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New York City Council Establishes Mandatory Sick Time

10.01.13  |  By Peter L. Contini (Retired)

The Earned Sick Time Act[i] (“ESTA”), which goes into effect on April 1, 2014, requires most private employers, with a handful of exceptions, to provide employees with five days of paid sick time per year. Initially, ESTA only covers entities with twenty or more employees, whether they are part-time or full-time.[ii] By October 2014, that threshold requirement drops to fifteen or more employees.[iii] Additionally, smaller businesses, regardless as to the number of employees, will be required to provide unpaid sick time within the same timeframe. The following notice provides an overview to assist in determining whether ESTA applies to your business and the impacts it may have.

Applicability of ESTA and Accrual of Sick Time

ESTA applies to nearly all private employers with at least twenty employees except for employers within the manufacturing business and hourly professional employees.[iv] In ascertaining the size of a business, employers should count all employees that work in a given week.[v] For employers whose number of employees fluctuates each week, the size of the business is determined by calculating the average number of employees per week from the prior year. [vi] Such employees, whether part-time or fulltime, earn one hour of sick time for every thirty hours worked.[viii] The amount of sick time that may be earned per year may be capped by the employer at forty hours.[ix]

In order to receive the benefit, employees must have worked eighty or more hours in a given year.[vii]

Domestic workers are entitled to only two days of paid sick time per year in addition to any other paid sick time domestic workers are already entitled to under the law.[x]

ESTA’s scope of coverage will increase in October 2015, to where the threshold is fifteen employees for paid sick time[xi] and unpaid sick time will become obligatory for most businesses of any size.[xii]

Impact of ESTA

Importantly, employers that provide paid or unpaid leave under the same conditions and for the same purposes as ESTA, are not required to provide any additional sick time[xiii] so it is important to compare internal leave policies to those set forth by ESTA. Unused accrued sick time carries over from the previous year, but again an employer may limit the use of sick time to 40 hours per year[xiv] except that domestic workers’ two days of sick time does not carry over to the next year. The employer may also limit an employee’s use of sick time to four hours per day.[xv] Most importantly, ESTA does not require the employer to pay the value of his or her unused sick time at the end of employment.[xvi] The DCA has the authority to recover wages unlawfully withheld from an employee and to impose civil penalties ranging from $500 to $1000 for each individual violation.[xviii] However, employees are not granted a private right to sue under ESTA.

Employers that violate the provisions of ESTA will be subject to investigations by the New York City Department of Consumer Affairs following the filing of a timely complaint by an employee.[xvii]

Avoiding Illegal Use of Sick Time by Employees

In an effort to keep a business properly staffed at all times, employees can be required to give advance notice of their intent to use sick time. Employers can require up to seven days prior notice. In unforeseeable situations, employees need only provide notice as soon as possible.[xix]

The lawful uses of sick time by an employee are clearly delineated within ESTA. Employees may only take sick time for personal illness or health conditions and to take care of a family member that is ill or has a condition that needs attention by the employee.[xx] Where it is discovered that an employee improperly used sick time, employers have the right to discipline the employee.[xxii]

The employer is limited in its ability to obtain details of an employee’s need for sick time and whether it is being used properly. However, if an employee is out of work for three consecutive days, employers may require reasonable documentation to prove sick time is being used for proper purposes.[xxi]

ESTA requires employers to provide employees with a notice of his or her right to sick time and the ability to file complaints with the New York City Department of Consumer Affairs for violations of the law.[xxiii] 

Employee manuals should be updated to properly reflect ESTA and notifications of the change needs to be given to employees.

[i] Local Laws of the City of New York 2013 No. 46.
[ii] See 20 NYC Admin Code section 20-913.
[iii] See id.section 20-913(a)(1).
[iv] See id. section 20-912(j).
[v] See id. section 20-912(g).
[vi] See id.
[vii] See id. section 20-912(f).
[viii] See id. section 20-913(b).
[ix] See id. section 20-913.
[x] See id. section 20-913(d)(2).
[xi] See id. section 20-912(a).
[xii] See id.
[xiii] See id.
[xiv] See id. section 20-913(h).
[xv] See id. section 20-913(g).
[xvi] See id. section 20-913(i).
[xvii] See id. section 20-924(a).
[xviii] See id. section 20-924(b).
[xix] See id. section 20-914(b).
[xx] See id. section 20-914(a)(1)-(2).
[xxi] See id. section 20-914(c).
[xxii] See id. section 20-914(f).
[xxiii] See id. section 20-919.

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