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New York Council Amends Earned Sick Time Act Yet Again; Employers Must Comply by April 1, 2014

Written by Michael Arnold

Following up on our earlier coverage, last week the New York City Council passed the very first bill it introduced during the de Blasio administration (Int. 0001-2014), a law amending the Earned Sick Time Act that it passed (and already amended) just last year. The vote turned out to be a real nail-biter: 46 to 5. The relevant changes to the Act are as follows:

  • The Act reduces its paid sick time requirement coverage threshold from 15 to 5 employees, which the Mayor claims will affect an additional 500,000 employees (bringing the total to more than 2 million employees). Remember: employers with less than 5 employees still have to provide unpaid sick time.
  • The Act will go into effect for all employers on April 1, 2014 – less than a month from now. Gone are the economic index tests that would have delayed its implementation indefinitely (in theory, but not in actuality) and gone is the delayed compliance starting date for employers with 20 or more employees (except that employers with 20 or more employees may not be subject to certain penalties until after October).
  • The Mayor’s powers to enforce and administer the Act have been greatly expanded. In particular the Commissioner of the Department of Consumer Affairs is no longer limited to responding to formal employee complaints of violations; it can now commence an investigation on its own volition. Further, the Mayor can delegate enforcement and administration responsibilities from the Department of Consumer Affairs to another governmental agency should he so choose.
  • The Act expands the definition of “Family Member” to add “sibling, grandchild, and grandparent.” “Grandchild” means the child of an employee’s child, “Grandparent” means a parent of an employee’s parent, and “Sibling” means an employee’s brother or sister, including half-siblings, step-siblings and siblings related through adoption.
  • The Council eliminated the exemption it previously extended to employers in the manufacturing industry.
  • Employers must maintain sick time compliance records for three years – an additional year.
  • Employees now have 2 years instead of 270 days to file a complaint.

Other items of note (so keep reading):

  • One amendment that did not make the final cut: a removal of the 120 waiting period before the employee can utilize paid sick time. Glad that’s still in there. Although remember, accrual starts on day 1.
  • The Act has a notice concept for employees somewhat similar to the one in the New York State Wage Theft Prevention Act. At the moment, the Department of Consumer Affairs is tasked with publishing a form notice. Of course, no word from them just yet, although it did have time to create an Instagram page.  That does not however, relieve you from your responsibility to start distributing these notices next month.
  • Finally, for those of you who have been told not to worry about this law if you already provide paid sick leave/PTO, I strongly urge you to disregard that advice. Even though you may already provide paid leave, you still must comply with the Act’s many technical requirements. For example, you could be in violation of the law if you don’t allow for carryover from year to year. Or maybe the way you process sick leave requests is problematic under the law. So go back and review your existing sick leave/PTO policy and bring it up to date as necessary by the April 1 deadline.  As always, we’re here if you need help.

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Michael S. Arnold

Member / Chair, Employment Practice

Michael Arnold is Chair of the firm's Employment Practice. He is an employment lawyer who deftly handles a wide array of matters.