Tag: employee benefits

January 9, 2022

Final NYS Sick Leave Rules Remain Unchanged, Yet Offer New Guidance

On December 22, 2021, the New York State Department of Labor adopted final regulations regarding the New York State Paid Sick Leave Law. The DOL adopted the rules as originally proposed on December 9, 2020, with no changes. However, in giving notice of the final adoption of the NYS sick leave rules, the DOL responded to many comments it had received on the proposed rules.

While still leaving many concerns unresolved, the DOL has provided some additional guidance to employers. Here’s a look at several key issues the DOL reviewed.

Carry Over

The New York Paid Sick Leave Law provides that employees can carry over unused sick leave from one year to the next. But it also permits employers to limit their employees’ use of sick leave to the statutory level (40 or 56 hours based on employer size) each year. Consequently, many employees will accrue sick leave that they’d never be eligible to use.

Especially where employers frontload sick leave meeting or exceeding the annual statutory requirement, the carryover requirement is at least a pointless administrative hassle. But it creates more tangible trouble in some cases, including situations where employers include sick leave with other forms of paid leave. This leave aggregation is permissible under the sick leave law. However, the law then seemingly requires that all such paid leave time must be carried over from year to year if unused, even where, as is often the case, the annual paid time off allowance exceeds the statutory sick leave mandate.

The DOL responded directly to three related carry-over questions. Unfortunately, their responses don’t offer much relief to employers struggling with the administrative or substantive mischief the carry-over conundrum can create. The DOL went further to emphasize the significance of the statutory carryover provision: “While the Department understands there may be occasional conflicts between an employer’s existing leave policies and the statute, the statute permits such alternative compliance so long as the standards set in the accrual, use, and carryover provisions are met”. Ironically, the DOL otherwise notes the potential benefits of frontloading sick leave “to avoid added complexity” in calculating leave accrual.

The DOL has found room to allow employers the option to let employees cash out some of their unused sick leave at the end of the year rather than carry it over to the next year.

Employee Rights

The DOL responded to two suggestions under this heading. One seemingly sought to restrict employee rights to use sick time. Another sought to expand on employee protections.

One commenter wanted to prevent new employees from using sick leave immediately upon accrual, fearing the risk of sick leave abuse. The DOL indicated that the law would not permit such a limitation.

Another commenter wanted the rules to include information on employees’ ability to file complaints and be free from retaliation for exercising their rights to use sick leave. The DOL noted that such provisions are already otherwise established by law.

In response to another comment (listed under “Other Leave Usage”), the DOL offered the general assertion that “The Department declines to opine on any potential conflict with existing state or federal statutes, apart from asserting that none are believed to exist.”

Collective Bargaining Agreements

The DOL made one response to comments on the NYS sick leave rules specifically addressing unionized workplaces. The DOL dismissed all comments seeking specific direction related to collective bargaining agreements because “These comments are outside the scope of this rulemaking, which does not directly address CBAs.” Not particularly helpful.

Employee Count

On the other hand, while finding the issue not to be “addressed in this rulemaking,” the DOL nonetheless offered its interpretation that employer coverage under the NYS Paid Sick Leave Law is based on their total U.S. employee count. In other words, not only employees working in New York.

The DOL offered no revision in response to comments on the rule requiring employers to count the highest number of concurrently employed employees. However, it indicated that it “may provide additional guidance for clarity as necessary.”

The DOL declined to address joint employer situations. Instead, it deferred to “existing and settled law.”

Documentation and Attestations

In response to commenters’ suggestions, the DOL indicated it will produce a template for employee attestations.

The agency also warns employers to be cautious when questioning sick leave usage: “An employer may not deny an employee leave while attempting to confirm the basis for the leave. If, however, the employer discovers the request to be false or fraudulent, disciplinary action may be taken against the employee”. The DOL goes on to warn of potential retaliation claims for improperly denying leave or disciplining employees who take it. There is also clarification that even when an employer fears abuse, it may not require documentation for leave less than three days.

The DOL also “declines to create a separate notice requirement for foreseeable leave.”

Notice to Employees

Commenters suggested that the DOL’s NYS sick leave rules include a requirement that employers provide notice of the law’s requirements to employees. The DOL declined to impose such an obligation on employers.

Payment Issues

In response to a comment for clarification of when employers must pay for used sick leave, the DOL confirmed that failing to pay sick leave is “equivalent to a failure to pay employee wages.”

The DOL likewise declined to amend the NYS sick leave rules to define the regular rate of pay. Instead, it offered that “Methods for determining the employee’s regular rate of pay already exists within the Labor Law, the regulations of the Department of Labor, relevant case law, and guidance.”

Overall Message to Employers

Not so subtly, the DOL’s commentary on the adoption of the NYS sick leave rules conveys a refusal to revisit the subject meaningfully. Among other assertions, the DOL dismissively asserts, “The current guidance and FAQs are sufficient in the areas referenced [by commenters] and as such topics are outside of the scope of the rule, no further response is appropriate.” It is disappointing that the DOL chooses to knowingly leave its guidance out of formal rulemaking in favor of addressing it in casual documents with significantly less legal weight. As such, employers are left with various compliance dilemmas in addition to the underlying cost of providing paid leave. It’s even more frustrating that the law complicates leave policies for employers who were already offering more paid time off than the law requires.

For more legal updates of interest to New York employers, follow Horton Law on LinkedIn.

December 3, 2020

Proposed New York Paid Sick Leave Regulations

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.

November 12, 2020

New York Paid Sick Leave (Webinar Recap)

On November 12, 2020, I presented a complimentary webinar called “New York Paid Sick Leave”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

Accrual, Use, and Payout
Notice Requirements
Overlap with Other Laws
Recordkeeping
Policy Considerations

Beginning January 1, 2021, New York companies must provide employees sick leave. Many businesses must pay employees for this time off, up to 40 or 56 hours per year, depending on employer size.

There are many ambiguities in the New York Paid Sick Leave Law. Recent State guidance addresses several issues, but leaves many others unanswered. This webinar addresses what is known and tries to help fill the gaps.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “New York Paid Sick Leave”

Every private (non-governmental) employer in New York State must provide sick leave to employees beginning January 1, 2021. For many, this will be a company-paid benefit. Despite a seemingly straightforward concept, the implications of this new requirement are potentially complex. Questions include how to administer accrual, what to put in your policy, and how the new law interacts with other legal obligations.

This webinar starts with the basics and builds up to the detailed questions that employers are asking. Can you combine sick leave with other forms of leave? How does frontloading sick leave work? What about part-time employees?

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