New York: DOL Issues State Sick Leave Law Final Regulations

APPLIES TO

All Employers with NY Employees

EFFECTIVE

December 22, 2021

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At the end of 2021, the New York Department of Labor (NY DOL) issued final regulations on the New York State Sick Leave Law. The regulations provide clarification on how employers should be administering statutory state paid sick leave.

Employee headcount. Employers must use their nationwide headcount to determine if they need to comply with the law. Employers should use the highest number of employees they had nationwide during the calendar year. Part-time, jointly employed, and employees on leave that are reasonably expected to return should be included in the headcount.

Frontloading sick leave. Employers who frontload sick leave each calendar year cannot limit the number of sick leave hours an employee can carryover to the next calendar year.

Fractional sick leave. Employers must allow employees to accrue sick leave on a fractional basis. The regulations state that “employers may round accrued leave to the nearest 5 minutes, or to the nearest one-tenth of quarter of an hour.”

Employee notice requirements. The final regulations do not require employees to provide advanced notice. In addition, employers cannot require employees to use paid sick leave, as opposed to an unpaid absence, when employees are taking time off for a reason covered by the Paid Sick Leave Law.

Length of service requirement. Employees, including new employees, must be allowed to use sick leave as soon as they have earned it.

Support Documentation. Employers may only request documentation related to paid sick leave when an employee uses leave for three or more consecutive workdays. Even then, employers may only request documentation that verifies the employee’s eligibility to use covered sick leave, including:

Attestation from a medical provider stating that sick leave is needed, the amount of leave required, and the date the employee can expect to return to work; or
Attestation from the employee that they are eligible to use sick leave.

Rate of pay. The Paid Sick Leave Law requires that employees are paid at their regular rate of pay or the applicable minimum wage, whichever is higher. The final regulations state that employers should use existing New York Labor Law and regulations to calculate the rate of pay. Generally speaking, this means that the regular rate of pay is the rate used to calculate overtime premiums owed. Employers should not use the employee’s base pay rate or the amount the employee would have earned had they worked the days they missed.

Action items

Review the regulations here.
Have paid sick leave policies updated for compliance.
Review rate of pay calculations to ensure pay is correct when taking paid sick leave.
Have appropriate personnel trained on the new requirements, including when documentation may be requested.
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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.