New York issues final regulations for State Sick Leave Law

On December 22, 2021, the New York State Department of Labor (“NYDOL”) issued final regulations for the New York State Sick Leave Law (“NYSSLL”), which has been in effect since September 30, 2020. While the final regulations do not contain any changes to the rules initially proposed on December 9, 2020, the regulations provide additional clarification regarding some NYSSLL requirements. For instance:

Carry Over

All accrued sick leave must be carried over into the following year. The final regulations clarify that employers may not cap the amount of accrued but unused sick leave that employees can carry over to the following year, even when employers “front load” the leave. An employer has two options: (1) allow employees the option to cash out unused paid sick leave at the end of the calendar year; or (2) allow employees to carry over unused sick leave as the only option. Regardless, an employer may not impose a “use it or lose it policy” with respect to paid sick leave.

Amount of Sick Leave

The amount of annual leave an employer must provide is determined by the employer’s size and net income in a given year. The regulations clarify that in determining employer size, employers should count all company employees nationwide, even though the NYSSLL leave needs only to be provided to employees in New York State.

Rate of Pay for Sick Leave

Sick leave must be paid at the employee’s regular rate of pay, or the applicable minimum wage, whichever is greater. In response to a request to clarify the method for determining “regular rate of pay,” the NYDOL referred commenters to existing Labor Law, NYDOL regulations, guidance, and case law.

Timing and Notice Requirements

The regulations clarify that employees are permitted to take NYSSLL leave immediately upon hire and employers may not impose a waiting period for use of sick leave. Further, the regulations declined to provide an advance notice requirement for employees requesting leave – even for foreseeable events. Practically speaking, there is no distinction between emergency visits and regular doctors’ appointments for employees taking NYSSLL leave.

Supporting Documentation and Attestation

The NYSSLL prohibits employers from requiring the disclosure of confidential information, including the nature of an illness, its prognosis, treatment and other related information, as a condition of providing leave. The law, however, is otherwise silent on what documentation, if any, employers can require for using such leave.

The new regulations confirm that an employer may request supporting documentation after an employee is absent for three or more days, and further note that the NYDOL will produce an employee attestation template. Employers are not permitted to deny sick leave when requested documentation is unattainable due to associated costs. Moreover, 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. Employers are cautioned to not penalize or otherwise retaliate against an employee for submitting such a request or attestation.

Employers are urged to review their paid time off and sick leave policies to ensure they comply with the New York law and regulations.