As business owners and managers, we’re certain you’re familiar with Labor Law § 196-b which governs which companies have to provide unpaid and/or paid time off for sick workers, called New York Paid Sick Leave (PSL). It’s a crucial aspect of your compliance duties as an employer. So it’s important to ensure that you properly implement the law in your workplace to protect yourself from potential risk.
Today, we’re featuring some common issues and questions we receive regarding PSL.
When Employers Must Provide PSL
As an employer, you may not be required to provide PAID sick leave, but you’re required to provide unpaid sick leave no matter the size of your workforce. For employers with four or fewer employees and a net income of less than $1 million in the last tax year, each employee gets up to 40 hours of unpaid sick leave per calendar year.
Once a company has a net income of more than $1 million in the last tax year, even if it has fewer than five employees, it must offer paid sick leave to employees.
Employers with more than five employees must provide paid sick leave.
How Much Sick Leave Is Sufficient
Similar to whether or not an employer must provide paid sick leave, the amount of sick leave required annually depends on the size of the workforce.
For employers with four or fewer employees and a net income greater than one million dollars in the last tax year, each employee is entitled to up to 40 hours of paid sick leave in each calendar year.
For employers with between five and 95 employees, each employee gets up to 40 hours of paid sick leave each calendar year.
Last, for employers with 100 or more employees, each employee is entitled to up to 56 hours of paid sick leave.
Although this law has existed for several years now, it’s often easier to have a visual.
Here’s a quick chart to determine the duration of sick leave your employees receive and whether they must be paid for the sick leave.
| Hours of Sick Leave Provided | Paid or Unpaid? | |
| Fewer than four employees and net income less than $1 million | 40 | Unpaid |
| Fewer than four employees but net income greater than $1 million | 40 | Paid |
| 5-95 employees | 40 | Paid |
| 100+ employees | 56 | Paid |
When Do Employees Receive Sick Leave?
You can choose to provide your employees with either the full amount of sick leave required by the law at the beginning of each calendar year or you can choose an accrual system for your employees to receive sick leave hours.
If you provide the full amount of leave on January 1st each year, you can’t later take away leave if an employee ends up working fewer hours. So although it may be administratively easier than the accrual method, beware of using this system.
In an accrual system, the employee must earn leave at a rate of at least one hour for every 30 hours worked.
Safe Leave Is Covered Too
This is part of the law, too, although it’s often overlooked.
Safe leave is when a worker isn’t at work because either the worker or her family member has been the victim of domestic violence, a sexual offense, family offense, stalking, or human trafficking. An employee may use PSL due to any of the following reasons:
- To obtain the services of a domestic violence shelter, rape crisis center, or similar services program;
- To participate in safety planning, temporary or permanent relocation, or to take other actions to increase the safety of themselves or a family member;
- To meet with an attorney or other social services provider to obtain information and to prepare for or participate in a criminal or civil proceeding;
- To file a complaint or domestic incident report with law enforcement;
- To meet with a district attorney’s office;
- To enroll children in a new school; and
- To take any other actions necessary to ensure the health or safety of the employee or their family member.
Safe leave allows an employee to use their sick leave hours for any of these situations. Take note that you can’t stop them from using sick leave for these reasons, even though you might not consider them to be “sick” under the traditional definition of the word.
Confirming The Leave Is Legit
As an employer, you may only request written verification from an employee confirming their eligibility to take sick leave if the employee uses sick leave on three or more consecutive and previously-scheduled shifts or workdays.
If the sick leave lasts fewer than three consecutive days, you can’t request any verification in connection with sick leave.
The written verification you may request is limited to an attestation from a licensed medical provider supporting the need for the employee’s sick leave or an attestation from the employee herself that she was eligible to take sick leave. You can’t require that they explain the nature of the illness or any details that necessitated the use of safe leave.
We understand that it’s difficult when you can’t ask employees for what’s essentially evidence of their proper use of sick leave. New York recognizes this, too, so you’re allowed to discipline an employee who uses sick leave for purposes other than those provided for under law or who lies to their employer in connection with taking sick leave.
But if the employee needs and takes sick leave, they can’t be disciplined or retaliated against. The State makes it easy for them to report you if this happens.
Notice From Employees
The law and its regulations don’t specify whether employees are required to provide advance notice prior to using sick leave for foreseeable instances (e.g., scheduled doctor’s appointments). Moreover, in responding to public comments, the New York Department of Labor rejected suggestions to allow employers to require advance notice for foreseeable events.
In their reasoning, the DOL claimed it would be difficult to create different categories of foreseeability for employers and employees. As a result, so long as your employee notifies you prior to the beginning of her shift, the notice is timely.
Penalties for Not Providing PSL
Under New York Labor Law, failure to provide sick leave, like any other required employee benefit, is the equivalent of not paying wages. If you fail to provide employees with the proper sick leave required under the law, then, you may be subject to civil actions and criminal penalties.
Now What?
As always, we’re here as a ready resource if you have questions. Don’t hesitate to reach out – use social, call us, or shoot us an email at info@coppolalegal.com.
We’re here to help.
