Chapter 8 - EARNED SICK TIME ACT

Section 20-911

Section 20-911

  §  20-911 Short title. This chapter shall be known and may be cited as
the "Earned Sick Time Act."

Section 20-912

Section 20-912

  §  20-912  Definitions. When used in this chapter, the following terms
shall be defined as follows:
  a. "Calendar year" shall mean a regular and consecutive  twelve  month
period, as determined by an employer.
  b. "Chain business" shall mean any employer that is part of a group of
establishments  that share a common owner or principal who owns at least
thirty percent of  each  establishment  where  such  establishments  (i)
engage  in  the  same  business  or  (ii)  operate pursuant to franchise
agreements with the same franchisor as defined in general  business  law
section  681;  provided  that  the total number of employees of all such
establishments in such group is at least fifteen.
  c. "Child" shall mean a biological, adopted or foster child,  a  legal
ward, or a child of an employee standing in loco parentis.
  d.  "Domestic  partner"  shall  mean  any  person who has a registered
domestic partnership pursuant to section 3-240 of the code,  a  domestic
partnership  registered  in  accordance with executive order number 123,
dated August 7, 1989, or a domestic partnership registered in accordance
with executive order number 48, dated January 7, 1993.
  e. "Domestic worker" shall mean any "domestic worker"  as  defined  in
section  2(16) of the labor law who is employed for hire within the city
of New York for more than eighty hours in a calendar year  who  performs
work on a full-time or part-time basis.
  f.  "Employee"  shall mean any "employee" as defined in section 190(2)
of the labor law who is employed for hire within the city  of  New  York
for  more  than  eighty  hours in a calendar year who performs work on a
full-time or part-time basis, including work performed in a transitional
jobs program pursuant to section 336-f of the social services  law,  but
not  including  work  performed  as  a  participant in a work experience
program pursuant to section 336-c of the social services  law,  and  not
including  those  who  are employed by (i) the United States government;
(ii)  the  state  of  New  York,  including  any   office,   department,
independent  agency,  authority,  institution,  association,  society or
other body of the state including the legislature and the judiciary;  or
(iii)  the  city  of  New  York or any local government, municipality or
county or any entity governed by general municipal  law  section  92  or
county law section 207.
  g.  "Employer"  shall mean any "employer" as defined in section 190(3)
of the labor law, but not including (i) the  United  States  government;
(ii)   the   state  of  New  York,  including  any  office,  department,
independent agency,  authority,  institution,  association,  society  or
other  body  of  the  state including the legislature and the judiciary;
(iii) the city of New York or  any  local  government,  municipality  or
county  or  any  entity  governed by general municipal law section 92 or
county law section  207;  or  (iv)  any  employer  that  is  a  business
establishment  classified  in section 31, 32 or 33 of the North American
Industry Classification System. In determining the number  of  employees
performing  work  for  an employer for compensation during a given week,
all employees performing work for compensation on a full-time, part-time
or temporary basis shall be counted, provided that where the  number  of
employees who work for an employer for compensation per week fluctuates,
business size may be determined for the current calendar year based upon
the  average  number  of  employees who worked for compensation per week
during the  preceding  calendar  year,  and  provided  further  that  in
determining the number of employees performing work for an employer that
is  a  chain  business,  the  total number of employees in that group of
establishments shall be counted.

