New York City employers need to navigate the intricacies of the city’s and state’s largely complementary but not entirely consistent paid sick and safe time requirements. Recent legal changes mean that employers that have not done so in the past several months will once again need to update their policies.
Amount of Paid Sick and Safe Time Depends on Employer Size
The newest version of paid sick and safe time at the state and city levels has varying thresholds of employee eligibility, dependent on the size of the employer. Employers with fewer than five employees need provide only unpaid sick and safe time, unless the employer had $1 million or more in net income in the preceding year. Employers with five to 99 employees must provide up to five days per year of paid sick and safe time, while those with 100 or more employees need to meet an annual threshold of seven days of paid sick and safe time.
New regulations from the city that took effect October 15, 2023 align with the state law and provide that employer size should be determined by counting employees nationwide and using the highest count of employees at any point during the calendar year, including part-time employees and employees on leave who are anticipated to return to active employment at a future date. If an organization’s employee headcount increases to the next paid sick and safe time threshold at some point during a calendar year, the entitlement to paid sick and safe time at that higher threshold increases as of that date. If the organization’s employee headcount declines to a lesser threshold, the entitlement to paid sick and safe time does not get adjusted downward until the next calendar year.
Yes, you read that correctly – add more employees and your paid sick and safe time liability may increase effective immediately. Reduce employee headcount, and your paid sick and safe time liability remains at the higher threshold for the balance of the year.
If It’s Not in Your Policy, You Likely Cannot Enforce It
New York City has, for some time now, uniquely required employers to put in writing in their policies all the details of paid sick and safe time usage to which they may be holding employees accountable. Examples of that include:
- minimum duration of paid sick and safe time that can be taken at any one time, which can be fixed at as long as four hours, but only if the policy says that;
- requirements for calling out sick – who to contact and by when, with recognition that some absences are foreseeable (and can require greater notice) while some are not; and
- requirements to provide supporting documentation for time off taken as sick and safe time;
- delineation of the consequences for not providing the required notice or documentation, or for misusing sick and safe time; and
- the employer’s approach to accrual and carryover of time.
The city also requires that the policy reassure employees about the confidentiality of medical or personal information they provide, and that the employee need not detail the medical condition or personal situation prompting the use of sick and safe time. Employers that rely on paid time off or similar policies to meet the requirements of the city paid sick and safe time laws must ensure that those policies grant employees all the rights provided under the city law and notify employees that the alternative paid time off policy is meant to meet the sick and safe time law requirements.
Requests for Supporting Documentation May Come at a Cost
New York City employers that request documentation in support of the use of sick and safe time must reimburse the employee for any fee charged by the healthcare provider or other certifying party. Employers also, as a reminder, cannot preclude employees from returning to work pending receipt of the documentation (unless otherwise required by law), but they can delay paying for the sick and safe time until satisfactory documentation is provided, as long as the employee had notice of that requirement in the employer’s written policy. Also note that supporting documentation cannot be requested for absences of less than three days’ duration.
Pay Stubs or Their Equivalent Need to Provide a Running Balance of Sick and safe time
New York State requires employers to include in an employee’s payroll records the amount of sick and safe time accrued and used by each employee on a weekly basis, and to provide a summary of the annual accrual and usage totals when requested by the employee. New York City takes that a step further and requires employers to provide a breakdown each pay period of:
- the amount of paid sick and safe time accrued and used during the pay period;
- the employees total balance of accrued sick and safe time, and
- the amount of accrued sick and safe time available for the employee to use that calendar year.
This breakdown generally should appear on the pay stub. However, if an employer pays employees electronically then the requirement can be met by electronically alerting the employee each pay period as to where to find the accrual and usage information, and that information needs to be accessible to employees even outside the workplace.
Incomplete Compliance Can Be Costly
The New York City regulations further create a presumption that employers that fall short in one of three areas:
- not distributing a written sick and safe time policy;
- failing to maintain records of usage and available balances that are accessible to the employee; or
- placing other impermissible restrictions on usage (such as by requiring notice or documentation that is not authorized)
are presumed to have denied employees the time to which they are legally entitled, in violation of the law. Poor record keeping or failure to distribute a written policy can therefore mean fines and penalties for New York City employers.
By Tracey I. Levy