On June 26, 2013, the New York City Council, by a vote of 47 to 4, overrode Mayor Michael Bloomberg’s veto of the Earned Sick Time Act, Local Law 46 of 2013 (the “New York City Earned Sick Time Act,” the “Earned Sick Time Act,” the “Act,” or the “NYCESTA”). Effective April 1, 2014, and provided that certain economic benchmarks are met, the Earned Sick Time Act requires employers in New York City which employ 20 or more employees to give each employee one hour of paid sick time for every 30 hours worked by the employee, up to five days (40 hours) of paid sick time per calendar year.
Further, effective October 1, 2015, and provided that the same economic benchmarks are reached, the Act requires businesses in New York City which employ 15 to 19 employees to afford, to each employee, one hour of paid sick time for every 30 hours worked, up to five days (40 hours) per year.
The Earned Sick Time Act does not apply to, among other excepted workers, independent contractors, governmental employees, and employees in the manufacturing industry. Apart from these exceptions, the Act applies to any employee who works within New York City for more than 80 hours in a calendar year.
In general, workers may carry over, from one calendar year to the next, accrued, unused paid sick leave mandated by the Earned Sick Time Act. Thus, in general, an employer may not lawfully maintain a “use it or lose it” policy with respect to NYCESTA-mandated, paid sick time.
Under the Act, an employee may take paid sick time for any of the following purposes:
- The employee’s mental or physical illness, injury or health condition or need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or need for preventive medical care; or
- Care of a family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or who needs preventive medical care; or
- Closure of the employee’s place of business by order of a public official due to a public health emergency or the employee’s need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.
The Earned Sick Time Act does not require employers, upon cessation of a worker’s employment for the employer, to pay the worker for accrued, unused paid sick time.
The NYCESTA prohibits businesses from firing, disciplining, demoting, suspending, reducing the hours of, or otherwise taking an adverse employment action against an employee for requesting or utilizing paid sick leave.
The New York City Department of Consumer Affairs (the “Department of Consumer Affairs”) is authorized to prosecute administrative proceedings seeking lost wages and benefits, civil penalties, and equitable relief against employers which violate the Act.
The Earned Sick Time Act does not expressly create a private cause of action by a worker against an employer for violating the Act. However, the Act states that the administrative remedies and penalties which the Department of Consumer Affairs may obtain against non-compliant employers “shall be in addition to any other remedies or penalties provided for the enforcement of such provisions under any other law including, but not limited to, civil or criminal actions or proceedings.”
Particularly given the above-quoted statutory savings clause, employees’ attorneys will likely contend that employees have an implied cause of action, for monetary damages and equitable relief, against employers which violate the Earned Sick Time Act. See, e.g., Aha Sales v. Creative Bath Prods., Inc., 58 A.D.3d 6, 9, 14-17, 867 N.Y.S.2d 169 (2d Dep’t 2008) (holding that, under N.Y. Labor Law § 191-b, a sales representative has an implied private right of action, against a corporation to which the representative provides services, for failing to pay commissions earned under the parties’ oral and written agreements).
Take-Aways for Employers
By April 1, 2014 or October 1, 2015, as the case may be, employers in New York City must modify their policies concerning absence due to illness to conform to the Earned Sick Time Act. Companies must revise their employee handbooks to reflect these modified policies.
However, those businesses in New York City that already have policies which allow time off that amounts to at least the minimum requirements under NYCESTA, and that can be taken for the same reasons and under the same conditions as set forth in the Act, will not be required to provide additional paid sick time.