  h. "Family member" shall mean an employee's  child,  spouse,  domestic
partner  or  parent,  or  the child or parent of an employee's spouse or
domestic partner.
  i. "Health care provider" shall mean any person licensed under federal
or  New  York  state  law  to  provide  medical  or  emergency services,
including, but not  limited  to,  doctors,  nurses  and  emergency  room
personnel.
  j. "Hourly professional employee" shall mean any individual (i) who is
professionally  licensed  by  the  New  York state education department,
office of professions, under the direction of the New York  state  board
of  regents  under  education  law sections 6732, 7902 or 8202, (ii) who
calls in for work assignments at will determining his or  her  own  work
schedule with the ability to reject or accept any assignment referred to
them and (iii) who is paid an average hourly wage which is at least four
times  the  federal  minimum  wage  for hours worked during the calendar
year.
  k. "Paid sick time" shall mean time that is provided by an employer to
an employee that can be used  for  the  purposes  described  in  section
20-914  of  this  chapter  and  is  compensated  at the same rate as the
employee earns from his or her employment at the time the employee  uses
such  time,  except  that  an  employee who volunteers or agrees to work
hours in addition to his or her normal schedule will not receive more in
paid sick time compensation than his or her regular hourly wage if  such
employee  is  not  able  to  work  the  hours  for  which  he or she has
volunteered or agreed even if the reason for such inability to  work  is
one  of  the reasons in section 20-914 of this chapter. In no case shall
an employer be required to pay more to an employee for  paid  sick  time
than  the  employee's  regular rate of pay at the time the employee uses
such paid sick time, except that in no case shall  the  paid  sick  time
hourly  rate  be less than the hourly rate provided in section 652(1) of
the labor law.
  l. "Parent" shall mean a biological, foster, step- or adoptive parent,
or a legal guardian of an employee,  or  a  person  who  stood  in  loco
parentis when the employee was a minor child.
  m.  "Public  disaster"  shall  mean  an event such as fire, explosion,
terrorist attack, severe weather conditions or other catastrophe that is
declared a public emergency or disaster by the president of  the  United
States,  the  governor of the state of New York or the mayor of the city
of New York.
  n. "Public health emergency" shall mean  a  declaration  made  by  the
commissioner of health and mental hygiene pursuant to section 3.01(d) of
the  New York city health code or by the mayor pursuant to section 24 of
the executive law.
  o.  "Public  service  commission"  shall  mean  the   public   service
commission established by section 4 of the public service law.
  p.   "Retaliation"  shall  mean  any  threat,  discipline,  discharge,
demotion, suspension, reduction in employee hours, or any other  adverse
employment  action  against any employee for exercising or attempting to
exercise any right guaranteed under this chapter.
  q. "Sick time" shall mean time that is provided by an employer  to  an
employee  that  can be used for the purposes described in section 20-914
of this chapter, whether or not compensation for that time  is  required
pursuant to this chapter.
  r. "Spouse" shall mean a person to whom an employee is legally married
under the laws of the state of New York.

Section 20-913

Section 20-913

  20-913 Right to sick time; accrual. a. All employees have the right to
sick time pursuant to this chapter.
  1.  All  employers  that  employ  fifteen  or  more  employees and all
employers of one or more domestic workers shall provide paid  sick  time
to their employees in accordance with the provisions of this chapter and
the  schedule set forth in section 7 of the local law which enacted this
section.
  2. All employees not entitled to  paid  sick  time  pursuant  to  this
chapter  shall  be  entitled  to unpaid sick time in accordance with the
provisions of this chapter and the schedule set forth in  section  7  of
the local law which enacted this section.
  3.  All  employers  that employ fifteen to nineteen employees, and all
employers of one or more domestic workers,  shall  provide  unpaid  sick
time  in accordance with the provisions of this chapter and the schedule
set forth in section 7 of the  local  law  which  enacted  this  section
during  any  period  in  which,  pursuant  to  the schedule set forth in
section 7 of the local law which enacted this  section,  such  employers
are  not  required  to  provide paid sick time but employers that employ
twenty or more employees are required to provide paid sick time.
  b. All employers shall provide a minimum of one hour of sick time  for
every  thirty  hours worked by an employee, other than a domestic worker
who shall accrue sick time pursuant to paragraph 2 of subdivision  d  of
this  section.  Employers  shall  not  be required under this chapter to
provide more than forty hours of sick time for an employee in a calendar
year. For purposes of this subdivision, any paid days of rest to which a
domestic worker is entitled pursuant to section 161(1) of the labor  law
shall  count  toward  such forty hours. Nothing in this chapter shall be
construed to discourage  or  prohibit  an  employer  from  allowing  the
accrual  of sick time at a faster rate or use of sick time at an earlier
date than this chapter requires.
  c. An employer required to provide paid sick  time  pursuant  to  this
chapter who provides an employee with an amount of paid leave, including
paid  time  off,  paid vacation, paid personal days or paid days of rest
required to be compensated pursuant to section 161(1) of the labor  law,
sufficient  to meet the requirements of this section and who allows such
paid leave to  be  used  for  the  same  purposes  and  under  the  same
conditions  as  sick  time  required  pursuant  to  this chapter, is not
required to provide additional paid sick time for such employee  whether
or not such employee chooses to use such leave for the purposes included
in subdivision a of section 20-914 of this chapter. An employer required
to  provide  unpaid  sick  time pursuant to this chapter who provides an
employee with an amount of unpaid or paid  leave,  including  unpaid  or
paid time off, unpaid or paid vacation, or unpaid or paid personal days,
sufficient  to meet the requirements of this section and who allows such
leave to be used for the same purposes and under the same conditions  as
sick  time required pursuant to this chapter, is not required to provide
additional unpaid sick time  for  such  employee  whether  or  not  such
employee  chooses  to  use  such  leave  for  the  purposes set forth in
subdivision a of section 20-914 of this chapter.
  d. 1. For an employee other than  a  domestic  worker,  sick  time  as
provided  pursuant  to  this  chapter  shall  begin  to  accrue  at  the
commencement of employment or on the effective date of this  local  law,
whichever  is  later,  and  an employee shall be entitled to begin using
sick  time  on  the  one  hundred  twentieth  calendar   day   following
commencement  of  his  or her employment or on the one hundred twentieth
calendar day following the effective date of this local  law,  whichever
is  later. After the one hundred twentieth calendar day of employment or
after the one hundred twentieth calendar  day  following  the  effective

