New York state’s sick leave law requires employers to provide between 40 and 56 hours of paid leave per year, depending on their size. Employers with fewer than five employees and an annual income of $1 million or less may satisfy the law by providing unpaid leave of 40 hours annually. Leave must be provided for specified reasons relating to the health and safety of employees and their family members.
The law’s sick leave requirements apply to all New York employers, including any person, corporation, limited liability company or association employing any individual in any occupation, industry, trade, business or service. Joint owners are both responsible for carrying out the law. However, only employers with at least five employees or more than $1 million in annual net income must provide that leave as paid. Furthermore, the amount of leave required is determined by the employer’s size, as set forth below.
|Employer Size||Leave Requirement|
|Fewer than 5 employeesAnnual net income of $1 million or less||Up to 40 unpaid hours annually|
|Fewer than 5 employeesAnnual net income over $1 million||Up to 40 paid hours annually|
|5 – 99 employees||Up to 40 paid hours annually|
|Over 100 employees||Up to 56 paid hours annually|
In calculating their size, employers should:
- Count their employees (in all locations in New York state) for the 12-month period from Jan. 1 through Dec. 31, and
- Use their annual net income from the previous tax year.
In addition, final regulations adopted by the New York State Department of Labor specify that for purposes of the sick leave law, employers determine their employee total by counting the highest total number of employees concurrently employed at any point during the calendar year. A reduction in the number of employees does not reduce employee leave entitlements until the following calendar year. The regulations provide leave accrual rules for cases where employers increase their number of employees.
All private sector workers in New York state are covered under the law, regardless of industry, occupation, part-time status, overtime- exempt status or seasonal status. The immigration status of a worker has no effect on their eligibility for leave benefits under the law, which also covers domestic workers.
Employees who telecommute are covered for the hours they physically work in New York state, even if the employer is physically located outside the state.
Accrual and Carryover
Employees accrue one hour of sick leave for every 30 hours worked, up to the yearly maximum set forth in the chart above. Accrual begins at the start of employment or Sept. 30, 2020, whichever is later. However, employees do not earn sick leave while they are on sick leave, or for payments that are not for hours worked, such as bonuses or “subject-to-call” time. On the other hand, employees do accrue leave for time considered “hours worked,” including on-call time, training time and travel time.
Employers may front-load the total amount of sick leave to employees at the beginning of the year, but they may not later reduce that amount based on the employee’s actual hours worked during the year.
Employees may carry over unused sick leave to the following calendar year. For the purposes of accrual, use and carryover of leave, “calendar year” means the 12-month period from Jan. 1 through Dec. 31, or a regular and consecutive 12-month period, as determined by the employer.
Use of Sick Leave
There is no minimum period of employment before an employee can use sick leave. However, unless an employer front-loads sick leave at the beginning of a calendar year or otherwise has a sick leave policy that exceeds the requirements of the law, an employee would have to work at least 30 hours before accruing any sick leave.
Amount of Leave
Employers with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year, and employers with 100 or more employees may limit the use of sick leave to 56 hours per calendar year.
Employers may set a reasonable minimum increment for the use of sick leave, but it cannot be more than four hours.
Reasons for Leave
Employers must provide accrued sick leave for the following purposes related to health conditions:
- An employee’s or employee’s family member’s mental or physical illness, injury or health condition (regardless of whether the illness, injury or health condition has been diagnosed or requires medical care at the time the employee requests leave); or
- The diagnosis, care or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventive care for, an employee or an employee’s family member.
Employees may use sick leave for doctor, dentist, eye doctor or other routine appointments when they require treatment for a condition or for preventive medical care.
According to guidance from the New York State Department of Labor, whether employees may use sick leave when their employer has been ordered to close temporarily due to a public health emergency depends on the type of health emergency involved, taking into account the risk of contagion and other health considerations. Sick leave under the paid sick leave law is separate and additional to the quarantine leave for employees subject to a quarantine or isolation order related to COVID-19, and use of COVID-19 leave does not impact or otherwise utilize an employee’s paid sick leave accruals or usage.
Employers must also provide accrued sick leave for any of the following reasons when the employee or employee’s family member has been the victim of domestic violence (as defined by state law), a family offense, sexual offense, stalking or human trafficking:
- To obtain services from a domestic violence shelter, rape crisis center or other services program;
- To participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members;
- To meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding;
- To file a complaint or domestic incident report with law enforcement;
- To meet with a district attorney’s office;
- To enroll children in a new school; or
- To take any other actions necessary to ensure the health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.
