NYC Sick Time Law Has Already Changed; Are You Up To Date?
Many employers in New York City (“NYC”) are very familiar with NYC’s Earned Sick Time Act (“Act”) and many have sick time policies in place. What may surprise employers is that the “proposed rules” for the Act are now final and as a result, there are changes that must be made to policies that only comply with the Act itself. Some of the provisions of the new rules which may prompt changes to previously compliant policies are:
- Although employers can set a minimum increment for the use of sick time, not to exceed four hours per day, the rules add the provision – provided such minimum increment is reasonable under the circumstances. The rules include the following example:
- An employee has worked eighty hours and more than one hundred twenty calendar days have passed since the employee’s first day of work for the employer. The employer has set a minimum increment of four hours per day for use of sick time. The employee has not yet accrued four hours of time, but is entitled to use the time he or she has already accrued. Under these circumstances, it would not be “reasonable under the circumstances” for the employer to require the employee to use a minimum of four hours of sick time as the minimum increment.
Employers who have policies stating the sick time must be taken in four hour increments should add the magic words “provided such minimum increment is reasonable under the circumstances” to the policy.
- Generally, employers need not have a written sick time policy. However, if employers are going to require advance notice of the need for sick time, they must provide a written policy to employees. If there is a policy that requires notice of need for sick time where the need is not foreseeable, the policy must also contain the procedure employees must follow. The policy must include any consequences an employee may face based on a failure or delay in providing the notice and corresponding documentation. Of particular importance is that if an employer does not provide the written policy to employees, the employer cannot deny sick time based on the employee’s non-compliance with the policy.
- An employer can require reasonable written documentation that the sick time was used for an appropriate purpose where the employee misses more than three consecutive work days. The rules make clear that “work days” means days or parts of days that the employee would have worked but for the absence. Again, this must be included in the employers’ written policy as well as any consequences resulting from an employee’s failure or delay in providing the documentation/verification.
- Where an employer requires employees to confirm their use of sick time for an absence or to provide documentation from a licensed health care provider for an absence of three consecutive work days, the employer need not pay the sick time until the employees has provided such documentation/verification. Since non-payment of sick time is a consequence of failing to provide notice or delaying providing notice, this too would have to be included in the written sick time policy in order to use nonpayment as a consequence.
There are many other provisions in the rules that address various issues such as joint employer, sale of business, and distribution or posting of policies. Employers should review the rules to ensure they are in compliance with the Act. A copy of the final rules is available at
Meanwhile, the Department of Consumer Affairs, the NYC agency tasked with implementing the law, has already responded to several inquiries about the Act through issuing opinion letters. Those letters are available at
http://www.nyc.gov/html/dca/html/law/legal_interpretations.shtml#PaidSickLeaveLaw under the “Paid Sick Leave Law” section.
Brody and Associates regularly advises management on complying with local, state and federal employment laws. If we can be of assistance in this area, please contact us at firstname.lastname@example.org or 203.965.0560.