On December 2, 2020, the New York Department of Labor issued long-anticipated draft regulations under the New York Paid Sick Leave Law. Companies across New York have been preparing for the new law, which becomes operative on January 1, 2021. Earlier informal State guidance left many important questions unanswered. Unfortunately, the same is true of the proposed New York paid sick leave regulations.

The DOL is expected to accept public comments on the proposed regulations before finalizing them. Details on the comment period and whether the DOL will initially implement the regulations on an emergency basis were not included with the original release of the proposed regulations on this NYS website.

Update: The DOL published the proposed regulations in the New York State Register on December 9, 2020. There is a 60-day comment period that will end on February 8, 2021. Final regulations will not be in place until sometime after that.

As drafted, the regulations provide several definitions of terms in the law and address documentation, employee counting, and accrual issues. They do not tackle some critical open questions, including the interplay of the new law and existing collective bargaining agreements.

This webinar provides more details regarding employers’ obligations under the New York Paid Sick Leave Law.

Definitions

The proposed New York paid sick leave regulations define nine terms used in the law.

For the following terms, the regulations reference preexisting definitions/explanations from other NYS statutes:

• Domestic Partner
• Family Offense
• Human Trafficking
• Mental Illness
• Net Income
• Sexual Offense
• Stalking

The regulations introduce new definitions for two phrases:

“Confidential Information means individually identifiable health or mental health information, including but not limited to, diagnosis and treatment records from emergency services, health providers, or drug and alcohol abuse prevention or rehabilitation centers. Confidential information also means information that is treated as confidential or for which disclosure is prohibited under another applicable law, rule, or regulation.”

“Preventative Medical Care means routine health care including but not limited to screenings, checkups, and patient counseling to prevent illnesses, disease, or other health problems.”

Documentation

A section with the heading “documentation” expands on statutory restrictions prohibiting employers from seeking information from employees to substantiate their sick leave usage.

The law provides that “An employer may not require the disclosure of confidential information relating to a mental or physical illness, injury, or health condition of such employee or such employee’s family member, or information relating to absence from work due to domestic violence, a sexual offense, stalking, or human trafficking, as a condition of providing sick leave.”

Employers have wondered what, if any, documentation they may require to corroborate sick leaves.

3 or More Consecutive Days

The DOL first draws a bright line based on the length of leave. Employers may not require any verification for leaves of less than three consecutive “previously scheduled workdays or shifts.”

If an employee seeks sick leave for three or more consecutive days, their employer may request limited documentation to substantiate the need for leave.

Limited Documentation

The proposed regulations address this scenario as follows.

Requests for documentation shall be limited to the following:

(1) 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

(2) An attestation from an employee of their eligibility to leave.

It is ambiguous whether the employer can insist on either one of the above categories of documentation. Presumably, many employers would find the doctor’s attestation somewhat more authoritative than the employee’s. But it seems unlikely that such documentation is available for the “safe leave” categories covering absences due to domestic violence and related situations. In those cases, employers likely must accept the employee’s attestation.

The proposed New York paid sick leave regulations further reiterate that “An employer cannot require an employee or the person providing documentation, including medical professionals, to disclose the reason for leave, except as required by law.”

Employee Counts

Some employers have found themselves uncertain how much leave they had to provide employees or whether it had to be paid leave.

Coverage Factors

By law, employers with up to 4 employees must provide employees with at least 40 hours of unpaid sick leave each year. However, employers of this size who had net income over $1 million in the previous tax year must pay employees for this leave.

Employers with between 5 and 99 employees must provide employees with at least 40 hours of paid sick leave each year.

Employers with 100+ employees must provide employees with at least 56 hours of paid sick leave each year.

Neither the law itself nor the State’s initial informal guidance clearly explained how to count employees to determine into which category they fall.  Fortunately, the proposed New York paid sick leave regulations expand on this subject.

Counting Employees

Essentially, the DOL proposes that the paid/unpaid and 40/56 hours thresholds will always be determined based on the largest number of employees the employer has had on any day to date within the current calendar year (e.g., 2021, 2022, etc.).

For example, if an employer starts 2021 with 95 employees, they must allow employees to begin accruing up to at least 40 hours of paid sick leave that year. If, however, the company hires more employees, bringing them up to 100 or more on any day, then, at that point, the employer must increase the maximum annual accrual and usage to 56 hours prospectively. The maximum accrual/usage would not fall back to 40 hours for the rest of the year under any circumstances. Even if the company let everyone go except one person, the last employee could still earn and/or use up to 56 hours of paid sick leave that year. However, on January 1, 2022, the employer could reset its obligations based on the number of employees as of that date, subject to future increases during the year.

When the employee count crosses a new threshold, the employer does not have to retroactively give any additional sick time based on hours worked before the employer moved into the new coverage category. But this counting mechanism means that employers close to a new employee threshold should carefully track their employee count and make immediate changes to their sick leave policy when the 5th or 100th employee joins the company.

Who Counts?

The proposed regulations note that employees count toward the total for any day even if they are on paid or unpaid leave, disciplinary suspension, “or any other type of temporary absence . . . as long as the employer has a reasonable expectation that the employee will later return to active employment.” Conversely, employees who have been laid off or separated from employment would not be counted.

Irreconcilable Differences?

The law and proposed regulations require that the employee count be based on the standard calendar year. However, the law permits employers to structure their annual sick leave accruals and usage caps based on any other 12-month period. This divergence could create some confounding scenarios and may warrant clarification, if possible, before the DOL finalizes these regulations. But, for now, it seems employers must look back as far as the most recent January 1st to count employees even if their plan year started on a different date.

Accruals

In their final section, the proposed New York paid sick leave regulations briefly address the subject of leave accruals. By default, the law requires that employees earn sick leave at the rate of at least one hour of leave for every 30 hours worked.

The regulations first note that “Employee accruals of leave must account for all time worked, regardless of whether time worked is less than a 30-hour increment”. In other words, an employee who works 35 hours in a week doesn’t only accrue one hour of sick leave that week. Instead, they accrue one full hour, plus some fraction of an hour. The DOL further allows that employers may round accrued leave to the nearest 5, 6, or 15 minutes. But the rounding must not “result, over a period of time, in a failure to provide the proper accrual of leave to employees for all the time they have actually worked.”

Initial Reaction to the Proposed New York Paid Sick Leave Regulations

Employers must comply with the New York Paid Sick Leave Law by January 1, 2021. That does not allow enough time for the DOL to accept and meaningful review the anticipated volume of comments this proposal will invite. (Update: Comments are due by February 8, 2021.) The DOL may be able to implement the proposed regulations temporarily on an emergency basis. Whether that happens or not, employers should generally try to follow the proposed regulations. Or at least should obtain advice from an experienced New York employment lawyer before deciding not to do so.

In any event, these proposed regulations do not answer all the reasonable questions raised by the new law. And the law applies to all private employers in the state, creating new financial obligations for many of them. So, concerted efforts (from both employer and employee interests) to obtain additional DOL clarification seem likely.

For more on the New York Paid Sick Leave Law, watch this recorded webinar.

For further updates related to these new requirements, follow Horton Law on LinkedIn.