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New York

When you are sick—be it with a bad cold or more serious illness or injury—you may need time off from work to rest and heal. Federal, state, and local laws may give you time off when you need it and protect you from employment discrimination.

Taking Time Off From Work

  • If you work in New York City, the New York City Earned Safe and Sick Time Act gives you the right to time off if you are sick or injured, or need to visit the doctor, without losing your job.
    • If your employer has 5 or more employees in NYC, you have the right to earn and take up to 40 hours of paid sick time a year, that you can use for your own health needs, including physical/mental illness or injury.
    • If your employer has fewer than 5 employees in NYC, you still have the right to earn and take up to 40 hours of unpaid sick time, meaning that you can’t get fired for needing a day off.
    • Under this law, you earn sick time at the rate of one hour for every 30 hours you work. Call A Better Balance at 212-430-5982 if you have more questions and see here or here for more information about the law.
  • If you were hurt while working or became sick as a result of your job, you may also be entitled to paid benefits and other protections through Workers’ Compensation.
  • If you are unable to work due to your non-occupational illness or disability, you may qualify for paid benefits through New York’s Temporary Disability Insurance. You can learn more here.
    • You can receive TDI for up to 26 weeks in a year or for any particular “period of disability.” There is a one week unpaid waiting period for all TDI benefits.
    • These payments are small—only 50% of your average weekly wage, up to a maximum of $170.00 per week.
    • The TDI law does not provide job protection. This means that unless you have the right to job protection under another law, like the Family and Medical Leave Act (FMLA), your employer does not have to hold your job for you while you are receiving TDI benefits.
  • In New York State, if you lose your job due to your own non-serious illness, and are able to continue working, you may still be able to get Unemployment Insurance. A Better Balance suggests consulting with an attorney prior to applying for benefits.
  • If you are covered, the Family and Medical Leave Act (FMLA) allows you to take up to 12 weeks of unpaid time off of work per year for your own serious medical needs—without losing your job (or your health insurance, if you have it through your employer). This includes serious physical and mental illness or injury.
    • Only about half of all private sector workers in the U.S. are covered by the law! You must 1) work for the government or a company with 50 or more employees within 75 miles of your worksite and 2) have worked with your employer for at least 1 year and 3) have worked at least 1,250 hours in the year before taking leave.
    • If you are covered, you can use the 12 weeks to care for your own serious medical needs, including those related to pregnancy and recovery from childbirth. You may also take the leave on an intermittent basis or may work on a reduced schedule.
    • While you are on leave, you have the right to keep your benefits. When you return to work, you have the right to return to the same or a similar job.
    • If you have accrued paid leave from your employer, you may choose to use that paid time off concurrently with your FMLA time. Your employer can also require you to use your paid leave—including paid vacation, personal, or sick days—while you are taking FMLA leave.

For more information about the Family and Medical Leave Act, see here.

Reasonable Accommodations and Anti-Discrimination Laws

  • The New York State Human Rights Law and New York City Human Rights Law give workers with a disabling physical or mental illness or injury, even a temporary one, a right to reasonable accommodations and ban disability discrimination at workplaces with 4 or more employees. Should your disability require some changes to your position, your boss must provide you with a reasonable accommodation so that you can perform your job, unless it would be very difficult or expensive for them to do so. A reasonable accommodation can include anything from changes to your workspace to modifying your work schedule to restructuring your job. While the City and State laws provide similar protections, the City Human Rights Law provides protection for a broader range of disabilities.
    • Under the New York State Human Rights Law, your employer must provide you with reasonable accommodations if you are transgender and undergoing medical treatment to transition. Moreover, your employer cannot discriminate against you for health needs related to transitioning.
    • New York City Human Rights Law also mandates that employers provide reasonable accommodations for a disability based on gender identity and protects against employment discrimination for medical needs related to gender identity.
  • The Americans with Disabilities Act (ADA) requires employers in the U.S. with 15 or more employees to provide reasonable accommodations to workers with disabilities and makes it illegal for employers to discriminate against workers with disabilities. Disability is defined as a physical or mental impairment that substantially limits one or more major life activities, which can include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. This means:
    • Your boss cannot fire you, refuse to give you a promotion, or harass you because you have a disability.
    • If you have a disability, your boss cannot refuse to give you small changes at work that you need to stay healthy, like breaks to take medication, temporary relief from heavy lifting, or a stool to sit on during your shift. These changes are called “reasonable accommodations” and are available as long as you can still complete the basic duties of your job with those changes. Your boss does not have to give you an accommodation that would be very difficult or expensive, like building a whole new office.

