This post is part of Priori’s blog series “From Our Network,” where we feature lawyers in our network discussing important issues small businesses face. In today’s post, employment lawyer Deborah Karpatkin gives a detailed overview about what NYC small businesses need to know about the new Earned Sick Time Act.
If you own or work in a big company, you can skip this article. Your company probably already has a sick leave policy. But if you own or work in a small NYC business – even as small as five or fewer employees – read on. NYC now has a paid sick leave law, and it applies to you.
Sick leave is a quandary for small workplaces. Employees ask, “If I’m sick, should I risk staying home? Will I get paid? Will I lose my job?” Employers ask, “Do I have to pay workers who are out sick?” “Do I want sick workers to come to work?”
The new NYC Earned Sick Time Act, (“ESTA”) the first law signed by Mayor De Blasio, goes into effect next week, April 1, 2014. It expands the coverage of an earlier version of the law, and answers these questions.
ESTA requires paid sick leave in workplaces with five or more employees and unpaid job protection in the very smallest businesses. Even domestic workers have rights to sick leave.
Some small business owners may protest: “This is just more paperwork. More government interference in my business. More expense.” But think about it this way. Won’t healthier employees be more effective, and more productive? Do you want your employees coming to work sick, and making others sick? Do you want your employees leaving you for a larger employer with more generous policies?
Here are some key points:
- Will it cover my employees? Probably. ESTA covers full, part time, and undocumented employees. Employees who live outside of NYC are covered so long as they work 80 or more hours per calendar year in NYC.
- How much leave? Paid or Unpaid? For five or more employees, ESTA requires up to 40 hours of paid leave/calendar year. For fewer than five employees, ESTA requires up to 40 hours of unpaid leave/calendar year. Leave accrues at the rate of one hour for every 30 hours worked. Of course, this is a floor, not a ceiling. Your policy can be more generous.
- When does the new law start? ESTA takes effect on April 1, 2014, or on the first day of new employment after that. Employees can start using accrued leave on July 30, 2014 for existing employees, and 120 days after the first day of employment for new hires.
- What kind of leave does the new law cover? ESTA applies when the employee is sick, or has a medical visit. It also allows employees to attend to the health care of family members (children, spouses/partners, parents, siblings, grandchildren, grandparents). It covers physical and mental health care conditions, treatment, and preventative care.
- What about notice and documentation? Employers can require advance notice where practicable, and documentation for absences of more than three consecutive work days. Employers can’t ask for information about medical reasons for the absence – that’s private information.
- How do I comply? With new laws come new responsibilities. Starting May 1, 2014, employers must give each current and each new employee (at hire) a written sick leave Notice of Rights. The NYC Department of Consumer Affairs, the agency responsible for ESTA enforcement, has a sample Notice Form on their website.
- What about record keeping? Employers will need to document their compliance with the law for at least three years – the notice requirement, and any responses to leave requests. Make sure you keep any health-related information confidential, unless legally permitted to disclose.
- What shouldn’t I do? Of course, don’t penalize an employee who asks for or uses sick leave, even if it turns out the employee isn’t entitled to it. ESTA prohibits retaliation against employees who request or use sick leave. Retaliation includes any adverse action against an employee who uses or tries in good faith to use ESTA or makes a complaint about sick leave.
- Consequences for noncompliance? There are fines, and more, for non-compliance. Small employers (up to 19 employees) have a grace period until October 1, 2014 to get paperwork in order.
- Where can I get more information? This article gives a general overview, not formal legal advice. If you have specific questions about how ESTA will affect you, you may want to consult with an employment attorney. For general information, the NYC Department of Consumer Affairs has an FAQ page and information sheets for employers and employees.
ESTA makes law what was already good workplace practice. It’s win-win: good for employees, and best practice for your business.
Still not sure what this means for your business? You’re in luck! Submit your questions in the comments section below, twitter, facebook or to hello@priorilegal.com before Monday 3/31 at 11:59pm and Deborah will pick 1-2 to answer. We will post her answers to the blog next week.
Photo Credit: hello_rayman via Pixabay
