New York sick time rules require most employers to provide paid sick leave, with the amount depending on employer size: 40 hours per year for employers with 5 or more employees (or net income over $1 million), and 40 hours of unpaid sick leave for smaller employers. The New York State Paid Sick Leave Law took effect on September 30, 2020, and New York City has its own separate, more expansive law.
Background: State vs. City Laws
New York has two overlapping sick leave laws. The state law (NYS Paid Sick Leave) applies to all private employers in New York State, while New York City’s Earned Safe and Sick Time Act (ESSTA) applies to employers within the five boroughs. When both apply, the employer must follow the stricter provision. For most NYC employers, that means the city law’s definition of “employee” is broader and the accrual rules differ slightly.
The state law was enacted as part of the 2020-2021 budget and took effect September 30, 2020. The city law dates back to 2014 and was expanded in 2018 to include safe leave for victims of domestic violence, family offense matters, and human trafficking.
How Accrual Works
Under the state law, employees accrue one hour of sick leave for every 30 hours worked, up to the annual cap. The cap depends on employer size:
- Employers with 4 or fewer employees and net income under $1 million: 40 hours of unpaid sick leave per year.
- Employers with 5 or more employees, or 4 or fewer with net income over $1 million: 40 hours of paid sick leave per year.
- Employers with 100 or more employees: 56 hours of paid sick leave per year (state law minimum).
New York City’s law sets a flat 40 hours of paid sick leave for all employers, regardless of size, and includes safe leave. NYC employers with 100+ employees must provide 56 hours if they are subject to the state’s higher cap.
Employees begin accruing sick leave on their first day of employment, but employers may require a 90-day waiting period before the leave can be used. Accrued leave carries over to the next year, but the employer can cap the total at the annual accrual limit (e.g., 40 hours).
Eligibility and Covered Employees
Eligibility under the state law is broad: all employees who work in New York State, including part-time, temporary, and per-diem workers, are covered. The law does not require a minimum number of hours worked to be eligible. However, certain categories are excluded: federal government employees, state government employees, and employees covered by a collective bargaining agreement that provides equivalent benefits.
New York City’s law covers employees who work 80 or more hours per year in the city, which is a lower threshold than the state’s. Independent contractors are generally not covered, but misclassified workers may be entitled to protections.
Permitted Uses of Sick Leave
Sick leave can be used for a variety of reasons, not just personal illness. Under both state and city law, covered uses include:
- Physical or mental illness, injury, or health condition of the employee.
- Diagnosis, care, or treatment of the employee’s own health condition.
- Care for a family member with a physical or mental illness, injury, or health condition.
- Closure of the employee’s workplace or a child’s school or childcare due to a public health emergency.
- For victims of domestic violence, family offense matters, or human trafficking (safe leave) – under NYC law and state law for certain reasons.
Family members include children, spouses, domestic partners, parents, siblings, grandparents, grandchildren, and any individual related by blood or marriage, as well as individuals whose close association is the equivalent of a family relationship.
Notice, Documentation, and Retaliation
Employers may require reasonable notice for foreseeable leave, but cannot require documentation unless the employee is absent for more than three consecutive days. If documentation is required, the employer must accept a signed statement from the employee or a health care provider.
Retaliation is prohibited: employers cannot threaten, discipline, or fire an employee for requesting or using sick leave. The law also protects employees who file complaints or cooperate with investigations.
Common Problems and Misconceptions
A common misconception is that sick leave must be paid out at termination. In New York, unused sick leave does not have to be paid out upon separation, unless the employer’s policy says otherwise. Another misconception is that small employers are exempt entirely – they are not, but they may provide unpaid leave.
Another issue is the difference between “sick leave” and “safe leave.” Safe leave covers absences related to domestic violence, sexual assault, stalking, and human trafficking, and is required under NYC law. The state law also includes safe leave for certain situations, but the definition is narrower.
Employers often confuse the state law’s 56-hour cap for large employers with the NYC cap. The state law sets 56 hours for employers with 100+ employees, but NYC law requires only 40 hours. However, if an employer is subject to both, the state law’s higher cap prevails.
Comparison: State vs. NYC vs. Federal
There is no federal sick leave law, so New York’s rules set the floor. The state law is more generous than many other states, but NYC’s law is even more protective in some ways:
- NYC covers employees who work 80 hours per year; state law has no minimum.
- NYC includes safe leave explicitly; state law includes it for certain reasons.
- Both require accrual at 1 hour per 30 hours worked.
- NYC allows a 90-day waiting period before use, same as state.
For employers in NYC, the city law applies to all employees who work in the city, regardless of where the employer is based. For employers outside NYC, only the state law applies.
Costs and Employer Obligations
The cost of sick leave is borne by the employer, as there is no government reimbursement. Employers must track accrual, provide notices to employees (posting requirements), and keep records for at least three years. Failure to comply can result in penalties, back pay, and civil fines.
Employers may create a paid time off (PTO) policy that combines sick leave and vacation, as long as it meets or exceeds the sick leave requirements. For example, a PTO policy that provides 40 hours of paid leave per year satisfies the state law for employers with 5+ employees, even if the employee uses it for vacation.
Template: Sick Leave Policy Notice
Employers must provide a written notice to employees about their sick leave rights. A simple template:
| Field | Details |
|---|---|
| Employer Name | _________________________ |
| Employee Name | _________________________ |
| Accrual Rate | 1 hour per 30 hours worked |
| Annual Cap | 40 hours (or 56 if employer has 100+ employees) |
| Paid/Unpaid | Paid (if employer has 5+ employees or net income > $1M) |
| Carryover | Up to the annual cap |
| Waiting Period | 90 days from hire (optional) |
| Permitted Uses | Employee illness, family care, safe leave, public health closure |
Sample (fictional): ABC Corp, employee Jane Doe, accrual 1 hr/30 hrs, cap 40 hrs, paid, carryover up to 40 hrs, no waiting period, uses include illness and family care.
Frequently Asked Questions
Can I use sick leave for a doctor’s appointment?
Yes, sick leave can be used for diagnosis, care, or treatment of a health condition, which includes preventive care like doctor’s appointments.
Does my employer have to pay out unused sick leave when I quit?
No, New York law does not require payment for unused sick leave upon termination. However, if your employer’s policy says they will pay it, they must follow that policy.
What if my employer doesn’t provide sick leave?
If your employer is covered by the law and fails to provide sick leave, you can file a complaint with the New York State Department of Labor (or NYC Department of Consumer and Worker Protection if in NYC).
Can I use sick leave to care for my pet?
No, the law only covers care for family members as defined by the law, which does not include pets.
Do I have to provide a doctor’s note?
Employers can only require documentation after three consecutive days of absence, and even then, a signed statement from you or your health care provider is sufficient.
Resources and Where to Get Help
For more details, visit the New York State Department of Labor website or the NYC Department of Consumer and Worker Protection. If you believe your rights have been violated, you can file a complaint with these agencies. For specific legal advice, consult a qualified employment attorney.