New York – Paid Sick Leave Law
Under this blog, we had previously discussed in detail the New York State Paid Sick Leave law (“NYSPSL”) which went into effect on January 1, 2021. The law went into effect on September 30, 2020, for accrual purposes and employees were able to access their accrued sick leave from January 1, 2021, onwards.
On December 22, 2021, the New York Department of Labor (Department) released final regulations with regards to the NYSPSL. The final regulations provide further clarity to the rules initially proposed on December 9, 2020.
Amount of Leave
Under the new sick leave provisions:
- Employers with 4 or fewer employees and a net income of $1 million or less in the previous tax year are required to provide 40 hours of unpaid 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 40 hours of paid sick leave per calendar year.
- Employers with 5 to 99 employees must provide 40 hours of paid sick leave per calendar year.
- Employers with 100 or more employees must provide 56 hours of paid sick leave per calendar year.
According to the NY Department of Labour, the statute shall be interpreted to include all the employer’s employees nationwide in order to calculate the number of employees for the leave accrual, but only employees working in New York must be provided sick leave under the New York State Sick Leave Law.
In order to calculate the number of employees, a “calendar year” is defined as the 12-month period from January 1 through December 31. For the purposes of using and accruing leave, a “calendar year” means either January 1 through December 31 or any regular and consecutive 12-month period.
Employees must accrue sick leave at a rate of at least 1 hour for every 30 hours worked. The final rule requires that accrual must account for all the time worked and to calculate accrual, employers may round off the accrued leave to the nearest 5 minutes, or the nearest one-tenth or quarter of an hour. An employer can fulfill their obligation under the law by providing the full amount of sick leave in a lump sum at the beginning of each year alternatively.
Reason for Leave
An employee may use sick leave for the following reasons:
- Mental or physical illness, injury or health condition of an employee or the employee’s family member (regardless of whether a diagnosis has been obtained);
- Diagnosis, care or treatment of a mental or physical illness injury, or health condition of, or the need for medical diagnosis of, or preventative care for, the employee or employee’s family member; or
- Absence when an employee or employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking and seeks or obtains services, including from a shelter, attorney or law enforcement, or takes “any other action to ensure the health or safety of the employee or family member or to protect those who associate or work with the employee.
A family member includes an employee’s child (including foster child, legal ward, or equivalent legal relationship), spouse, domestic partner, parent (including a step- or foster parent, legal guardian, or equivalent legal relationship), sibling, grandchild, grandparent, and the child or parent of an employee’s spouse or domestic partner.
An employer may set a reasonable minimum increment at which leave must be used; however, this increment may not exceed 4 hours.
Sick Leave Pay
Compensation must be at the employee’s regular rate or the minimum wage, whichever is greater.
Documentation to Support Use of Sick Leave
Employers may require employees who use sick leave for 3 or more consecutive workdays to submit documentation to support the use of such leave. Employees who take less than 3 consecutive days of sick leave may not be asked to provide documentation to support the leave. Employers may request the following types of documentation:
- an attestation from a licensed medical practitioner 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 leave.
The Department of Labor will publish a template for employee attestations. The documentation may not require the disclosure of “confidential information” relating to the covered reason for taking sick leave.
Unused sick leave carries over to the following year, though employers with fewer than 100 employees may limit the use of sick leave to 40 hours per year, and employers with 100 or more employees may limit the use of sick leave to 56 hours per year.
Employers may (but are not required to) give employees the option to voluntarily elect to receive payment for any unused sick leave at the end of the year as an alternative to carrying over that time into the next year.
Advanced Notice Requirement
The Department of Labor stated that the employer is not required to be given advance notice for foreseeable events which would require an employee to take sick leave. Therefore, employers may not impose an advance notice requirement. Instead, an employee must only make a verbal or written request to use sick leave prior to using such leave.
An employer is required to track the amount of sick leave provided to each employee and maintain this information in its payroll records for a duration of 6 years. Employers will be effectively required to track paid sick leave accrued and used by employees separately.
New York State employers need not provide additional leave if they already maintain a sick leave or other paid leave under their employment policy that provides employees with the same or greater amount of leave as required under the law and which otherwise satisfies the law’s accrual, carryover, and usage requirements