On December 22, 2021, the New York State Department of Labor (“NYSDOL”) adopted final regulations (“Regulations”) regarding the New York State Paid Sick Leave Law (“Sick Leave Law”). The Regulations largely mirror the proposed rules that were issued in December 2020 and reflect the NYSDOL’s responses to public comments on the proposed rules.
Background on the Sick Leave Law
The Sick Leave Law provides that, starting on September 30, 2020, employees in the State of New York must begin accruing sick leave and must be allowed to begin using this leave beginning on January 1, 2021. The Sick Leave Law applies to all employers in the State of New York, but the amount of leave required to be provided, and whether the leave is required to be paid or unpaid, depends on the employer’s size and net income. Specifically:
- Employers with 4 or fewer employees in the calendar year and a net income of $1 million or less in the prior tax year must provide each employee at least 40 hours of unpaid sick leave each calendar year.
- Employers with 4 or fewer employees in a calendar year and a net income of more than $1 million in the prior tax year and employers with between 5 and 99 employees in a calendar year, regardless of net income, must provide each employee at least 40 hours of paid sick leave each calendar year.
- Employers with 100 or more employees in any calendar year, regardless of net income, must provide each employee at least 56 hours of paid sick leave each calendar year.
The Sick Leave Law requires, at a minimum, that sick leave, whether paid or unpaid, accrue at a rate of 1 hour of leave for every 30 hours worked. Alternatively, an employer may make the total amount of required sick leave available to employees at the beginning of each calendar year, provided the employer does not later reduce available sick leave based on the actual hours worked by an employee. Paid sick leave must be paid at the greater of: (1) the employee’s regular rate of pay, or (2) the applicable minimum wage. Employers must allow unused sick leave required by the Sick Leave Law to be carried over to the following calendar year. However, an employer with fewer than 100 employees may limit the amount of sick leave taken by any one employee to 40 hours per calendar year and an employer with 100 or more employees may limit the amount of sick leave per employee to 56 hours per calendar year.
An employer is not required to offer sick leave as required under the Sick Leave Law if the employer enters into a collective bargaining agreement on or after September 30, 2020 that provides a “comparable benefit” for employees in the form of leave, compensation, or other employee benefits (or some combination thereof), provided the collective bargaining agreement specifically acknowledges the Sick Leave Law.
Regulations
Verification of Eligibility
As explained by the Regulations, an employer may request verification of eligibility for use of sick leave that lasts for three or more consecutive workdays or shifts. However, the employer cannot require an employee to pay the costs of obtaining the verification or require the employee to provide confidential information, such as the nature of the illness or other circumstances that required the use of leave. The form of the verification is limited to either 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 an employee can provide their own attestation explaining their eligibility for sick leave. The NYSDOL intends to provide a template for employee attestations.
Determination of Employee Headcounts
To determine the amount of leave an employer is required to offer, and whether the leave is required to be paid or unpaid, the Regulations provide that the number of employees should be determined by counting the highest total number of employees concurrently employed at any point during the calendar year up to the date that the employer is making the determination. The NYSDOL further clarified this rule in response to public comments, explaining that it interprets the statute to require the employer’s headcount to include all employees of the employer nationwide even though the requirements under the Sick Leave Law only apply to employees located in New York.
The Regulations also provide that any reduction in the number of employees employed by an employer in a given year will not affect the sick leave entitlements under the Sick Leave Law until the following calendar year. Additionally, employees who are on leave should be included in the headcount and employees jointly employed by more than one employer must also be counted by each employer.
Accrual of Sick Leave
As explained above, the Sick Leave Law requires that sick leave must accrue at a rate of 1 hour of leave for every 30 hours worked. For time worked in less than 30-hour increments, the Regulations provide that employers may round the accrued leave to the nearest five minutes, tenth of an hour or quarter of an hour, so long as there is not a shortage of accrued leave over time.
Compliance with the Sick Leave Law and Regulations
Employers are not required to provide additional sick leave if the employer’s existing leave policy satisfies the requirements under the Sick Leave Law for the accrual, use, and carryover of sick leave. For example, while the Sick Leave Law requires employers to allow unused required sick leave to be carried over to the following calendar year, the NYSDOL clarified that employees can still give employees the option to use and receive payment for paid sick leave prior to the end of a calendar year, provided that they also give them the option to carry over unused sick leave. Thus, employers who already had a policy of paying for unused time off prior to the enactment of the Sick Leave Law can still provide that option under the Sick Leave Law.
Finally, the NYSDOL notably did not respond to questions from commenters related to collective bargaining agreements, leaving open questions about what constitutes “comparable benefits” sufficient to comply with the Sick Leave Law.
Please contact Slevin & Hart if you have questions about the New York State Paid Sick Leave Law and related regulations.
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