When a child or family member gets sick or injured—be it with a bad cold or a more serious illness or injury—you may need to take some time off from work to care for them. Federal, state, and local laws may give you time off when you need it and protect you from employment discrimination.

Taking Time Off From Work

  • If you work in New York City, the New York City Earned Safe and Sick Time Act gives you the right to time off if your family member is sick or injured, or needs to visit the doctor, without losing your job.
    • If your employer has 5 or more employees in NYC, you have the right to earn and take up to 40 hours of paid sick time a year, that you can use for a family member’s health needs, including physical/mental illness or injury.
    • Family members include children; spouses; registered domestic partners; parents; grandchildren; grandparents; siblings; and the parents of a spouse or domestic partner. As of May 5, 2018, you can also take sick time to care for any blood relative (such as an aunt, cousin, etc.) or any other individual whose close association with you is the equivalent of a family relationship (such as a close friend who is like family, a significant other, etc.). The definition of child under the law includes biological, adopted, or foster children, legal wards, or the child of a worker standing in loco parentis to the child.
    • If your employer has fewer than 5 employees in NYC, you still have the right to earn and take up to 40 hours of unpaid sick time, meaning that you can’t get fired or punished for needing time off.
    • Under this law, you earn sick time at the rate of one hour for every 30 hours you work. Call A Better Balance at 212-430-5982 if you have more questions and see here or here for more information about the law.
  • New York will become the fourth state in the country to guarantee paid family leave to care for a seriously ill family member, without losing your job. This includes serious physical and mental illness or injury. The state’s paid family leave program, under which benefits will start on January 1, 2018, will be the country’s most generous to date, setting a new standard.
    • In 2018, you will be able to take up to 8 weeks of leave a year to care for a seriously ill child, parent, parent-in-law, spouse, domestic partner, grandchild, or grandparent.
    • In 2018, you will receive 50% of your average weekly wages (so half your regular paycheck) up to a cap that will be set based on the statewide average weekly wage.
    • After taking leave under the law, you will have the right to get your job (or a very similar job) back. If you receive health insurance through your employer, that insurance must be continued on the same terms while you are on leave.
  • In New York State, if you lose your job because you need to take care of a sick or disabled family member, you may still be able to get Unemployment Insurance.
  • If you are covered, the Family and Medical Leave Act (FMLA) allows you to take up to 12 weeks of unpaid time off of work per year if a family member has a serious health condition—without losing your job (or your health insurance, if you have it through your employer). This includes serious physical and mental illness or injury.
    • Only about half of all private sector workers in the U.S. are covered by the law! To qualify, you must 1) work for the government or a company with 50 or more employees within 75 miles of your worksite and 2) have worked with your employer for at least 1 year and 3) have worked at least 1,250 hours in the year before taking leave.
    • If you are covered, you can use the 12 weeks to care for a seriously ill family member. Under the FMLA, covered family members include a worker’s child under the age of 18 (or an adult child unable to care for him or herself due to a physical or mental disability), spouse, and parent.
    • The FMLA defines “son or daughter” to include a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. For more information about protections the FMLA provides for LGBT families, see here.
    • You may also take the leave on an intermittent basis or may work on a reduced schedule to care for a seriously ill family member.
    • While you are on leave, if you receive health insurance through your employer, you have the right to keep your health insurance benefits.
    • When you return to work, you have the right to return to the same or a very similar job, unless you fall into a narrow exception.
    • If you have accrued paid leave from your employer, you may choose to use that paid time off concurrently with your FMLA time. Your employer can also require you to use your paid leave—including paid vacation, personal, or sick days—while you are taking FMLA leave.

Anti-Discrimination Laws

  • Employment discrimination based on family status is illegal across New York State in workplaces with 4 or more employees. Your employer may not fire or otherwise discriminate against you because you are a parent to a child under 18. In addition, Ithaca, Rye Brook, and Westchester Counties have laws that prohibit employment discrimination based on familial status or parental status.
  • In New York City, the Human Rights Law specifically protects workers in workplaces with 4 or more employees from discrimination based on their status as a family caregiver.
    • You are a caregiver if you provide care to a minor child (including biological, foster, or adopted children) or to a person with a disability that is your relative or resides in your home and relies on you for care. This can include your child, spouse, domestic partner, parent (including step-parents, foster, adopted, or biological parents), sibling, grandchild, grandparent, someone who lives in your home, or someone with whom you have a familial relationship.
    • For more information about the New York City caregiver discrimination law, see here.
  • The Americans with Disabilities Act (ADA) and the New York City Human Rights Law also ban unfair treatment of workers based on their relationship with a disabled person. The ADA covers workers in workplaces with 15 or more employees and the New York City Human Rights law applies to workers in workplaces with 4 or more employees. For example, your boss can’t cut your hours because he thinks you can’t work as hard because you have a child with asthma. Or your boss cannot assume that you will cost more on the company’s health insurance plan because your family member is seriously ill. However, neither law gives you the right, as the relative of a disabled person, to accommodations such as a schedule change.

 

If you or your family member are, or were, in the Armed Services, you may be entitled to additional workplace protections under federal, state, and local laws.

Taking Time Off from Work

  • New York will become the fourth state in the country to guarantee paid family leave to care for a seriously ill family member or bond with a new child. This includes serious physical and mental illness or injury. The state’s paid family leave program, under which benefits will start on January 1, 2018, will be the country’s most generous to date, setting a new standard.
  • In 2018, you will be able to take up to 8 weeks of leave a year to bond with a new child or care for a seriously ill child, parent, parent-in-law, spouse, domestic partner, grandchild, or grandparent.
  • In 2018, you will receive 50% of your average weekly wages (so half your regular paycheck) up to a cap that will be set based on the statewide average weekly wage.
  • For military families, New York State’s paid family leave law offers an additional type of leave for a “qualifying exigency,” based on a parallel protection under the federal Family and Medical Leave Act (FMLA). A qualifying exigency can occur when a worker’s spouse, domestic partner, child, or parent either is on active duty in a foreign country or has been notified of an impending call or order to active duty in a foreign country.
  • After taking leave under the law, you will have the right to get your job (or a very similar job) back. If you receive health insurance through your employer, that insurance must be continued on the same terms while you are on leave.
  • If you are covered, the Family and Medical Leave Act (FMLA) allows you to take up to 12 weeks of unpaid time off of work per year if a family member has a serious health condition—without losing your job (or your health insurance, if you have it through your employer). This includes serious physical and mental illness or injury.
    • Only about half of all private sector workers in the U.S. are covered by the law! To qualify, you must 1) work for the government or a company with 50 or more employees within 75 miles of your worksite and 2) have worked with your employer for at least 1 year and 3) have worked at least 1,250 hours in the year before taking leave.
    • If you are covered, you can use the 12 weeks to care for a seriously ill family member or your own serious illness or injury. Under the FMLA, covered family members include a worker’s child under the age of 18 (or an adult child unable to care for him or herself due to a physical or mental disability), spouse, and parent.
    • The FMLA defines “son or daughter” to include a biological, legally-adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. For more information about protections the FMLA provides for LGBT families, see here.
    • You may also take the leave on an intermittent basis or may work on a reduced schedule to care for a seriously ill family member.
    • While you are on leave, if you receive health insurance through your employer, you have the right to keep your health insurance benefits.
    • When you return to work, you have the right to return to the same or a very similar job, unless you fall into a narrow exception.
    • If you have accrued paid leave from your employer, you may choose to use that paid time off concurrently with your FMLA time. Your employer can also require you to use your paid leave—including paid vacation, personal, or sick days—while you are taking FMLA leave.

