As discussed in this blog previously (New York Releases Guidance Related to New Paid Sick Leave Law and also NYS Paid Sick Leave Law Now in Effect and Presenting Many Employers with a Dilemma), New York State now has mandatory sick leave for all employers and employees. The accrual of that time began as of September 30, 2020, and employees will be able to start using the sick leave on January 1, 2021. Earlier this week, the New York State Department of Labor “(DOL”) released some additional proposed regulations which will supplement other sick leave regulations previously issued. Interested parties are invited to submit comments about the proposed regulations to the DOL, and we would be happy to facilitate any such submission.
The proposed new regulations include definitions of the terms of art used in the Sick Leave law, and are mostly standard. The most important section of the proposed new regulations concerns when employers may require documentation from employees using sick leave. Upon the new proposed regulation, employers may require medical or other verification only if the employee uses sick leave for three or more previously scheduled workdays in a row. Employees will not be required to pay for the medical or other verification, nor will they have to provide confidential information about the “illness, its progress, treated or other related information, nor … any details or information regarding [safe] leave”. Accordingly, the employer request for documentation will be limited to:
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 attestation from an employee of their eligibility to use sick leave.
The second section of the new proposed regulations relates to the method of determining the number of employees employed, which governs whether and how much sick leave is required. (For employers with 4 or less employees, 40 hours of unpaid sick leave is required; for employers with 5-99 employees or net income greater than $1M, 40 hours of paid sick leave must be provided; and for employers with 100 or more employees, 56 hours of paid sick leave is required.) The employee count under the new proposed regulation will be determined by counting the highest number of employees employed concurrently at any point during the calendar year to date. For employers increasing in size during a calendar year above one of the thresholds above, the accrual of additional leave begins at that time, though employees will not become entitled to reimbursement for previously used unpaid leave or to the use of more than the required amount of paid leave. Prior accruals of used and unused paid leave, and used unpaid leave, may be credited towards the increased paid leave obligations. Also, employees do retain all existing accrued paid and unpaid leave, regardless of the increase in the number of employees during a calendar year. A reduction in the number of employees does not reduce the paid sick leave requirement until the following calendar year. Other provisions in this section will dictate that all part-time employees, joint employees and employees on leave count, except for those actually terminated/laid off.
The final section of the new proposed regulations could be the trickiest for employers who do not have effective time-keeping systems. Even though the sick leave law provides that accrual is 1 hour of sick leave for every 30 hours worked, employers must account for all time worked, even time worked in less than 30 hour increments, in the employee sick leave accrual accounts. For those time-worked increments of less than 30 hours, employers will be required to round accrued leave to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour, provided that the employee will not be short-changed over time.
Please do not hesitate to contact us to submit comments to the DOL on these proposed new regulations, or to discuss how they will impact your business.
If you have any questions regarding the issues discussed above or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul Keneally, the author of this piece, here or at (585) 258-2882.
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