§ 7-202 Employer Size.
RCNY § 7-202
(a)Employer size shall be determined based on the employer's total number of employees nationwide. Employer size during a given calendar year shall be determined by counting the highest total number of employees concurrently employed at any point during the calendar year to date. For the purposes of counting the number of employees concurrently employed: (1) Part-time employees shall be considered employed each working day of the calendar week; (2) Employees jointly employed by more than one employer shall be counted by each employer, whether or not their names appear on the employer's payroll; and (3) Employees on paid or unpaid leave, including safe/sick time, leaves of absence, disciplinary suspension, or any other type of temporary absence, shall be counted as long as the employer has a reasonable expectation that the employee will later return to active employment.
(b)For employers that increase the number of employees during a calendar year from fewer than five to between five to 99 employees: (1) The duty to provide paid safe/sick time shall be prospective from the date of the increase in the number of employees and shall not entitle an employee to reimbursement for previously used unpaid safe/sick time.
(2)After the increase in the number of employees, an employer must allow an employee to use, and receive pay for, up to 40 hours of accrued safe/sick time, less the number of unpaid safe/sick time hours the employee had previously used in that calendar year. Example 1: Liz is hired by an employer with only one other employee on January 1, 2021. The employer has a frontloading policy, so Liz has 40 hours of unpaid safe/sick time immediately available for use from the start of her employment. Liz uses 10 hours of unpaid safe/sick time from January 1 to May 31, 2021, bringing her accrual balance to 30 hours. On June 1, 2021, the employer brings on five additional employees, so the employer is now required to provide each employee with up to 40 hours of paid safe/sick time per year. If Liz uses any additional safe/sick time in 2021, she must be paid for up to 30 hours of safe/sick time used. The employer is not obligated to pay Liz for the 10 hours of safe/sick time she used before June 1, 2021. Example 2: Liz is hired by an employer with only one other employee on January 1, 2021. The employer has an accrual policy. Liz works approximately 30 hours per week and accrues 20 hours of unpaid sick time between January and May 2021. She uses 10 of those hours of unpaid sick time in May 2021, bringing her accrual balance to 10 hours as of May 31, 2021. On June 1, 2021, the employer brings on five additional employees, so the employer is now required to provide each employee with up to 40 hours of paid safe/sick time per year. If Liz uses any of the remaining 10 hours of safe/sick time she already accrued as of May 31, 2021, she must be paid for those 10 hours and any additional safe/sick time she accrues and uses, up to the 40-hour per calendar year limits set forth in subdivision (f) of 6 RCNY § 7-214. The employer is not obligated to pay Liz for the 10 hours of safe/sick time she used before June 1, 2021.
(c)For employers that increase the number of employees during a calendar year from 99 or fewer to 100 or more, an employee's right to use additional paid safe/sick time up to 56 hours shall be prospective from the date of such increase in the number of employees. Example 1: An employer with a calendar year of January 1 - December 31 has 90 employees. Shane works 40 hours per week. She used 20 hours of safe/sick time in 2020 and carried over 20 hours to 2021. In June 2021, the employer hired several new employees, bringing the total headcount to 110. Shane has not used safe/sick time in 2021, and had worked 1,050 hours between January 2021 and the date the employee headcount went over 99 employees. She therefore has 55 hours of safe/sick time available for immediate use: 35 hours accrued in 2021 (1050 / 30 = 35) plus the 20 hours she carried over from 2020 equals 55. Example 2: In the same scenario, Shane used 40 hours of accrued safe/sick time in May 2021, before her employer's headcount increased above 100. After her employer's headcount increases in June 2021, Shane has 15 hours of safe/sick time available for immediate use: 35 hours accrued in 2021 plus the 20 hours carried over from 2020, less 40 hours used in 2021.
(d)Reductions in the number of employees working for an employer shall not reduce employee safe/sick time entitlements under § 20-913(b) of the Administrative Code until the following calendar year. Example: An employer with a calendar year of January 1 - December 31 has four employees. On April 1, 2021, the employer hires three new employees, bringing the employer's total number of employees to seven. On November 1, 2021, the employer lays off four employees, reducing the employer's total number of employees to three. The employer must begin providing paid safe/sick time to all employees on April 1, 2021. The employer must continue providing paid safe/sick time to the three remaining employees through at least December 31, 2021, the last day of the current calendar year. (Amended City Record 2/3/2016, eff. 3/4/2016; amended City Record 8/21/2018, eff. 9/20/2018; amended City Record 9/15/2023, eff. 10/15/2023)