date  of  this local law, whichever is later, such employee may use sick
time as it is accrued.
  2.  In  addition  to  the paid day or days of rest to which a domestic
worker is entitled pursuant to section 161(1) of  the  labor  law,  such
domestic  worker shall also be entitled to two days of paid sick time as
of the date that such domestic worker is entitled to such  paid  day  or
days  of rest and annually thereafter, provided that notwithstanding any
provision of this chapter to the contrary, such two days  of  paid  sick
time  shall  be calculated in the same manner as the paid day or days of
rest are calculated pursuant to the provisions of section 161(1) of  the
labor law.
  e.  Employees  who are not covered by the overtime requirements of New
York state law or regulations, including the wage orders promulgated  by
the New York commissioner of labor pursuant to article 19 or 19-A of the
labor  law,  shall  be assumed to work forty hours in each work week for
purposes of sick time accrual unless their regular  work  week  is  less
than  forty  hours,  in  which  case  sick  time accrues based upon that
regular work week.
  f. The provisions of this chapter do  not  apply  to  (i)  work  study
programs  under  42  U.S.C.  section  2753, (ii) employees for the hours
worked and compensated by or through qualified scholarships  as  defined
in  26 U.S.C. section 117, (iii) independent contractors who do not meet
the definition of employee under section 190(2) of the  labor  law,  and
(iv) hourly professional employees.
  g.  Employees  shall  determine how much earned sick time they need to
use, provided that employers may set a reasonable minimum increment  for
the use of sick time not to exceed four hours per day.
  h.  Except for domestic workers, unused sick time as provided pursuant
to this chapter shall be carried over to the  following  calendar  year;
provided that no employer shall be required to (i) allow the use of more
than  forty  hours  of  sick  time in a calendar year or (ii) carry over
unused paid sick time if the employee is paid for any unused  sick  time
at  the  end  of the calendar year in which such time is accrued and the
employer provides the employee with an amount of  paid  sick  time  that
meets  or exceeds the requirements of this chapter for such employee for
the immediately subsequent  calendar  year  on  the  first  day  of  the
immediately subsequent calendar year.
  i.  Nothing  in this chapter shall be construed as requiring financial
or other  reimbursement  to  an  employee  from  an  employer  upon  the
employee's  termination,  resignation,  retirement,  or other separation
from employment for accrued sick time that has not been used.
  j. If an employee is transferred to a  separate  division,  entity  or
location  in  the  city  of  New  York, but remains employed by the same
employer, such employee is entitled to all  sick  time  accrued  at  the
prior  division, entity or location and is entitled to retain or use all
sick time as provided pursuant to the provisions of this  chapter.  When
there is a separation from employment and the employee is rehired within
six  months  of separation by the same employer, previously accrued sick
time that was not used shall be reinstated and such  employee  shall  be
entitled  to  use such accrued sick time at any time after such employee
is rehired, provided that no employer shall  be  required  to  reinstate
such  sick  time  to the extent the employee was paid for unused accrued
sick time prior to separation and the employee agreed to accept such pay
for such unused sick time.

