On December 22, 2021, the New York State Department of Labor (“NYSDOL”) adopted the proposed regulations on the New York State Paid Sick Leave (“NYSPSL”) Law. The regulations addressed the manner in which employees are to be counted for purposes of determining employer coverage under the NYSPSL Law, the extent to which employers can request documentation in connection with an employee’s use of sick leave, and sick leave accrual issues. The proposed regulations are now final and effective as of December 22, 2021.
Some of the key points employers should be aware of are as follows:
- Determining Employers Size: Under the Sick Leave Law, the amount of leave an employer is obligated to provide to its employees and whether it is paid depends on the size of the employer’s workforce as follows: (i) employers with four or fewer employees must provide 40 hours, which may be unpaid if the employer’s annual revenue is under $1 million , (ii) employers with between five and ninety-nine employees must provide 40 paid hours , and employers with one hundred or more employees must provide 56 paid hours. For purposes of determining an employer’s headcount and therefore its obligations under the NYSPSL Law, NYSDOL “interprets the statute to include all employees of the employer nationwide. However, the requirement for sick leave applies only to employees in New York State.”
- Documentation: Pursuant to the regulations, employers can request documentation from employees who use sick leave for three or more consecutive scheduled workdays or shifts. However, this documentation is strictly limited to: (1) an attestation from a licensed medical provider supporting the existence of a need for sick leave, the amount of leave needed, and a date that the employee may return to work; or (2) an attestation from an employee of their eligibility to leave.” NYSDOL intends to publish a template employee attestation form. New York City employers should note that the City’s Earned Safe and Sick Time Act (“ESSTA”) prohibits employers from requesting documentation until after an employee has been out for three consecutive workdays.
- Determining Accrual of Leave: The Sick Leave Law mandates that employees accrue one hour of leave for every 30 hours worked. When determining accrual for time worked in increments of less than 30 hours, employers may round accrued leave to the nearest 5 minutes, one-tenth, or quarter of an hour. However, such rounding cannot, over time, result in a failure to provide for the proper accrual of leave to employees for the time they have actually worked.
- Carryover of Unused Leave: NYSDOL confirmed that there is “[n]o limitation” on the number of hours employees can carry over to the following year, even where the employer frontloads leave time at the start of each year. However, NYSDOL stated: “[w]hile the statute requires that employers carry over unused sick leave to the next calendar year, employers may do one of the following: (1) give employees the option to voluntarily elect to use and receive payment for paid sick leave prior to the end of a calendar year or carry over unused sick leave; or (2) only allow employees to carry over unused sick leave.” Thus, employers may avoid carry over for employees who exercise an option to receive a payout of unused accruals at the end of the year. In addition, even where employees carry over unused sick leave, the NYSPSL Law allows employers to cap sick leave use at 56 hours or 40 hours, as applicable, per year based upon the employer’s size.
The NYSDOL did not revise the regulations to require employees to provide advanced notice for foreseeable use of sick leave. NYSDOL felt that “it would be difficult to create separate categories governing and classifying foreseeability.” In addition, the NYSDOL provided that it is not creating a different “joint employer” standard for NYSPSL purposes and will defer to “existing and settled law, court decisions, and guidance on joint employers.”
Employers should review their current sick leave and safe time policies and procedures to ensure they comply with the regulations. Should you have any questions or need assistance, please contact ALG.