As is common in the United States, New York never required employers to provide a minimum amount of sick leave days to their employees. However, beginning January 1, 2021, the New York State Sick Leave Act requires New York employers to provide a new sick leave benefit. But what is this new law? And when do you take sick leave versus New York’s short-term disability (DBL) and Paid Family Leave (PFL)? In this post, we break down the essential information you need to know.
What is the New York State Sick Leave Act?
The amount and type of sick leave (whether paid or unpaid) the new Sick Leave Act requires employers to provide is based on the employer’s size, as follows:
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Employer Size
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Minimum Sick Leave
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0-4 employees and net income < $1 million
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40 hours unpaid
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Ø
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0-4 employees and net income > $1 million
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40 hours paid
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$
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5-99 employees
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40 hours paid
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$
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100+ employees
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56 hours paid
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$
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Hours began accruing effective September 30, 2020 and accrue at a rate of 1 hour for every 30 hours worked, meaning the available sick leave time builds over time. An employer can choose to frontload all sick time at the beginning of the year, which provides the annual amount of available sick leave starting on the first of the year. In either scenario, employees cannot begin using this benefit before January 1, 2021.
What does this mean for employees who already receive sick leave?
Most likely, nothing will change for employees who already receive sick leave through their job, unless the new, required minimum amount is more than their current sick leave or if the employer decides to revise their sick leave policy.
How does NYS Sick Leave compare to NY’s DBL and PFL?
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Component
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NYS Sick Leave
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DBL
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PFL
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How long does it cover?
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Up to 40/56 hours in a calendar year depending upon employer size (reference chart above)
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Up to 26 weeks in a 52-week period
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Up to 12 weeks for leaves starting in 2021
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How much does it pay?
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Unpaid or full salary depending on the size of the employer. (reference chart above)
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50% of the employee’s average weekly wage, capped at $170 per week
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67% of the employee’s Average Weekly Wage (AWW), capped at 67% of the NY State Average Weekly Wage (NYSAWW) – or $971.61 in 2021.
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How is it paid?
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Per incremental period, i.e., 15 minutes, 1, 4 or 8 hours up to 40/56 hours – the minimum increment of leave is set by the employer but can be no more than 4 hours
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Per week
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Continuous/per week or intermittent/per day
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What can it be used for?
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Employee’s own or covered family member’s mental or physical illness, or injury, or diagnosis, care, treatment, or preventive care for employee’s or covered family member’s mental or physical illness or injury;
Absence related to employee’s or covered family member’s status as a victim of domestic violence, family offense, sexual offense, stalking, or human trafficking;
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Employee’s own off-the-job injury or illness, including pregnancy and after childbirth complications
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Employee to care for others – bonding with a new child, caring for a seriously ill family member or preparing for military exigencies.
Read more about PFL Eligibility here.
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What is the definition of a covered family member?
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-an employee’s Child (biological, adopted, or foster child, a legal ward, or a child of an employee standing in loco parentis) or the Child of an employee’s spouse or domestic partner,
-Spouse or domestic partner
- Parent (biological, foster, step, adoptive, legal guardian, or person who stood in loco parentis when the employee was a minor child) or in-laws or parent of domestic partner
-Grandparent or Grandchild
-Sibling
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N/A
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-Child
-Domestic Partner’s Child
-Spouse or Domestic Partner
-Parent
-In-laws (not for military exigencies)
-Grandparent or Grandchild (not for military exigencies)
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Period of Time Worked before leave becomes available to employee
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1 hour for every 30 hours worked or 40/56 hour up-front sick leave allotment
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4 consecutive weeks for Covered Employer (25 days for part-timers). There is a 7-day waiting period before benefits become available.
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26 consecutive weeks at the same Covered Employer (175 days for part-timers) Read more about PFL Eligibility here.
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Covered Employers include:
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All private-sector employees in New York State, and employees of charter schools, private schools, and not-for-profit corporations are covered
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Private sector employers in New York State with more than one employee, includes domestic servants in the home
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Coverage Type
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Sick Leave
(paid or unpaid)
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Insurance benefit
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Insurance benefit
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Coordination of DBL/PFL with Time Off Policies
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While on NYS Sick Leave:
-- You cannot collect DBL
-- You cannot collect PFL
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Some
You can collect PTO, vacation days, but not the new Sick Leave time in addition to DBL.
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Either-or
PFL is not payable if you’re receiving your normal pay via use of accrued PTO, vacation time, or sick time, including the new required minimum Sick Leave.
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So how does DBL/PFL coordinate with time off like NYS Sick Leave?
The new, required minimum time of employer-provided sick leave does not change how currently existing coordination of time off and DBL/PFL benefits works. It simply adds another bucket of leave time to an employee’s total available time off that needs to be considered when taking short-term disability or Paid Family Leave.
Another layer of complexity may come into play depending on your employer’s internal policies with FMLA (Family Medical Leave Act). Leave laws are all quite different and vary according to need, length of time and type of leave. Be sure to speak to your HR contact or employer first, to determine which type of leave is right for you and when to submit an insurance claim for DBL or PFL.
For further details on New York State’s Sick Leave law, please visit the NYS website here.
This blog post is for informational purposes only and is not intended to provide legal counsel. Please consult with an appropriate professional for legal and compliance advice. Any PFL information is as of the blog post’s date stamp; it is based on the applicable statutes and regulations, and may change as regulations evolve or NY State issues guidance regarding Paid Family Leave regulations. Have more questions? Email us at pflquestions@shelterpoint.com