Earned Sick Time

Earned Sick Time Act

26 Feb 2016

The Earned Sick Time Act went into effect back on April 1, 2014, and with this new legislation are several responsibilities of which employers should be aware. Besides the necessity for employers to distribute the “Notice of Employee Rights” to all employees and to maintain accurate records for the amount of hours worked and sick time used, employers have other responsibilities as well.

Concerning sick leave accruals and carryovers, employers must allow employees to accrue one hour of sick leave for every 30 hours worked. The maximum of sick time accrued is 40 hours in a calendar year, and the accrual of sick time in a new calendar year is completely independent of any sick time accrued and/or used in a previous calendar year.

Employers are not required to provide paid sick leave for days on which the employer is closed due to the weather, or on days for which the employee is absent or late due to the weather.

Employers must provide paid sick leave if they have more than 5 employees each of whom work more than 80 hours in a calendar year. The sick leave should be paid at the employee’s regular hourly rate but no less than the minimum wage of $8.75 per hour. For employers of one or more domestic workers who work more than 80 hours per calendar year and have been employed at least a year, the domestic employee must be provided up to 2 days of paid sick leave per calendar year at their regular hourly rate.

According to NYC Department of Consumer Affairs (“DCA”), Employees who are not covered by the law:

      • Those who work 80 hours or less in a calendar year
      • Students in federal work-study programs, and employees who are compensated through qualified scholarship programs
      • Physical therapists, speech therapists, occupational therapists, and audiologists if they are:
        • licensed by New York State Department of Education,
        • can accept or reject any assignment referred to them,
        • they call in for assignments at will,
        • determine their own work schedule, and
        • are paid an average hourly wage which is at least four times the federal minimum wage.
        • Independent contractors who cannot be considered employees
      • Certain employees subject to a collective bargaining agreement
Additionally, the records must be maintained for at least three years and must be made available upon notice from DCA.

The DCA has started performing audits of violations of the Earned Sick Time Act. We have seen violations in situations where staff are paid on a fee for service basis (such as SEIT, early intervention, home care, etc.), where staff were not notified of their earned sick time. The penalties of noncompliance are costly and the audits are very disruptive. Make sure you comply. If you have any questions, please contact us.

Editor’s Note-

The regulation concerning the Earned Sick Time Act only pertains to New York City based organizations and to Long Island-based organizations only to the extent that their employees work in NYC (meaning, any hours worked by those employees in NYC count towards the eligibility for paid sick leave, however, hours worked in Long Island or Westchester county do not count towards eligibility).

Additionally, concerning the carry-over of unused sick time, if an employer wishes to not carry-over the unused sick time from the previous year, the employer must:

  1. pay the employee for any unused sick time (and this amount must not be for any less than the amount of sick time actually earned),
  2. frontload 40 hours for use on the first day of the next calendar year (please note that a switch from accrual to frontload must include a payout of unused sick time from the previous year). The maximum amount of carry-over is 40 hours; the employer is not required to allow the carry-over of more than 40 hours, and, even with the carry-over, the employer can limit the usage of sick time to 40 hours in a calendar year.

If you are already providing for sick time or other comparable paid time off for your staff that is at least what is required under the regulations, you do not need to offer them additional paid time off.

If you would like to learn more about this topic, please contact: