S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2666

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 26, 2009
                               ___________

Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Labor

AN ACT to amend the labor law, in relation to enacting  the  "paid  sick
  leave act"

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The labor law is amended by adding a  new  article  5-A  to
read as follows:
                                ARTICLE 5-A
                             PAID SICK LEAVE
SECTION 171. SHORT TITLE.
        172. DEFINITIONS.
        173. ACCRUAL OF PAID SICK LEAVE.
        174. USE OF PAID SICK LEAVE.
        175. NOTICE AND POSTING.
        176. EMPLOYER RECORDS.
        177. EXERCISE OF RIGHTS PROTECTED; RETALIATION PROHIBITED.
        178. ENFORCEMENT.
        179. WAIVER BY COLLECTIVE BARGAINING.
        180. MINIMUM REQUIREMENTS.
        181. SEVERABILITY.
  S  171.  SHORT  TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS
THE "PAID SICK LEAVE ACT".
  S 172. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE:
  1. "EMPLOYEE" MEANS ANY INDIVIDUAL WHO PERFORMS SERVICES FOR AND UNDER
THE CONTROL AND DIRECTION OF AN EMPLOYER FOR WAGES  OR  OTHER  REMUNERA-
TION.
  2. "EMPLOYER" MEANS ANY PERSON, FIRM, PARTNERSHIP, INSTITUTION, LIMIT-
ED  LIABILITY  COMPANY,  CORPORATION  OR ASSOCIATION THAT EMPLOYS ONE OR
MORE EMPLOYEES; AND THE STATE, ANY POLITICAL  SUBDIVISION  THEREOF,  ANY
DEPARTMENT,  BOARD,  BUREAU,  DIVISION,  COMMISSION,  COMMITTEE,  PUBLIC

