All about accrued sick leave in New York State for nannies and caregivers
Whether a nanny works full time or only a few hours each week, New York sick leave laws mean they accrue sick leave throughout the course of their employment. Here’s what families and caregivers should know about earning and using accrued sick leave in New York State – and what’s different in New York City.
What is accrued sick leave?
Sick leave allows employees to be away from work while sick, injured, or going to regularly scheduled doctor’s visits. Under New York State law, covered employees accrue at least one hour of sick leave for every 30 hours worked. Those hours accumulate over time, even when someone works a small weekly schedule.
Whether the leave is paid depends on the employer’s size and income. Typically most relevant for household employments in New York State:
4 or fewer employees and net income <$1 million: up to 40 hours unpaid
4 or fewer employees and net income >$1 million: up to 40 hours paid
5-99 employees: up to 40 hours paid
(For employers with over 100 employees, the law demands up to 56 hours paid.)
New York City specific rules for accrued sick leave
New York City has additional protections for domestic workers, including nannies and caregivers.
Under current NYC rules, domestic workers accrue paid protected time at one hour for every 30 hours worked, up to 40 hours per calendar year for employers with 1-99 employees. This means that nannies who are the sole employee of a family still accrue paid sick leave regardless of family income.
Domestic workers also receive 32 hours of unpaid protected time immediately upon employment and at the beginning of each calendar year. For an NYC family and caregiver, the difference here is not in how much sick leave is accrued (that’s the same) but that it is always paid sick leave.
Are nannies household employees?
The short answer is yes. Nannies and babysitters are household employees, which means they are also governed by New York State’s Domestic Workers' Bill of Rights.
Nannies are not 1099 contractors
We’ve said it before, and it bears repeating: a nanny or babysitter cannot be employed as an independent contractor, also called a “1099” because of the IRS form involved. The family controls both the work performed and how it is performed, meaning it is not independent work.
The IRS specifically lists nannies and babysitters as examples of household employees. Families and caregivers cannot simply agree to treat an employee as a 1099 independent contractor. Classification depends on the actual working relationship. (One exception is newborn care specialists, who may work as independent contractors.)
Are casual babysitters included in the sick leave laws?
New York distinguishes between regular domestic employment and some casual babysitting for certain domestic-worker protections. NY Department of Labor guidance describes casual work as intermittent or irregular rather than regularly scheduled.
For example:
A sitter called occasionally for date nights may be considered casual.
Someone who works for the same family every Saturday, however, generally isn't considered casual simply because the schedule is only a few hours per week.
These sitters are not covered by New York State’s Domestic Workers' Bill of Rights. However, because different employment laws have different definitions and exclusions, families and caregivers shouldn't assume that being called a “casual babysitter” automatically eliminates sick-leave rights.
When the set up gets murky
As a nanny agency, we’ve worked with lots of families and caregivers who’d have a hard time defining if their work set-up was regular or casual.
For instance, maybe a family has begun working with a sitter for a short-term set up in our Always On service. It’s not a placement, so it’s not a formal job at the start, with pre-negotiated benefits or accrued sick days written into the job contract. However, the family and sitter get along swimmingly, the family has continued need, and the relationship continues, now on a more regular basis but still confirmed month to month.
The family benefits from having the continuity of one stellar sitter, the sitter sets aside their availability regularly in anticipation of continued work. In cases like this, if the caregiver does get sick and they’ve worked regularly with the family (and have accrued enough hours), it would be appropriate for them to request legally accrued sick time.
Talk to us!
We know the waters get muddied with these ongoing, casual-to-regular set-ups, and how much parents value great caregivers when they find them. If you’re a family or a sitter within the Smart Sitting network, and you’re not sure what’s appropriate in your situation, contact us. We can help you walk through your exact situation and figure out what’s right in this instance. That’s why we’re here!
What does sick leave accrual look like in action?
So the bottom line is one hour of sick leave accrued for every 30 hours worked. It does not, however, matter how long it took for the caregiver to reach 30 hours worked in the year. The 30 hours can accumulate across multiple weeks.
A few examples:
Saturday morning sitter: A sitter works three hours every Saturday, taking the children to gymnastics on a regular schedule. After 10 weeks, they have worked 30 hours and accrued one hour of sick leave.
After-school sitter: A caregiver works Monday through Friday, 3-6 p.m. in New York City. That’s 15 hours per week, and they accrue one hour of paid sick leave every two weeks.
Part-time nanny: A nanny works 30 hours each week, on a regular schedule every week. They accrue one hour of sick leave per week.
It’s also important to note that a family may decive on sick leave terms above and beyond what the law stipulates. Some families may offer paid sick leave immediately whether or not the nanny has accrued it yet, to prevent contamination and spread. The law just lays out the minimum requirements.
Working as a nannny means being exposed to more germs than at an office jobs. If you’re a nanny, read our guidelines about when to come in to work, and when to stay home if your nanny kids are sick.
What if a nanny is paid off the books?
Being paid “off the books” does not automatically eliminate a caregiver’s status as an employee or their employment rights. An otherwise covered nanny can still accrue sick leave.
If protected sick leave is denied, a caregiver can raise the issue with the employer or file a complaint with the Department of Labor. Employers are prohibited from retaliating against employees for exercising protected rights.
For an off-the-books household, a dispute may expose broader compliance issues, including payroll records, employment taxes and worker classification. This is yet another reason why we as a childcare agency always recommend families to pay caregivers on the books. What may have started as a fight about a $250 sick day compensation suddenly turns into an investigation about tax fraud, and now both parties are on the hook for back pay and fines.
For both families and caregivers, keeping accurate records of hours worked, sick leave earned and sick leave used is one of the simplest ways to avoid confusion and ensure everyone understands the employment arrangement. This is especially helpful if you work with many sitters/for many families.
We also encourage families to put sick leave into their nanny job contract at the start of a working relationship. That way, everyone knows what to expect and can refer back to it the day when the nanny wakes up to find that little Timmy’s flu bug made its way into their lungs.
Need help figuring it out?
Employing a nanny – or getting a legit job as one – can feel daunting. Smart Sitting has nearly two decades of experience making thoughtful matches between caregivers and families, as well as helping to sort out the complicated details. If you’re looking for a caregiver or a job, learn more about our process and how we can help you reach that next step.