The New York City Earned Sick Time Act, originally enacted in June 2013, has been amended effective March 4, 2016. The Earned Sick Time Act generally requires employers with five or more employees in New York City to provide eligible employees up to 40 hours of paid sick leave each year for themselves or eligible family members. The new rules clarify parts of the Earned Sick Time Act, establish requirements to carry it out and meet its goals, and provide guidance to covered employers and protected employees.
Written Sick Time Policies
Employers may no longer distribute the Notice of Employee Rights promulgated by the Department of Consumer Affairs in lieu of distributing or posting their own written sick time policies. But it is important to note that distribution of the Notice of Employee Rights is still required.
The Amended Act further requires that an employer’s written sick time policies state, at a minimum:
- The employer’s method of calculating sick time. If, on the first day of the calendar year, the employer provides employees with an amount of sick time that meets or exceeds the requirements of the Act by the employee’s 120th day of employment (known as “frontloading”), the written policy must specify the amount of frontloaded sick time to be provided. If the employer does not frontload, the policy must specify when accrual of sick time starts, the rate at which an employee accrues sick time, and the maximum number of hours an employee may accrue in a calendar year.
- The employer’s policies regarding the use of sick time, including any limitations or conditions. Written policies must now include: (1) any requirement that an employee provide notice of a need to use sick time; (2) any requirement for written documentation or verification of the use of sick time, and the employer’s policy regarding consequences if an employee fails to provide such documentation; (3) any minimum increment or fixed period for the use of sick time; and (4) any policy on employee discipline for misuse of sick time.
- The employer’s policy regarding carry-over of unused sick time at the end of an employer’s calendar year.
If an employer fails to provide an employee with a copy of its written policy, the employer cannot deny sick time or payment of sick time to the employee based on non-compliance with the policy.
Employer Recordkeeping
Employers are now required to maintain records demonstrating compliance with the requirements of the Earned Sick Time Act, including records of any policies required by the Act, for a period of three years. Employers must also maintain contemporaneous and accurate records that show, for each employee:
- The employee’s name, address, phone number, employment start date, employment end date (if any), rate of pay, and whether the employee is exempt from overtime requirements;
- The hours worked each week by the employee, unless the employee is exempt from overtime requirements;
- The date and time of each instance of sick time used by the employee and the amount paid for each instance;
- Any change in the material terms of employment specific to the employee; and
- The date the Notice of Employee Rights was provided to the employee and proof that the Notice of Rights was received by the employee.
There is a penalty involved if an employer fails to follow these much more detailed requirements. An employer’s failure to maintain, retain or produce a record that is “relevant to a material fact” alleged by the Department in a notice of hearing or these rules, creates a “reasonable inference” that such fact is true.
Minimum Increments and Fixed Intervals
Employers may now set fixed periods of 30 minutes or any smaller amount of time for the use of accrued sick time beyond the minimum increment (not to exceed four hours per day) and may require fixed start times for such intervals. The Notice of Adoption of Rule issued by the Department of Consumer Affairs provides the following example: An employer maintains a four-hour minimum sick time increment and now requires that employees use sick time in 30 minute intervals that start on the hour or half-hour. An employee who is scheduled to work 8:00 a.m. to 4:00 p.m. schedules a doctor’s appointment for 9:00 a.m. and notifies the employer of her intent to use sick time and return to work the same day. If the employee does not return to work until 12:17 p.m., the employer can require the employee to use four and a half hours of her accrued sick time and require her to begin work at 12:30 p.m.
Temporary Help Firms
The Act also now defines the term “temporary help firm,” as an organization that recruits and hires its own employees and assigns those employees to perform work or services for another organization to: (i) support or supplement the other organization’s workforce; (ii) provide assistance in special work situations including, but not limited to, employee absences, skill shortages or seasonal workloads; or (iii) perform specific assignments or projects. When a temporary help firm places a temporary employee in an organization, the temporary help firm is now solely responsible for compliance with all of the provisions of the Earned Sick Time Act for that temporary employee, regardless of the size of the organization where the temporary help firm places the employee.
Penalties
If the Department finds that an employer has a policy or practice of not providing or refusing to allow employees to use paid sick leave required under the Act, employers now will be subject to penalties for “each and every employee” affected by the policy.
Employer Considerations
In light of these recent amendments and the increased penalties for non-compliance with the Act, New York City employers should ensure that part of their “spring cleaning” involves a thorough review of their existing written sick time policies and recordkeeping practices. Such a review with counsel should include preparation of compliant employee notice materials and recordkeeping forms.