On December 22, 2021, the New York State Department of Labor (“DOL”) adopted long-awaited Regulations for the New York Paid Sick and Safe Leave Law which went into effect on September 30, 2020. The Rules, codified as Section 196 to Title 12 of the NYCRR, address several key issues in response to public comments relating to (1) how to count the number of employees for purposes of determining leave; (2) how to calculate sick leave accrual; (3) carryover of accrued leave; and (4) documentation.
How Much Sick Leave is Provided?
The New York State Sick Leave Law requires all private employers to provide paid or unpaid annual sick leave. The type and amount of leave depends on the number of employees and the employer’s revenues in the prior tax year.
• Employers with 100 or more employees must provide up to 56 hours (7 days) of paid sick leave per calendar year.
• Employers with 5 to 99 employees must provide up to 40 hours (5 days) of paid sick leave per calendar year.
• Employers with 4 or fewer employees and net income of greater than $1 million in the previous tax year are required to provide up to 40 hours of paid sick leave per calendar year.
• Employers with 4 or fewer employees and net income is $1 million or less in the previous tax year are required to provide up to 40 hours of unpaid sick leave per calendar year.
How to Count Employees:
The number of employees is determined by the “highest total number of employed at any point during the calendar year,” and includes all employees nationwide, part-time and full-time must be counted. (Although only New York State based employees are eligible for leave).
What if the size of your work force changes during the year? If the workforce increases and moves to the higher threshold, employees must accrue additional leave from that date forward. If the workforce decreases, the employer cannot reduce the annual number of hours until the following calendar year.
How to Calculate Accrued Hours:
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.
Carry Over of Rules:
The NYS DOL confirmed that even where employers frontload the maximum amount of sick leave at the beginning of each calendar year, they must allow employees to carry over unused sick leave to the next calendar year. However, employers have the discretion to allow employees: (1) to use and be paid for sick leave prior to the end of a calendar year or to carry over unused sick leave; or (2) only to carry over unused sick leave. With both options, the Sick Leave Law explicitly permits employers to cap sick leave use in a calendar year at 40 hours or 56 hours, depending on employer size.
Employers may only require employees to provide medical verification for leave lasting three or more consecutive days or shifts. The DOL explained that employers cannot require that employees provide advanced notice for sick leave for foreseeable events, such as a pre-scheduled doctor’s appointment. As such, employers should not discipline employees who request time off for a doctor’s appointment at the last minute.
What Employers Should Do Now?
Employers should review their paid time off and sick leave policies to ensure compliance with New York law and consult counsel.