On September 30, 2020, section 196-b of the New York State Labor Law went into effect. The legislation, which provides for the immediate accrual of employer-provided sick leave, permits sick leave to be taken beginning on January 1, 2021. We wrote about the New York State Paid Sick Leave law previously, and have outlined the situations under which it must be provided to employees. Like New York City’s paid sick leave entitlements, the law applies to absences related to an employee’s status as a victim of domestic violence, family offense, sexual offense, stalking, or human trafficking. For a complete list of reasons and more detail about the accrual of sick leave, take a look at our prior blog.
The amount of sick leave to be provided under the legislation and whether the leave is to be paid or unpaid depends on the number of employees and the employer’s net income. For employers
- with four or fewer employees and net income less than $1,000,000 in the previous tax year, each employee must be provided with up to 40 hours of unpaid sick leave per calendar year.
- with four or fewer employees and net income greater than $1,000,000 in the previous tax year must provide each employee with up to 40 hours of paid sick leave.
- with between five and ninety-five employees, each employee must be provided with up to 40 hours of paid sick leave per calendar year.
- with 100 or more employees, the amount of paid sick leave per employee increases to up to 56 hours.
One area of uncertainty posed by section 196-b concerns the documentation or proof an employee must provide to his or her employer to be entitled to sick leave. Subsection 4.a. states that an employee merely has to submit an “oral or written request” for leave. Likewise, subsection 5.a. of the legislation states that “[a]n employer may not require the disclosure of confidential information … as a condition of providing sick leave pursuant to this section.” This prohibition on the mandatory disclosure of confidential information likely precludes an employer from requiring that an employee provide a doctor’s note with any substantive detail or other medical information that could be deemed confidential. Arguably, an employer could request (but not require) than an employee provide such a doctor’s note, but the extent to which an employer can require documentation will likely be addressed in forthcoming regulations.
To date, the New York State Department of Labor (“NYS DOL”) has not issued any regulations or guidance on section 196-b. Thus, it remains to be seen whether the NYS DOL will provide any clarification concerning exactly what documentation or information employees must provide to employers in support of a sick leave request under the legislation. We will continue to monitor the NYS DOL for any developments, including for the issuance of relevant regulations or guidance.
As always, Murtha Cullina’s Labor and Employment Group is available to discuss your specific situation and guide you through the ever-changing landscape of employee leave entitlements.