NYS Sick Time: Accrual, Frontloading, and Carryover

In New York, you earn one hour of sick leave for every 30 hours you work, starting on your first day on the job. That is the NYS sick time accrual rate, and it applies to every private-sector employee in the state regardless of industry, part-time status, or overtime exemption. How much you can bank in a year is capped at either 40 or 56 hours depending on the size of your employer, and whether those hours are paid depends on the same size tier.¹

How the 1-Per-30 Formula Works in Practice

Every hour on the clock counts toward the 30-hour threshold, including overtime hours. A standard 40-hour week produces roughly 1.33 hours of sick leave, or about 5.3 hours a month. Someone working 15 hours a week accrues at the same per-hour rate as someone working 50; only the pace of total accumulation changes.²

Accrual begins the moment employment starts. There is no probationary period before the clock starts running. Your employer can, however, require you to wait until your 120th calendar day of employment before you actually use what you’ve banked. Your balance grows from day one; the ability to draw on it may not.

Annual Caps by Employer Size

Everyone accrues at the same rate, but the annual ceiling on sick leave — and whether it is paid or unpaid — depends on how many people your employer has on the payroll. New York measures employer size by the highest number of employees working at the same time at any point during the calendar year.³

0–4 employees with net income of $1 million or less in the prior tax year: up to 40 hours of unpaid sick leave per calendar year.
0–4 employees with net income above $1 million in the prior tax year: up to 40 hours of paid sick leave per calendar year.
5–99 employees: up to 40 hours of paid sick leave per calendar year.
100 or more employees: up to 56 hours of paid sick leave per calendar year.¹

Because the small-employer income test looks at the previous tax year, a four-person business can move into the paid-leave tier the year after a strong financial year even if nothing else about the operation changes.²

The 1-per-30 formula could mathematically produce more than 40 or 56 hours in a heavy-overtime year. Your employer can cut off both accrual and annual use at the statutory cap for its tier. Someone at a 50-person company who works 1,800 hours would earn 60 hours under the raw formula, but the employer is free to stop the balance at 40.⁴

Frontloading Instead of Running Accrual

Employers can skip the running calculation and simply frontload the full annual amount at the start of the calendar year or at the start of employment. If they take that route, they have to provide the full 40 or 56 hours upfront based on the size tier.⁴

Frontloaded hours cannot be clawed back. If you receive 40 hours in January but work only enough hours over the year to have earned 25 under the accrual method, the employer cannot revoke the extra 15.¹ For employees, frontloading is generally the better arrangement because the full balance is available immediately.

Carryover and What Happens When You Leave

Unused sick leave at year end must carry over into the next calendar year. Your employer cannot run a “use it or lose it” policy that zeroes out your balance on January 1.¹

Carryover does not raise the annual use cap, though. If you carry 30 hours into a new year and accrue another 40, you may have 70 hours on the books at a 40-hour-cap employer, but you can still only use 40 hours during that calendar year. The rest stays on the ledger for future years.

One thing carryover does not create is a cash-out right. New York law does not require employers to pay out unused sick leave when you resign, retire, or are terminated.¹ Whatever balance sits on your record when you leave can simply expire with the job unless your employer’s own policy or a collective bargaining agreement says otherwise.

What You’re Paid When You Use It

Paid sick leave is paid at your regular rate of pay or the applicable minimum wage, whichever is higher.¹ For most hourly workers, that is the same rate as a normal shift. Tipped workers receive their regular hourly rate rather than the lower tipped minimum wage, because sick leave hours are not hours in which tips are being earned.

Paid sick leave hours are not “hours worked” for federal overtime purposes. If you take eight hours of paid sick leave during a 48-hour workweek, only the 40 hours you actually worked count toward the overtime threshold under the Fair Labor Standards Act.⁵ The hours you actually work still generate sick leave accrual at the 1-per-30 rate.

Checking Your Balance

Your employer has to track your accrual and usage and provide that information to you within three days of a request. You can ask for a written summary of your current balance at any time, and the employer must produce it within that window. If the numbers do not match what you expect, federal recordkeeping rules require employers to retain payroll records for at least three years and wage-calculation records for at least two years, so the underlying data should exist.⁶ Disputes over accrual, use, or retaliation can be brought to the New York State Department of Labor.

1
New York State Senate. New York Labor Law 196-B – Sick Leave Requirements
2
New York State. New York Paid Sick Leave
3
New York Codes, Rules and Regulations. Sick Leave Requirements – Section 196-1.4 Employee Counts
4
New York State. New York State Paid Sick Leave for Employers
5
U.S. Department of Labor. FLSA Hours Worked Advisor
6
U.S. Department of Labor. Fact Sheet 21 – Recordkeeping Requirements Under the Fair Labor Standards Act