Section 20-914

Section 20-914

  §  20-914  Use  of  sick time. a. An employee shall be entitled to use
sick time for absence from work due to:
  1. such employee's  mental  or  physical  illness,  injury  or  health
condition  or  need for medical diagnosis, care or treatment of a mental
or physical illness, injury or health condition or need  for  preventive
medical care; or
  2.  care  of  a  family  member  who  needs medical diagnosis, care or
treatment of a mental or physical illness, injury or health condition or
who needs preventive medical care; or
  3. closure of such employee's place of business by order of  a  public
official  due  to  a  public health emergency or such employee's need to
care for a child whose school or childcare provider has been  closed  by
order of a public official due to a public health emergency.
  b.  An  employer may require reasonable notice of the need to use sick
time. Where such need is foreseeable, an employer may require reasonable
advance notice of the intention to use such sick  time,  not  to  exceed
seven days prior to the date such sick time is to begin. Where such need
is  not  foreseeable,  an  employer  may  require an employee to provide
notice of the need for the use of sick time as soon as practicable.
  c. For an absence  of  more  than  three  consecutive  work  days,  an
employer  may require reasonable documentation that the use of sick time
was authorized by subdivision a of this  section.  For  sick  time  used
pursuant  to  paragraphs  1  and  2  of  subdivision  a of this section,
documentation signed by a licensed health care provider  indicating  the
need  for  the  amount of sick time taken shall be considered reasonable
documentation and an employer shall not require that such  documentation
specify  the  nature of the employee's or the employee's family member's
injury, illness or condition, except as required by law.
  d. Nothing herein shall prevent an employer from requiring an employee
to provide written confirmation that an employee used sick time pursuant
to this section.
  e. An employer shall not require an employee, as a condition of taking
sick time, to search for or find a replacement worker to cover the hours
during which such employee is utilizing sick time.
  f. Nothing in this chapter shall be construed to prohibit an  employer
from  taking  disciplinary  action,  up  to  and  including termination,
against a worker who uses sick time provided pursuant  to  this  chapter
for purposes other than those described in this section.

Section 20-915

Section 20-915

  §  20-915  Changing  schedule. Upon mutual consent of the employee and
the employer,  an  employee  who  is  absent  for  a  reason  listed  in
subdivision  a  of  section  20-914  of this chapter may work additional
hours during the immediately preceding seven days  if  the  absence  was
foreseeable  or  within  the immediately subsequent seven days from that
absence without using sick time to make up for the  original  hours  for
which  such  employee was absent, provided that an adjunct professor who
is an employee at  an  institute  of  higher  education  may  work  such
additional hours at any time during the academic term. An employer shall
not  require  such  employee to work additional hours to make up for the
original hours for which such employee was absent or to  search  for  or
find a replacement employee to cover the hours during which the employee
is  absent  pursuant  to this section. If such employee works additional
hours, and such hours are fewer than the number of hours  such  employee
was  originally  scheduled  to work, then such employee shall be able to
use sick time provided pursuant to  this  chapter  for  the  difference.
Should  the  employee  work  additional hours, the employer shall comply
with any applicable federal, state or local labor laws.

Section 20-916

Section 20-916

  §  20-916  Collective bargaining agreements. a. The provisions of this
chapter shall not apply to any employee covered by  a  valid  collective
bargaining agreement if (i) such provisions are expressly waived in such
collective  bargaining  agreement and (ii) such agreement provides for a
comparable benefit for the employees covered by such  agreement  in  the
form of paid days off; such paid days off shall be in the form of leave,
compensation,  other  employee  benefits,  or  some combination thereof.
Comparable benefits shall include, but  are  not  limited  to,  vacation
time,  personal  time,  sick  time,  and  holiday and Sunday time pay at
premium rates.
  b. Notwithstanding subdivision a of this section,  the  provisions  of
this  chapter  shall  not  apply  to any employee in the construction or
grocery industry covered by a valid collective bargaining  agreement  if
such  provisions  are  expressly  waived  in  such collective bargaining
agreement.