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06283-01-9
              

S. 2666                             2

AUTHORITY, PUBLIC CORPORATION, COUNCIL,  OFFICE  OR  OTHER  GOVERNMENTAL
ENTITY  PERFORMING  A GOVERNMENTAL OR PROPRIETARY FUNCTION FOR THE STATE
OR ANY POLITICAL SUBDIVISION THEREOF.
  3. "PAID SICK LEAVE" MEANS THE PAYMENT OF THE FULL WAGES OF AN EMPLOY-
EE  DURING ANY PERIOD OF SUCH EMPLOYEE'S ABSENCE FROM HIS OR HER EMPLOY-
MENT BECAUSE OF ILLNESS, INJURY, MEDICAL  CONDITION,  NEED  FOR  MEDICAL
DIAGNOSIS  OR  TREATMENT  FOR  HIMSELF,  HERSELF,  OR  HIS OR HER CHILD,
SPOUSE, PARENT, GRANDPARENT, GRANDCHILD, SIBLING, OR AUNT OR UNCLE.
  4. "SMALL BUSINESS" MEANS AN EMPLOYER WITH  LESS  THAN  TEN  EMPLOYEES
DURING ANY WEEK.
  S  173.  ACCRUAL  OF  PAID SICK LEAVE. 1. FOR EMPLOYEES EMPLOYED BY AN
EMPLOYER IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THIS  ARTICLE,  PAID
SICK  LEAVE  WITH SUCH EMPLOYER SHALL BEGIN TO ACCRUE UPON THE EFFECTIVE
DATE OF THIS ARTICLE. FOR EMPLOYEES  WHO  COMMENCE  EMPLOYMENT  WITH  AN
EMPLOYER  AFTER THE EFFECTIVE DATE OF THIS ARTICLE, PAID SICK LEAVE WITH
SUCH EMPLOYER SHALL BEGIN TO ACCRUE  ON  THE  NINETIETH  DAY  AFTER  THE
COMMENCEMENT OF SUCH EMPLOYMENT.
  2.  PAID  SICK  LEAVE SHALL ACCRUE AT A RATE OF ONE HOUR OF SUCH LEAVE
FOR EVERY TWENTY HOURS WORKED BY THE EMPLOYEE FOR HIS OR  HER  EMPLOYER.
PAID SICK LEAVE SHALL ACCRUE IN WHOLE HOUR INCREMENTS.
  3.  NO  EMPLOYEE  SHALL  ACCRUE,  AT ANY ONE PERIOD OF TIME, MORE THAN
EIGHTY HOURS OF PAID SICK LEAVE; PROVIDED, HOWEVER, THAT THE EMPLOYEE OF
A SMALL BUSINESS SHALL NOT ACCRUE MORE THAN FORTY  HOURS  OF  PAID  SICK
LEAVE.
  4.  ANY EMPLOYER WHICH PROVIDES PAID SICK LEAVE THAT EQUALS OR EXCEEDS
THE REQUIREMENTS OF SUBDIVISIONS ONE, TWO AND  THREE  OF  THIS  SECTION,
SHALL  NOT BE REQUIRED TO PROVIDE ADDITIONAL PAID SICK LEAVE PURSUANT TO
THIS SECTION.
  5. NO EMPLOYER  SHALL  BE  REQUIRED  TO  PROVIDE  FINANCIAL  OR  OTHER
REIMBURSEMENT  FOR UNUSED ACCRUED PAID SICK LEAVE, UPON THE TERMINATION,
RESIGNATION, RETIREMENT OR  OTHER  SEPARATION  FROM  EMPLOYMENT  OF  ANY
EMPLOYEE.
  S  174. USE OF PAID SICK LEAVE. 1. AN EMPLOYEE MAY USE PAID SICK LEAVE
NOT ONLY WHEN HE OR SHE IS ILL OR INJURED, OR FOR  THE  PURPOSE  OF  THE
EMPLOYEE'S  RECEIVING  MEDICAL CARE, TREATMENT OR DIAGNOSIS; BUT ALSO TO
AID OR CARE FOR ANY OF THE  FOLLOWING  PERSONS  WHEN  THEY  ARE  ILL  OR
INJURED,  OR  RECEIVING  MEDICAL  CARE, TREATMENT OR DIAGNOSIS: A CHILD;
PARENT;  LEGAL  GUARDIAN  OR  WARD;  SIBLING;  GRANDPARENT;  GRANDCHILD;
SPOUSE; OR DESIGNATED PERSON. THE EMPLOYEE MAY USE ALL OR ANY PERCENTAGE
OF  HIS  OR  HER  PAID  SICK LEAVE TO AID OR CARE FOR THE AFOREMENTIONED
PERSONS. THE AFOREMENTIONED CHILD,  PARENT,  SIBLING,  GRANDPARENT,  AND
GRANDCHILD  RELATIONSHIPS  INCLUDE NOT ONLY BIOLOGICAL RELATIONSHIPS BUT
ALSO RELATIONSHIPS  RESULTING  FROM  ADOPTION,  STEP-RELATIONSHIPS,  AND
FOSTER  CARE RELATIONSHIPS. "CHILD" INCLUDES A CHILD OF A DOMESTIC PART-
NER AND A CHILD OF A PERSON STANDING IN LOCO PARENTIS.
  IF THE EMPLOYEE HAS NO SPOUSE, THE EMPLOYEE MAY DESIGNATE  ONE  PERSON
AS  TO  WHOM THE EMPLOYEE MAY USE PAID SICK LEAVE TO AID OR CARE FOR THE
PERSON. THE OPPORTUNITY TO MAKE SUCH A DESIGNATION SHALL BE EXTENDED  TO
THE  EMPLOYEE  NO  LATER  THAN THE DATE ON WHICH THE EMPLOYEE HAS WORKED
THIRTY HOURS AFTER PAID SICK LEAVE BEGINS TO ACCRUE.  THERE SHALL  BE  A
PERIOD OF TEN WORK DAYS FOR THE EMPLOYEE TO MAKE THIS DESIGNATION. THER-
EAFTER, THE OPPORTUNITY TO MAKE SUCH A DESIGNATION, INCLUDING THE OPPOR-
TUNITY  TO  CHANGE SUCH A DESIGNATION PREVIOUSLY MADE, SHALL BE EXTENDED
TO THE EMPLOYEE ON AN ANNUAL BASIS, WITH A PERIOD OF TEN WORK  DAYS  FOR
THE EMPLOYEE TO MAKE SUCH DESIGNATION.