“Family Member” means an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent; or the child or parent of an employee’s spouse or domestic partner. “Parent” means a biological, foster, step- or adoptive parent, a legal guardian of an employee, or a person who stood in loco parentis when the employee was a minor child. “Child” means a biological, adopted or foster child, a legal ward or a child of an employee standing in loco parentis.
Leave may be used even if the police have not been contacted or the perpetrator convicted.
An employer may not require, as a condition of providing sick leave:
- The disclosure of confidential medical information
- Information relating to absence from work due to domestic violence, a sexual offense, stalking or human trafficking
Documentation of Leave
Under the regulations, employers are permitted to request documentation for leave of three or more consecutive workdays or shifts, in the form of:
- An attestation from a licensed medical provider supporting the need for leave, the amount of leave needed and a date the employee may return to work; or
- An attestation from an employee of their eligibility for leave.
Employers may not ask the reason for leave, except as required by law, and may not require that the attestation explain the nature of the illness.
Employees returning to work after taking sick leave must have their position, pay, and terms and conditions of employment restored to what they were before the leave.
According to FAQs issued by the New York State Department of Labor, employers cannot require employees to work from home or telecommute instead of taking sick leave, but they may offer employees those alternative options. Employees who choose working from home or telecommuting retain the sick leave they have accrued.
Employers are prohibited from discharging, threatening, penalizing, or otherwise discriminating or retaliating against any employee because the employee has exercised his or her right to request and use sick leave.
Employees using paid sick leave must be paid at their regular rate of pay or the applicable minimum wage under state law, whichever is greater. Employers may not take a tip allowance as a credit against the minimum wage requirements of their industry for leave time. However, they are not required to pay employees for lost tips or gratuities.
Employees who are paid at more than one rate of pay must be paid for leave under the law at the weighted average of those rates, meaning the total regular pay divided by the total hours worked in the week. See the New York Department of Labor’s FAQs on the law for more information.
Employees using leave during time that would have been overtime if worked are not required to be paid at an overtime rate. Employers are not required to pay employees for unused sick leave when their employment ends.
There is no specified notice or time period requirement under the law. The employee must, however, make an oral or written request for leave before taking the leave, unless the employer does not require this notice.
Alternate Leave Policies
Employers with policies that meet or exceed the requirements of the sick leave law are not required to provide employees with additional leave.
Collective bargaining agreements entered into on or after Sept. 30, 2020, may provide comparable paid days off, in the form of leave, compensation, other employee benefits or a combination of the three, in place of leave required by the sick leave law. However, the agreement must acknowledge the sick leave law by specifically referencing New York Labor Law Section 196-b, and should specifically identify any benefits deemed comparable to the leave in the law.
Employers must provide a summary of the amounts of sick leave accrued and used in the current and previous calendar years by any employee who requests the information. The information must be provided within three business days.
Employers must keep records for six years showing the weekly amount of sick leave provided to each employee.
Interaction With Local Leave Laws
Cities with a population of at least one million may enact and enforce local laws meeting or exceeding the requirements of the sick leave law. In addition, municipal paid sick leave programs in effect as of Sept. 30, 2020, are not affected by the sick leave law. Benefits remain available under the Westchester County law that provides domestic workers with up to 40 hours of paid sick leave per year, regardless of the employer’s size.
Employees may use sick leave during paid family leave only if their employer allows it. Taking sick leave at the same time as paid family leave may allow the employee to receive their full salary for all or part of the leave. However, an employee cannot receive more than their full wages while receiving paid family leave benefits.
New York paid sick leave operates independently from other state and federal leave requirements and must be paid in addition to them.
Under New York law, failure to provide required paid sick leave is treated as a failure to pay employee wages. Violators are subject to civil actions and criminal penalties, including but not limited to wages, liquidated damages ad penalties in an amount double the amount due.
Please Note: The state laws summaries featured on this site are for general informational purposes only. In addition to state law, certain municipalities may enact legislation that imposes different requirements. State and local laws change frequently and, as such, we cannot guarantee the accuracy or completeness of the information featured in the State Laws section. For more detailed information regarding state or local laws, please contact your state labor department or the appropriate local government agency.