On December 22, 2021, the New York State Department of Labor (NYSDOL) published highly anticipated final regulations in the New York State Register regarding New York State Paid Sick Leave (PSL), which went into effect on September 30, 2020. These final regulations address comments received from the public following the issuance of proposed regulations published on December 9, 2020. The final regulations provide some additional clarification regarding the PSL and its requirements.

Counting Employees

The final regulations clarify that in determining employer size, employers should count employees employed nationwide.

Carryover and Payout of Unused Leave

The final regulations suggest that there is no limit on the number of hours an employee can carry over to the following calendar year, even when an employer frontloads the leave.

The NYSDOL provides that employers may (1) give employees the option to be paid for unused sick leave prior to the end of the calendar year, or in the alternative, carry over unused sick leave; or (2) permit employees only to carry over unused sick leave.

Documentation and Attestation 

As employees are required to provide attestations to employers following an absence of three or more consecutive days, the NYSDOL agreed to publish a template for employee attestations.

Notice

While New York City’s Earned Safe and Sick Time Act provides for a specific notice requirement for foreseeable leaves, the NYSDOL declined to provide such a notice requirement.

Next Steps for New York State Employers

New York State employers may want to consider the following measures:

• reviewing current sick leave policies and practices and updating them as necessary;

• for employers that use an accrual model for sick leave, taking steps to track accrued leave;

• monitoring and reviewing materials published by the NYSDOL; and

• training supervisory and managerial employees, as well as human resources professionals, on the requirements of the law.