S. 2666                             3

  2.  AN EMPLOYER SHALL NOT REQUIRE, AS A CONDITION OF AN EMPLOYEE'S USE
OF PAID SICK LEAVE, THAT THE EMPLOYEE SEARCH FOR OR FIND  A  REPLACEMENT
WORKER  TO WORK THE PERIOD DURING WHICH SUCH EMPLOYEE IS USING PAID SICK
LEAVE.
  3.  AN  EMPLOYER  MAY REQUIRE EMPLOYEES TO PROVIDE, WHENEVER POSSIBLE,
REASONABLE NOTIFICATION OF AN ABSENCE FROM  WORK  FOR  WHICH  PAID  SICK
LEAVE  IS  OR  WILL BE USED.  THE PERIOD OF SUCH REASONABLE NOTIFICATION
SHALL NOT BE MORE THAN TWENTY-FOUR HOURS PRIOR TO ANY SUCH ABSENCE.
  4. AN EMPLOYER MAY ONLY TAKE REASONABLE MEASURES TO VERIFY OR DOCUMENT
THAT AN EMPLOYEE'S USE OF PAID SICK LEAVE IS LAWFUL.
  S 175. NOTICE AND POSTING. 1. THE DEPARTMENT SHALL ESTABLISH,  PUBLISH
AND  MAKE  AVAILABLE  TO  ALL EMPLOYERS, IN ALL LANGUAGES SPOKEN BY FIVE
PERCENT OR MORE OF THE STATE'S WORKFORCE, A NOTICE SUITABLE FOR  POSTING
BY EMPLOYERS IN THE WORKPLACE INFORMING EMPLOYEES OF THEIR RIGHTS PURSU-
ANT  TO THIS ARTICLE. THE DEPARTMENT SHALL, ON OR BEFORE DECEMBER FIRST,
UPDATE SUCH NOTICE IN ANY YEAR  IN  WHICH  THERE  IS  A  CHANGE  IN  THE
LANGUAGES SPOKEN BY FIVE PERCENT OR MORE OF THE STATE'S WORKFORCE.
  2.  EVERY  EMPLOYER  SHALL  CONSPICUOUSLY POST IN THE WORKPLACE OR JOB
SITE THE NOTICE ESTABLISHED PURSUANT TO SUBDIVISION ONE OF THIS SECTION.
  S 176. EMPLOYER RECORDS. EVERY EMPLOYER SHALL, FOR A  PERIOD  OF  FOUR
YEARS,  MAINTAIN  RECORDS FOR EACH EMPLOYEE DOCUMENTING THE HOURS WORKED
AND THE PAID SICK LEAVE USED. THE DEPARTMENT SHALL HAVE ACCESS  TO  SUCH
RECORDS DURING THE NORMAL BUSINESS HOURS OF EACH EMPLOYER. WHEN THERE IS
AN  ISSUE  RELATING  TO AN EMPLOYEE'S ACCRUAL AND USE OF PAID SICK LEAVE
THERE SHALL BE, ABSENT CLEAR AND CONVINCING EVIDENCE TO THE CONTRARY,  A
PRESUMPTION  THAT  THE EMPLOYER VIOLATED THE PROVISIONS OF THIS ARTICLE,
IF THE EMPLOYER FAILS TO MAINTAIN THE RECORDS REQUIRED BY  THIS  SECTION
OR FAILS TO PROVIDE ACCESS THERETO TO THE DEPARTMENT.
  S  177.  EXERCISE  OF  RIGHTS PROTECTED; RETALIATION PROHIBITED. 1. IT
SHALL BE UNLAWFUL FOR ANY EMPLOYER OR  ANY  OTHER  PERSON  TO  INTERFERE
WITH,  RESTRAIN,  OR  DENY THE ACCRUAL OR USE OF OR THE ATTEMPTED USE OF
ANY PAID SICK LEAVE REQUIRED BY THIS ARTICLE.
  2. NO EMPLOYER OR  ANY  OTHER  PERSON  SHALL  DISCHARGE,  THREATEN  TO
DISCHARGE,  DEMOTE, SUSPEND, OR IN ANY OTHER MANNER DISCRIMINATE OR TAKE
ADVERSE ACTION AGAINST ANY EMPLOYEE IN RETALIATION  FOR  EXERCISING  ANY
RIGHT  GRANTED  BY  THIS  ARTICLE. SUCH RIGHTS SHALL INCLUDE, BUT NOT BE
LIMITED TO, THE USE OF PAID SICK LEAVE, THE FILING  OF  A  COMPLAINT  OR
INFORMING  ANY  PERSON  ABOUT ANY VIOLATION OF THIS ARTICLE, THE COOPER-
ATION WITH THE DEPARTMENT IN THE INVESTIGATION OF ANY ALLEGED  VIOLATION
OF  THIS  ARTICLE,  AND THE INFORMING OF ANY PERSON OF HIS OR HER RIGHTS
PURSUANT TO THIS ARTICLE.
  3. NO EMPLOYER SHALL CONSIDER OR USE PAID SICK LEAVE TAKEN PURSUANT TO
THIS ARTICLE AS AN ABSENCE THAT MAY LEAD TO OR RESULT IN THE  DISCIPLINE
OF,  THE  DISCHARGE  OF, THE DEMOTION OF, THE SUSPENSION OF OR ANY OTHER
ACTION AGAINST ANY EMPLOYEE.
  4. THE PROVISIONS OF THIS SECTION SHALL APPLY TO ANY  PERSON  WHO,  IN
GOOD FAITH, ALLEGES A VIOLATION OF THIS ARTICLE.
  5.  THE TAKING OF ANY ADVERSE ACTION AGAINST AN EMPLOYEE WITHIN NINETY
DAYS OF ANY PERSON FILING A COMPLAINT WITH THE  DEPARTMENT  OR  A  COURT
ALLEGING  A  VIOLATION  OF THE PROVISIONS OF THIS ARTICLE, INFORMING ANY
OTHER PERSON RELATING TO AN ALLEGED VIOLATION  OF  THIS  ARTICLE  BY  AN
EMPLOYER,  COOPERATING  WITH  THE  DEPARTMENT OR ANY OTHER PERSON IN THE
INVESTIGATION OR PROSECUTION OF ANY ALLEGED VIOLATION OF THIS ARTICLE OR
INFORMING ANY PERSON OF THE PROVISIONS OF THIS ARTICLE, SHALL  ESTABLISH
A  REBUTTABLE  PRESUMPTION THAT SUCH ADVERSE ACTION WAS TAKEN IN RETALI-
ATION FOR EXERCISING THE RIGHTS GRANTED PURSUANT TO THIS ARTICLE.

