Key Takeaways:

• Employers may allow employees to cash out unused paid sick leave at the end of the year, but must provide employees the opportunity to cash out or carry over the leave at the employee’s option.

• Employers with workplace safety committees that are already in place that comply with the law need not form new committees.

• Unanswered questions remain regarding comments and responses to the New York Paid Sick Leave Law.

On December 22, 2021, the New York State Register was released and includes new information regarding regulations interpreting the New York Paid Sick Leave Law (NY PSL) and New York State’s HERO Act. We previously reported on NY PSL and the HERO Act and how this may impact your business. 

NY PSL Adopted Regulations

Nearly two years ago NY PSL was enacted through the New York State 2020-21 budget process. Despite an effective date of September 30, 2020, proposed regulations further interpreting NY PSL law were not released until December 2020. More than a year since the release of the proposed regulations the New York State Department of Labor (DOL) has adopted final regulations. While the State Register includes public comments that were submitted, and responses to the same, the proposed regulations were adopted with no changes.

The comments and responses to NY PSL provide guidance on some issues, while some unanswered questions remain. Significantly, employers may have a practice of cashing out unused paid sick leave for employees at the end of the year provided that employees are given the option to either cash out unused paid sick leave or carry it over. Alternatively, an employer can choose to allow employees to carry over the sick leave as the only option, but employers cannot impose a “use it or lose it” policy upon employees for paid sick leave. Whichever policy the employer chooses must be in writing and distributed to employees.

The DOL also clarifies that for determining the statutory requirements based upon employee count, all employees of a company nationwide are to be counted, though benefits only need to be provided to those employees working in New York State.

Commenters suggested that the DOL explain how NY PSL and its requirements interact with other state or federal statutes. In response the DOL “declines to opine on any potential conflict with existing state or federal statutes, apart from asserting that none are believed to exist.”

One issue that remained unclear originally was the effect of the law on existing collective bargaining agreements (CBAs). The DOL declined to address this issue noting that several comments were submitted requesting interpretation on this issue but that this issue was “outside of the scope of this rule making which does not address CBAs.”

With respect to required documentation for the leave, the DOL notes that it will produce an “employee attestation template.” 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, as may be prohibited by Section 215 of the Labor Law. Moreover, the DOL does not believe a documentation requirement for leave less than three days is necessary for investigation into potential employee abuse of sick leave and otherwise believes documentation requirements are sufficient. The DOL also declined to create a separate notice requirement for foreseeable leave claiming it would be difficult to classify “foreseeability”, though the federal Family Medical Leave Act has included a foreseeability standard for decades.

NY HERO Act Workplace Safety Committees Proposed Regulations

On May 5, 2021, the New York HERO Act was enacted, creating among other pieces of legislation, New York Labor Law § 27-d, which requires private sector employers with 10 or more employees to permit the creation of joint employer-employee workplace health and safety committees.

On December 22, 2021, proposed regulations interpreting the new workplace committees were also published in the New York State Register.

The proposed regulations include sections on definitions, committee establishment, committee rules, and employer obligations. Some highlights of the proposed regulations include the following:

1. The number of employees an employer counts for coverage purposes only includes the employees that are employed within New York State.
2. Part-time, newly hired, temporary, and seasonal employees, like full-time employees, are considered to be employees.
3. Workplace safety committees may be established for each worksite following a written request for recognition by at least two non-supervisory employees who work at the worksite.
4. Upon the receipt of a request for recognition, employers shall respond to such request with reasonable promptness, but there is no specification of an exact time period.
5. Requests for committee recognition may be denied where a committee already exists that complies with the law.
6. Workplace safety committees shall be comprised of not less than two non-supervisory employees and not less than one employer representative.
7. The ratio of non-supervisory employees to employer representatives shall not be less than two non-supervisory employees to one employer representative at any given time.
8. Where collective bargaining agreements are in place, the bargaining agent may select the employee members for the committee.
9. In worksites where a collective bargaining agreement is not in effect, employees will select the members of the committee and employer involvement in the process is prohibited. No specific process or form is required; employees will be free to select members in any way they see fit.
10. The amount of meetings during workhours are permitted, but the proposed rules seemingly would allow the committee to also meet at additional times outside of work without the hours being deemed “hours worked” for wage and hour purposes.
11. Employers also must respond to concerns from the committee, respond to committee requests relating to duties of workplace safety, provide notice when a government agency enforcing safety and health standards is coming for a site visit, and appoint an employer representative to act as a co-chair of the committee, among other requirements.

A public hearing on the proposed regulations will be held on February 9, 2022, at a location to be announced on the DOL’s website. Interested parties should consider submitting comments to the DOL in relation to these proposed regulations. In addition to the proposed regulations, employers should be mindful of the DOL FAQ on the HERO Act which was released on September 30, 2021.

If you have questions about how this impacts your business, please contact:

• Christopher P. Maugans
• Kristin Klein Wheaton
• Caroline J. Berdzik
• Or another member of our Employment and Labor team