Updated: January 27, 2021
New York employers—like employers in every state—must follow the federal Family and Medical Leave Act (FMLA), which allows eligible employees to take unpaid leave for certain reasons. Once an employee’s FMLA leave is over, the employee has the right to be reinstated to his or her position.
New York has its own paid family leave and temporary disability programs. The state also has a paid sick leave law, as well as a separate law that requires certain employers to provide paid quarantine leave for COVID-19. And some New York employees are entitled to take time off for military leave and adoption.
Employees are entitled to the protections of all applicable laws; if more than one law applies, the employee may use the most beneficial provisions.
New York employees who are eligible may take up to 12 weeks of leave for serious health conditions, bonding with a new child, or preparation for a family member's military service; more leave is available for employees who need to care for a family member who was seriously injured on active military duty. For detailed information on FMLA leave, see Taking Family and Medical Leave.
Employers in New York are subject to the FMLA if they have at least 50 employees for at least 20 weeks in the current or previous year.
Employees are eligible for FMLA leave if:
FMLA leave is available if an employee needs time off to:
New York employees may take up to 12 weeks of leave in a 12-month period for a serious health condition, bonding with a new child, or qualifying exigencies. This leave is available every 12 months, as long as the employee continues to meet the eligibility requirements explained above.
Employees may take up to 26 weeks of leave in a single 12-month period for military caregiver leave. However, this is a per-injury, per-service member entitlement. Unless the same family member is injured again, or another family member suffers an injury while on active duty, an employee may not take additional leave for this purpose.
Employees are entitled to continue their health insurance while on leave, at the same cost they must pay while working. FMLA leave is unpaid, but employees may be allowed (or required) to use their accrued paid leave during FMLA leave. And, if you are taking leave for a reason covered by New York's temporary disability insurance or paid family leave programs, you may be eligible for benefits during your time off; see below.
When an employee’s FMLA leave ends, the employee is entitled to be reinstated to the same or an equivalent position, with a few exceptions.
In addition to the rights granted by the FMLA, some New York employees are entitled to paid temporary disability and paid family leave, as well as unpaid time off for military family leave and adoption leave.
New York has a state temporary disability insurance (TDI) program, which pays benefits to employees who've worked for the employer for at least four weeks and are temporarily unable to work due to disability (including pregnancy) that's not related to their work (meaning that it's not covered by New York workers' compensation). After a seven-day waiting period, eligible employees may receive 50% of their normal wages (but only up to a legal maximum that's currently $170) for up to 26 weeks.
Under New York's paid family leave program, employees who have worked for their employer for at least 26 weeks have the right to take time off for the following reasons:
Beginning in 2021 and thereafter, employees take up to 12 weeks off for family leave, with benefits up to 67% of their usual wages.
Employers with at least 20 employees must give time off to eligible employees who have a spouse who is a member of the National Guard, Reserves, or Armed Forces, and who is deployed during a period of military combat to a combat theater or combat zone of operations. Employers must grant employees up to ten days of leave while the employee’s spouse is on leave during deployment.
All employers that offer parental leave for the birth of a biological child must make the same amount of leave available to employee who adopt a child who is preschool age or younger (or who is up to 18 years old, if the child has a disability).
Effective September 30, 2020, employers in New York state must provide employees with up to 56 hours of paid sick leave per year. Qualifying reasons for leave include:
"Family member" is defined broadly to include domestic partners, step-children, step-parents, legal guardians, adopted children, grandparents, grandchildren, and many others.
Under the law, small employers (those with four or fewer employees and new of income of less than $1 million per year) must offer at least 40 hours of unpaid sick leave per calendar year.
Medium-sized employers with between five and 99 employees and employers with four or fewer employees and a net income of more than $1 million must provide at least 40 hours of paid sick leave per calendar year.
Large employers with at least 100 employees must provide at least 56 hours of paid sick leave per calendar year.
Employees must be paid for sick leave at their regular rate of pay or the minimum wage, whichever is higher.
Under a law that was enacted in March 2020, New York requires most employers to provide separate paid sick leave when employees are ordered by public authorities to be in quarantine or isolation because of COVID-19. Large employers (with 100 or more employees) and public employers must provide at least 14 days of paid sick leave for this reason. Employers who have 11-99 employees or net income of more than $1 million need only provide at least five days of paid quarantine leave. Employees will not lose any accrued regular sick leave when they receive paid quarantine leave.
Employees who test positive for COVID-19 at the end of the quarantine or isolation period are entitled to a second period of paid leave. However, employees may not qualify for paid leave for more than three quarantine/isolation orders.
Small employers (with 10 or fewer employees) must provide unpaid quarantine leave. However, their employees (as well as employees at medium-sized employers who've used up their five days of paid leave) will be eligible for paid family leave and disability leave benefits (as discussed above).
All employees who are out on leave for COVID-19 quarantine or isolation, whether paid or unpaid, are entitled to get their previous job back when they return to work.