Section 20-917

Section 20-917

  §  20-917  Public  disasters.  In  the event of a public disaster, the
mayor may, for the length of such disaster, suspend  the  provisions  of
this chapter for businesses, corporations or other entities regulated by
the public service commission.

Section 20-918

Section 20-918

  §  20-918  Retaliation  and interference prohibited. No employer shall
engage in retaliation or threaten retaliation against  an  employee  for
exercising or attempting to exercise any right provided pursuant to this
chapter,  or  interfere  with  any  investigation, proceeding or hearing
pursuant to this chapter. The protections of this chapter shall apply to
any person who mistakenly but in good faith alleges a violation of  this
chapter. Rights under this chapter shall include, but not be limited to,
the  right  to  request  and use sick time, file a complaint for alleged
violations of this chapter with the  department,  communicate  with  any
person   about  any  violation  of  this  chapter,  participate  in  any
administrative or judicial action regarding an alleged violation of this
chapter, or inform any person of his or her potential rights under  this
chapter.

Section 20-919

Section 20-919

  § 20-919 Notice of rights. a. An employer shall provide an employee at
the  commencement  of  employment with written notice of such employee's
right to sick time pursuant to this chapter, including the  accrual  and
use of sick time, the calendar year of the employer, and the right to be
free  from  retaliation and to bring a complaint to the department. Such
notice shall be in English and  the  primary  language  spoken  by  that
employee,  provided that the department has made available a translation
of such notice in such  language  pursuant  to  subdivision  b  of  this
section.  Such  notice may also be conspicuously posted at an employer's
place of business in an area accessible to employees.
  b. The department shall create and make available notices that contain
the information required pursuant to subdivision a of this  section  and
such  notices  shall  allow for the employer to fill in applicable dates
for such employer's calendar year. Such notices shall  be  posted  in  a
downloadable  format  on  the  department's website in Chinese, English,
French-Creole, Italian, Korean, Russian, Spanish and any other  language
deemed appropriate by the department.
  c.   Any   person   or  entity  that  willfully  violates  the  notice
requirements of this section shall be subject to  a  civil  fine  in  an
amount  not  to exceed fifty dollars for each employee who was not given
appropriate notice pursuant to this section.

Section 20-920

Section 20-920

  §  20-920 Employer records. Employers shall retain records documenting
such employer's compliance with the requirements of this chapter  for  a
period of two years unless otherwise required pursuant to any other law,
rule  or  regulation,  and  shall  allow  the  department to access such
records, with an appropriate notice and at a mutually agreeable time, in
furtherance of an investigation conducted pursuant to this chapter.

Section 20-921

Section 20-921

  §  20-921  Confidentiality  and nondisclosure. No person or entity may
require the disclosure of details relating to an employee's  or  his  or
her  family  member's medical condition as a condition of providing sick
time under this chapter. Health information  about  an  employee  or  an
employee's  family  member obtained solely for the purposes of utilizing
sick time pursuant to this chapter shall be treated as confidential  and
shall  not  be  disclosed  except  by  the  affected  employee, with the
permission of the affected employee or as required by law.

Section 20-922

Section 20-922

  §  20-922  Encouragement  of more generous policies; no effect on more
generous policies. a. Nothing in this  chapter  shall  be  construed  to
discourage  or  prohibit the adoption or retention of a sick time policy
more generous than that which is required herein.
  b. Nothing in this chapter  shall  be  construed  as  diminishing  the
obligation  of  an  employer  to  comply  with  any contract, collective
bargaining  agreement,  employment  benefit  plan  or  other   agreement
providing more generous sick time to an employee than required herein.
  c.  Nothing  in  this  chapter  shall  be construed as diminishing the
rights of public employees regarding sick time as provided  pursuant  to
federal, state or city law.