Special Protections for Veterans’ and Military Families

  • If you are covered by the FMLA, and a close family member is, or was, in the Armed Services, you may be entitled to additional protections under the FMLA.
  • The FMLA provides special protections for service-connected injuries or illnesses. If you are the spouse, parent, son, daughter, or next-of-kin of a veteran or a member of the Armed Services, including the National Guard and Reserves, you may be able to take military caregiver leave. You can take up to a total of 26 weeks of unpaid leave a year to take care of your military relative if he or she has a serious injury or illness stemming from his or her military service.
  • In addition to the ordinary protections under the Family and Medical Leave Act, if you have a parent, child, or spouse on or called to active duty service in a foreign country, you may be eligible for what is called “qualifying exigency” leave under the Family and Medical Leave Act to address certain needs arising out of that active duty service. This leave allows you to take up to a total of 12 weeks of unpaid leave a year.
    • This leave is available to address many different types of needs, including:
      • tending to the needs of the children of a service member, such as arranging childcare, attending meetings, or enrolling the child in a new school
      • making legal or financial arrangements for a military member
      • spending time with a servicemember on a short-term rest and recuperation leave
      • arranging care for the parent of a servicemember when the parent is unable to care for himself or herself.
    • Under another law, the New York Military Spouse Leave Act, a spouse or same-sex domestic partner of a member of the military forces that is on active duty (including the U.S. armed forces, National Guard, and reserves), and who works an average of 20 or more hours per week for an employer with 20 or more employees, can take up to 10 days of unpaid leave from work when the military spouse is on leave during deployment. The leave may not be used while the military spouse is away on active duty. It is illegal for employers to retaliate against an employee for using this leave.

Anti-Discrimination Laws

  • Under the New York State Human Rights Law, if you work for an employer with 4 or more employees, you cannot be discriminated against because you serve or served in the armed forces of the United States, the army national guard, the air national guard, the New York naval militia, or the New York guard.
  • For information about your rights with respect to employment discrimination based on family status or family caregiving responsibilities, see the first two bullet points under Anti-Discrimination Laws in the “Caring for a Loved One” section.

Life happens—and not always on a schedule. You may be caring for a child or older relative and may need to make some changes to your work schedule to attend to your family’s needs. There are several federal, state, and local laws that may help you attend to both your employment and familial needs.

Federal Law

  • If you are treated differently from your co-workers because of your caregiving responsibilities, and work for an employer with 15 or more employees, this may be a violation of Title VII of the Civil Rights Act of 1964. Such treatment might amount to illegal sex stereotyping under Title VII.
  • If you care for a family member with a physical or mental disability or illness, and work for an employer with 15 or more employees, the Americans with Disabilities Act protects you from unfair treatment based on your relationship with a person with a disability. For example, your boss can’t cut your hours because he thinks you can’t work as hard because you have a child with asthma. Or your boss cannot assume that you will cost more on the company’s health insurance plan because your family member is ill. However, the law does not give you the right, as the relative of a person with a disability, to accommodations such as a schedule change.
  • If you need to take leave under the Family and Medical Leave Act (FMLA) to take care of a seriously ill family member, it is unlawful for your boss to interfere with your right to use FMLA leave. Moreover, your boss cannot discriminate against you or fire you for using FMLA leave.

State & City Law

  • Employment discrimination based on family status is illegal across New York State in workplaces with 4 or more employees. Your employer may not fire or otherwise discriminate against you because you are a parent to a child under 18. In addition, Ithaca, Rye Brook, and Westchester Counties have laws that prohibit employment discrimination based on familial status or parental status.
  • In New York City, the Human Rights Law specifically protects workers in workplaces with 4 or more employees from discrimination based on their status as a family caregiver.
    • You are a caregiver if you provide care to a minor child (including biological, foster, or adopted children) or to a person with a disability that is your relative or resides in your home and relies on you for care. This can include your child, spouse, domestic partner, parent (including step-parents, foster, adopted, or biological parents), sibling, grandchild, grandparent, someone who lives in your home, or someone with whom you have a familial relationship.
    • For more information about the New York City caregiver discrimination law, see here.

Please note that each of these laws often covers certain categories of employees, but may not cover all types of employees. For example, special rules often apply to government employees. Additionally, different laws may have different standards to determine which health needs qualify for coverage. And, in many cases, more than one law may apply to your situation. If you have a question about whether you are covered under any of the laws mentioned, contact A Better Balance at 212-430-5982.


Call A Better Balance if you have any questions about your rights at work.

Our free hotline can provide you with information about your rights at work (or refer you to another attorney or legal organization in your area). The information provided here or in response to a Hotline inquiry does not constitute legal advice and does not establish an attorney-client relationship. If ABB chooses to represent you, then a retainer will be signed setting out the scope of the representation.

Call 212-430-5982

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