The impact of the COVID-19 pandemic on the workplace is prompting changes in laws governing  employee benefits. Significantly, a new bill was signed into law on September 28, 2020, by Mayor Bill de Blasio that, among other things, revises the amount of sick leave that New York City employers are required to provide. The law amends the New York City Earned Sick and Safe Time Act (ESSTA) to make it more consistent with the New York State Sick Leave Law (NYSSLL).

Under the current law, employers with five or more employees in New York City must provide each of them with 40 hours of sick leave per year. The  amendments to the ESSTA  implement the following requirements, effective January 1, 2021:

  • Employers with 100 or more employees must provide up to 56 hours of paid leave.
  • Businesses with a net income of $1 million or greater and four or fewer employees must provide paid sick leave.
  • Employers with four or fewer employees who made a net income of less than $1 million in the prior tax year must provide 40 hours of unpaid sick leave.

Sick leave covers mandatory or precautionary COVID-19 quarantine as well as time used for medical treatment or testing. Employees may use their sick leave for themselves, to care for a family member or to care for their child in the event of a school closure. Additionally, recently hired employees no longer are subject to a 120-day waiting period and may begin using leave immediately upon accrual.

The amendments also impose reporting requirements on employers. Effective September 30, 2020, employers must report an employee’s accrued and used sick leave on their pay statement, in addition to listing the total balance of accrued safe and sick leave. Failure to comply can result in an employer incurring a $50 fee per employee affected.

While an employer may request medical documentation if an employee has been out of work for more than three days in a row, the amendment mandates that the employer reimburse the employee for reasonable costs incurred in obtaining the documentation.

The recent amendments also strengthen the ESSTA’s anti-retaliation provisions by broadening the definition of an “adverse action “ that penalizes an employee for exercising his or her rights under the law. The amendments implement greater enforcement mechanisms, authorizing the Corporation Counsel of the City of New York to commence legal actions against employers who have a pattern of engaging in ESSTA violations.

Rubenstein & Rynecki represents clients in a variety of employment law matters, including disputes over sick leave and other benefits. If you have questions about your rights as an employee under city or state law during the COVID-19 crisis, schedule a consultation at our Brooklyn office by calling (718) 522-1020  or  contact us online.