    • To deal with issues related to domestic violence.

    Prompted by the H1N1 (swine) flu outbreak, the bill also would allow employees to use time off during the closing of a school attended by their children or the employees’ place of business due to a public health emergency.

    Procedural Obligations

    The bill would impose procedural obligations on both employers and employees.  Employers would be required to provide notice of employees’ entitlement to paid sick time in both English and any other language that is the first language spoken by at least five percent of the employer’s workforce, the amount of paid sick time, and the terms regarding use of sick time. Employers would also be required to notify employees that they will not be retaliated against for requesting paid sick time and that they have a right to file a complaint or bring a civil action if sick time is denied or they are retaliated against for requesting sick time.
    Employees would be required to provide reasonable notice of the need to use paid sick time.  Where the need is foreseeable, employees would be required to provide up to seven days’ advance notice.  Where the need is not foreseeable, employees would be required to provide notice as soon as practicable.  Employees also would be required to provide documentation for leave of more than three days.
    Exclusions would apply for certain employees covered by a collective bargaining agreement.

    Compared to 2009 Proposal

    The bill resembles the version that was considered originally in 2009, but includes the following changes:

    • It expands the definition of “small business” from fewer than 10 employees to fewer than 20. 
    • It limits the individuals for whom leave can be taken to provide care and makes a related change in the definition from “family member” to “relative.”
    • Requires employers to retain records documenting hours worked by employees and paid sick time accrued and taken by employees, for a period of three years rather than five.

    Broad Support Seen

    A broad-ranging coalition, which includes small business owners, public health experts, public interest groups, and unions, has aligned in support of the bill.  A spokesman for the Working Families Party, which is lobbying strongly for the bill’s passage, stated, “President Obama's health care reform is a big leap forward, but if you're like the 48% of New York City's workers that can't take a day off without losing pay, seeing a doctor when you need to may still be impossible.”