The New York State Department of Labor has released proposed final regulations interpreting New York Paid Sick Leave (NY PSL)
They defined terms and clarify questions around documentation requests, accruals, and other issues
The proposed regulations still leave many questions unanswered, giving employers a small window in which to contact the state for further clarification
On December 2, 2020, the New York State Department of Labor (DOL) released proposed regulations further interpreting the New York Paid Sick Leave Law (NY PSL). The proposed regulations answer some questions employers have been waiting for but fail to answer many more.
We previously reported on the enactment of the NY PSL and the release of New York State’s guidance and Frequently Asked Questions (FAQs) document. Passed as part of New York State’s 2020–21 budget, the legislation mandates employer-provided sick leave benefits beginning in January 2021.
Several terms used throughout NY PSL are further defined in the proposed regulations. Specifically, the proposed regulations define the meaning of “confidential information,” “domestic partner,” “family offense,” “human trafficking,” “mental illness,” “net income,” “preventative medical care,” “sexual offense,” and “stalking.”
The proposed regulations clarify that employers may not require medical or other verification in connection with NY PSL that lasts less than three consecutive previously scheduled workdays or shifts. Employers may not require an employee to pay any costs or fees associated with obtaining medical or other verification of eligibility for use of NY PSL. The regulations further provide that when documentation may be requested, such requests shall be limited to the following:
- An attestation from a licensed medical provider supporting the existence of a need for NY PSL, the amount of leave needed, and a date that the employee may return to work, or;
- An attestation from an employee of their eligibility to leave.
Determining Employer Size
The amount of leave covered employers must provide under NY PSL depends on the employer’s size. The proposed regulations attempt to clarify how and when to determine employer size for NY PSL leave entitlement determinations and how those may be affected when a business’s employee count fluctuates throughout the year.
The proposed regulations state that the number of employees employed by an employer during a calendar year shall be determined by counting the highest total number of employees concurrently employed at any point during the calendar year to date.
Notably, part-time employees and even those on paid or unpaid leave, including NY PSL, leaves of absence, disciplinary suspension, or any other type of temporary absence, are counted as long as the employer has a reasonable expectation that the employee will later return to active employment. However, individuals that are laid off or terminated do not count.
The proposed regulations state that for purposes of calculating accruals for time worked in increments of less than 30 hours, employers may round accrued leave to the nearest five minutes, or to the nearest one-tenth or quarter of an hour, provided that it will 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.
Collective Bargaining Agreements
A few weeks ago, the DOL did add additional language to the previously released guidance to clarify that collective bargaining agreements “entered into after September 30, 2020 are not required to provide the sick leave described above so long as the agreement provides for comparable benefits/paid days off for employees and specifically acknowledges the provisions of Labor Law 196-b.” The DOL further clarified that multiple leave benefits (regardless of label) may be used to satisfy the “comparable benefit requirement.” To satisfy the requirements of this law, any agreement entered into after September 30, 2020 must specifically reference Labor Law Section 196-b.
Actions for Employers
We urge employers to contact the DOL with their comments and concerns relating to the proposed regulations so that the final version of the regulations clearly answer NY PSL’s remaining ambiguities.
If you or your team have any questions about this law or policy revisions that may be necessary, please contact:
- Christopher P. Maugans
- Caroline J. Berdzik
- Peter J. Woo
- Kristin Klein Wheaton
- Or another member of our Employment and Labor team