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The New York City Earned Sick Time Act Becomes Effective April 1, 2014.

The Act mandates that private sector employers, with few exceptions (businesses that manufacture products onsite e.g. bakeries, factories, mills, tailors), provide a minimum level of paid and/or unpaid sick leave to any full or part time employee working within New York City, who has worked more than 80 hours in the given calendar year (including domestic workers as of October 1, 2015).

The Act does not apply to independent contractors. With respect to employees working under a CBA in effect on April 1, 2014, the Act becomes effective upon the expiration of the CBA. Employers with leave policies meeting or exceeding the Act’s need not change those policies, though they must be sure their policies meet or exceed each of the Act’s provisions, including accrual and carry over. The key provisions of the Act are as follows:

1) Employers with 20 or more employees (the threshold), whether full time, part time, or temporary, must provide at least 1 hour of paid sick leave per 30 hours of work, up to 40 hours per calendar year, which employees may begin to use on the later of the 120th day after the commencement of employment or the 120th day after the commencement of the Act. All employees of a franchise sharing an owner are included in calculating the threshold. On October 1, 2015, the threshold drops to 15 employees. Employers below the threshold, with even 1 employee, must provide sick leave on at least the same terms of the Act, except that the sick leave may be unpaid.

2) As of October 1, 2015, domestic workers working more than 80 hours in the given calendar year are entitled to two days of paid sick leave after one year of work with the same employer. Unlike other employees, domestic workers’ paid sick leave does not roll over if unused. This is in addition to the three days of paid rest leave they are entitled to under Labor Law section 161(1).

3) The Act does not apply to a) construction and grocery industry employees working under a collective bargaining agreement expressly waiving the Act’s provisions or b) other employees working under a collective bargaining agreement expressly waiving the Act’s provisions and providing comparable benefits in the form of paid time off, whether as leave, compensation, employee benefits, or a combination thereof, including but not limited to vacation time, sick time, personal time, holidays, and Sunday premium rates.

4) Employers must provide written notice of employees’ rights under the Act, including accrual and use during the calendar year and the anti-retaliation protections and complaint procedures, at the commencement of employment. The Department of Consumer Affairs is to produce such a notice, which employers must provide in English and any other language spoken by a given employee, when available on the Department of Consumer Affairs web site. The penalty for a wilful violation of this provision is $50 per employee the employer failed to provide notice. Moreover, employers must document their compliance with the Act and maintain those records for at least two years.

5) Employees may use sick leave when absent from work due to the employee’s or a family member’s physical or mental health, or the closure of the work place or of a school or care provider of the employee’s child, due to a public health emergency. Family members include the employee’s spouse or domestic partner, parents, and children, including the parents and children of the spouse or domestic partner.

6) Employers may require employees to provide reasonable notice of the need to use sick leave (up to 7 days if the need is foreseeable, as soon as possible if the need is not) and written confirmation of sick leave used, including confirmation from a health care provider for absences of more than three consecutive work days. Employers may not seek information concerning the specific reason for using sick leave except as required by other laws, including the FMLA (note: Sick leave may run concurrently with FMLA leave).

7) Employers may not require employees to make up for sick leave, though employees may, upon mutual consent, avoid using sick leave by making up for the time off during the 7 days preceding or following the time off. In this case, the employee must be paid over time, if applicable. Employers may require employees to use sick leave in minimum increments not to exceed 4 hours.

8) Unused sick leave carries over year to year, though employers need not provide a given employee more than 40 hours of paid sick leave in a given calendar year. Employers need not pay employees for unused sick leave, though employees may, upon mutual consent, accept a year end payment for [in lieu of carrying over] unused sick leave. In this case, the employer must allow the employee to begin using the sick leave for the next calendar year on January 1 of that year, though not yet earned.

9) Anti-retaliation protections apply to employees’ good faith attempts to exercise their rights under the Act, and any person alleging a violation of thereof may file a complaint with the Department of Consumer Affairs within 270 days of the date they knew or should have known of the alleged violation. Penalties include a) the greater of 3 times the wages due for sick leave used but unpaid or $250, b) $500 per instance of sick leave requested but denied, or in which, without mutual consent, the employer requires the employee to make up for sick leave, c) for each instance of retaliation (excluding termination), full compensation, including lost wages and benefits, $500, and appropriate equitable relief, and d) for each instance of unlawful termination, full compensation, including lost wages and benefits, $2,500, and appropriate equitable relief, including reinstatement. In addition, employers will be liable for civil penalties of $500 for a first violation, $750 for a second violation within two years of a prior violation, and $1,000 for subsequent violations within two years of a prior violation.

On January 17, 2014, Mayor de Blasia proposed to expand the Act by a) reducing the threshold for paid sick leave to 5 employees as of April 1, 2014, b) eliminating the exemption for manufacturers, c) including grand-parents, grand-children, and siblings as family members, and d) granting the mayor authority to designate an agency other than the Department of Consumer Affairs to enforce the Act. The City Council has introduced but not yet voted on amendments to the Act. The bottom line is that, until your CBA expires, the Act has no effect on Union employees.

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