Section 20-923

Section 20-923

  §  20-923  Other  legal requirements. a. This chapter provides minimum
requirements pertaining to sick time  and  shall  not  be  construed  to
preempt,  limit  or otherwise affect the applicability of any other law,
regulation, rule, requirement, policy  or  standard  that  provides  for
greater  accrual or use by employees of sick leave or time, whether paid
or unpaid, or that extends other protections to employees.
  b. Nothing in this chapter shall be construed as creating or  imposing
any  requirement  in  conflict  with  any  federal or state law, rule or
regulation, nor shall anything in this chapter be construed to  diminish
or  impair  the  rights  of  an  employee  or  employer  under any valid
collective bargaining agreement.

Section 20-924

Section 20-924

  §  20-924  Enforcement  and penalties. a. The department shall enforce
the provisions of this chapter. In effectuating  such  enforcement,  the
department   shall  establish  a  system  utilizing  multiple  means  of
communication to receive complaints regarding non-compliance  with  this
chapter  and  investigate  complaints  received  by  the department in a
timely manner.
  b. Any person alleging a violation of  this  chapter  shall  have  the
right  to  file  a  complaint with the department within 270 days of the
date the person knew or should have known of the alleged violation.  The
department  shall  maintain confidential the identity of any complainant
unless disclosure  of  such  complainant's  identity  is  necessary  for
resolution  of  the  investigation  or  otherwise  required  by law. The
department shall, to the extent  practicable,  notify  such  complainant
that the department will be disclosing his or her identity prior to such
disclosure.
  c.  Upon  receiving  a complaint alleging a violation of this chapter,
the department shall investigate such complaint and attempt  to  resolve
it  through mediation. The department shall keep complainants reasonably
notified regarding the status  of  their  complaint  and  any  resultant
investigation. If the department believes that a violation has occurred,
it  shall issue to the offending person or entity a notice of violation.
The commissioner shall prescribe the form and wording of such notices of
violation.  The  notice  of  violation  shall  be  returnable   to   the
administrative  tribunal  authorized  to  adjudicate  violations of this
chapter.
  d. The department shall have the power to  impose  penalties  provided
for  in  this  chapter  and  to grant an employee or former employee all
appropriate relief. Such relief shall include: (i) for each instance  of
sick  time  taken  by  an employee but unlawfully not compensated by the
employer: three times the wages that should have been  paid  under  this
chapter  or  two  hundred  fifty dollars, whichever is greater; (ii) for
each instance of sick time  requested  by  an  employee  but  unlawfully
denied  by  the  employer  and  not  taken by the employee or unlawfully
conditioned upon searching for or finding a replacement worker,  or  for
each  instance an employer requires an employee to work additional hours
without the mutual consent of such employer and employee in violation of
section 20-915 of this chapter to make up for the original hours  during
which  such  employee  is  absent pursuant to this chapter: five hundred
dollars; (iii) for each instance of unlawful retaliation  not  including
discharge   from  employment:  full  compensation  including  wages  and
benefits lost, five hundred dollars and equitable relief as appropriate;
and (iv) for each instance of unlawful discharge from  employment:  full
compensation  including  wages  and  benefits  lost,  two  thousand five
hundred  dollars  and  equitable  relief,  including  reinstatement,  as
appropriate.
  e.  Any entity or person found to be in violation of the provisions of
sections 20-913, 20-914, 20-915 or  20-918  of  this  chapter  shall  be
liable  for  a  civil  penalty  payable  to  the city not to exceed five
hundred dollars for the first violation and, for  subsequent  violations
that  occur  within  two  years of any previous violation, not to exceed
seven hundred and fifty dollars for the  second  violation  and  not  to
exceed one thousand dollars for each succeeding violation.
  f.  The department shall annually report on its website the number and
nature of the complaints received pursuant to this chapter, the  results
of  investigations  undertaken  pursuant  to this chapter, including the
number of complaints not substantiated and  the  number  of  notices  of
violations  issued,  the  number and nature of adjudications pursuant to

this chapter, and the average  time  for  a  complaint  to  be  resolved
pursuant to this chapter.