The New York City Department of Consumer Affairs Provides Guidance Regarding the Earned Sick Time Act

As we reported in the June 2013 issue and March 2014 issue of the New York eAuthority, the New York City Earned Sick Time Act became effective on April 1, 2014. The Act requires businesses with five or more employees to provide 40 hours (or five days) of annual paid sick leave. The Act also mandates that an employer’s sick leave policy must meet or exceed the Act’s requirements.

Since the Act was adopted, the Commissioner of the New York City Department of Consumer Affairs (DCA) promulgated rules regarding employers’ sick leave policies. Under the rules, any sick leave policy must be in writing and must meet the following requirements:

• Minimum daily increment: Employers may set a minimum amount of sick leave that employees must use in a day, provided that the minimum time allotted may not exceed four hours.
• Advanced notice: If an employee needs to use sick leave for foreseeable reasons, the employer may require the employee to provide up to seven days of advance written notice. If the need for sick leave is unforeseeable, the employer may require the employee to provide notice as soon as practicable.
• Medical documentation: If an employee uses more than three consecutive work days as sick leave, employers may require that the employee provide documentation from a licensed health care provider. Employers must give the employee at least seven days to provide such documentation, which may confirm: (1) the need for the amount of sick leave used, and (2) that sick leave was used for an authorized purpose under the law. Employers must specify the consequences of not providing such documentation in their written sick leave policy.
• Employee verification: Employers may verify that employees use sick leave for a purpose authorized under the Act. The verification procedures should be outlined in the employers’ written policy and a model form is available online.
• Front-loading: Employers may “front-load” sick leave (e.g., establish a sick leave bank) so that employees start each calendar year with 40 hours of sick leave.
• Payout of unused sick leave: If employers front-load 40 hours of sick leave at the beginning of the new calendar year, they may pay out up to 40 hours of unused sick leave at the end of the calendar year or at the end of an employee’s employment. However, employers may not pay out sick leave as it accrues.
• Donation of unused sick leave: Employers may permit employees to donate unused sick leave to other employees, provided that the written sick leave policy describes the procedures for doing so.
• Other leave policies: Employers are not required to provide time designated for sick leave if they provide employees time off for other purposes (e.g., paid time off or “PTO” that includes vacation or personal leave), provided that employees may use that time off for sick leave and the employers’ policies meet the other requirements of the Act. Employers must still provide such employees with the Notice of Employee Rights. They may also want to include an explanatory memo on how employees can use their time off for sick leave.