S. 2666                             4

  S 178. ENFORCEMENT. 1. THE DEPARTMENT IS  CHARGED  WITH  THE  DUTY  TO
ENFORCE THE PROVISIONS OF THIS ARTICLE. FURTHERMORE, THE COMMISSIONER IS
AUTHORIZED  AND  DIRECTED TO PROMULGATE ANY RULES AND REGULATIONS NECES-
SARY TO IMPLEMENT THE PROVISIONS OF THIS ARTICLE.
  2.  FOR  ANY  VIOLATION  OF  THIS  ARTICLE THE DEPARTMENT MAY ORDER AN
EMPLOYER TO GRANT REINSTATEMENT, BACK PAY, THE PAYMENT FOR ANY PAID SICK
LEAVE WITHHELD AND/OR THE PAYMENT OF A PENALTY TO THE AFFECTED EMPLOYEE.
FURTHERMORE, THE DEPARTMENT  SHALL  IMPOSE  A  CIVIL  PENALTY,  FOR  ANY
VIOLATION  OF  THIS  ARTICLE,  EQUAL TO TRIPLE THE MONETARY VALUE OF THE
PAID SICK LEAVE DENIED OR TWO HUNDRED DOLLARS, WHICHEVER SHALL BE GREAT-
ER.
  S 179. WAIVER BY COLLECTIVE BARGAINING. ALL  OR  ANY  PORTION  OF  THE
PROVISIONS  OF  THIS  ARTICLE MAY BE WAIVED WITH REGARD TO ANY EMPLOYEES
AND EMPLOYERS WHO ARE SUBJECT  TO  A  BONA  FIDE  COLLECTIVE  BARGAINING
AGREEMENT  TO  THE  EXTENT  THAT SUCH PROVISIONS ARE EXPRESSLY WAIVED IN
SUCH AGREEMENT IN CLEAR AND UNAMBIGUOUS TERMS.
  S 180. MINIMUM REQUIREMENTS. THE  PROVISIONS  OF  THIS  ARTICLE  SHALL
CONSTITUTE  THE MINIMUM REQUIREMENTS OF THE PROVISION OF PAID SICK LEAVE
TO EMPLOYEES. NO PROVISION OF THIS ARTICLE SHALL BE DEEMED  TO  PROHIBIT
ANY  EMPLOYER  FROM GRANTING GREATER PAID SICK LEAVE BENEFITS THAN THOSE
REQUIRED BY THIS ARTICLE.
  S 181. SEVERABILITY. IF ANY CLAUSE, SENTENCE,  PARAGRAPH,  SECTION  OR
PART  OF THIS ARTICLE SHALL BE ADJUDGED BY ANY COURT OF COMPETENT JURIS-
DICTION TO BE INVALID AND  AFTER  EXHAUSTION  OF  ALL  FURTHER  JUDICIAL
REVIEW, THE JUDGEMENT SHALL NOT AFFECT, IMPAIR OR INVALIDATE THE REMAIN-
DER  THEREOF,  BUT  SHALL  BE  CONFINED IN THIS OPERATION TO THE CLAUSE,
SENTENCE, PARAGRAPH, SECTION OR PART OF THIS ACT  DIRECTLY  INVOLVED  IN
THE CONTROVERSY IN WHICH THE JUDGEMENT SHALL HAVE BEEN RENDERED.
  S  2. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become  a  law;  provided,  however,
that,  effective  immediately,  any  rules  and regulations necessary to
implement the provisions of this act on its effective date  are  author-
ized and directed to be completed on or before such date.