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April 26, 2020

Paid Sick Leave Updates: Dallas and New York State

Paid Sick Leave on hold in Dallas

Despite state and local efforts to address the need for leave for COVID-19 related reasons, the U.S. District Court for the Eastern District of Texas granted an injunction to block the City of Dallas from enforcing its paid sick leave ordinance on March 30, 2020.  Litigation against the ordinance commenced last July, a few days prior to when the ordinance was set to take effect on August 1, 2019 (see our prior Benefit Beat articles from August and June, 2019).  This court injunction is similar to those issued against paid sick leave ordinances in the Cities of Austin and San Antonio.

New York Enacts State-wide Sick Leave Law

New York has enacted a sick leave law that will become applicable January 1, 2021, requiring most employers to provide sick leave as more fully described below.  This law is separate and distinct from the emergency coronavirus related paid sick leave law enacted on March 20, 2020.

Employer size

Leave amount per calendar year

4 or fewer employees in any calendar year

Up to 40 hours of unpaid sick leave

  • 4 or fewer employees in any calendar year when net income exceeds one million dollars in previous tax year
  • Between 5-99 employees in any calendar year

 

Up to 40 hours of paid sick leave

100 or more employees in any calendar year

Up to 56 hours of paid sick leave

 

For purposes of determining the number of employees, a calendar year means the 12--month period from January 1 through December 31.  For other purposes including the leave accrual period, the employer can define any consecutive 12-month period.

Accrual, carryover and cap on unused leave

An employee accrues one hour of sick leave for every 30 hours worked, beginning on the date of hire or the effective date of this law, whichever is later. Unused sick leave is carried over to the following calendar year. 

An employer with 99 or fewer employees may limit the use of sick leave to 40 hour per calendar year.  An employer with 100 or more employees may limit the use of sick leave to 56 hours per calendar year.

An employer is not required to pay an employee for unused sick leave upon an employee's termination, resignation, retirement, or other separation from employment.

Use of leave

Beginning January 1, 2021, leave is available for:

  • For a mental or physical illness, injury, or health condition of such employee or such employee's family member,  regardless  of  whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that such employee requests such leave;
  • For 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, such employee or such employee's family member; or
  • For certain absences from work when the employee or employee’s covered family member has been the victim of domestic violence, a family offense, sexual offense, stalking or human trafficking.

A family member means an employee’s biological, adopted, or foster child, spouse, domestic partner, biological, foster, step or adoptive parent, sibling, grandchild or grandparent; and the child or parent of the employee’s spouse or domestic partner.

Employers can set a reasonable minimum increment for use of sick leave, which may not be greater than four hours.

Employer’s existing PTO policy.  An employer that has an existing paid time off policy that meets or exceeds the requirements of the law in accrual, carryover and use, is not required to provide any additional sick leave.

Job protection.  Upon return to work following the use of any sick leave, an employee is entitled to be restored by the employer to the same position of employment held prior to any sick leave taken, with the same pay and other terms and conditions of employment.

Employer notice obligation.  Upon the oral or written request of an employee, an employer is required to provide a summary of the amounts of sick leave accrued and used by such employee in the current calendar year and/or any previous calendar year. The employer is required to provide such information to the employee within three business days of such request.

Record retention.  Employers are required to maintain accurate payroll records showing for each week worked the hours worked, rates of pay, gross wages, deductions, allowances, amount of sick leave provided to each employee; and net wages for each employee for a period of at least 6 years.

Coordination with other laws

This law does not prevent a city with a population of one million or more from enacting and enforcing local laws or ordinances which meet or exceed the standard or requirements of this law.  This law must be coordinated with New York City and Westchester County paid sick leave ordinances.

Effective date.  This law takes effect 180 days after enactment or when regulations are issued, whichever comes first.  More guidance will likely be issued between now and the applicable date of January 1, 2021. 

 

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