Proposed Paid Sick Leave Law Regulations

As we previously reported, New York State’s Paid Sick Leave Law (“PSLL”) went into effect on September 30, 2020. The PSLL requires all New York private employers to provide paid sick leave, which employees may begin using as of January 1, 2021. The amount of sick leave that employers must provide their employees annually depends on the employer’s size and income. On December 9, 2020, the NY Department of Labor published proposed regulations clarifying a number of issues relating to the PSLL as summarized below.

Definitions

• Defines several terms used in the PSLL, including “Confidential Information,” “Domestic Partner,” “Family Offense,” “Human Trafficking,” “Mental Illness,” “Net Income,” “Preventative Medical Care,” “Sexual offense,” and “Stalking.”

Documentation of Eligibility for Leave

• Prohibits employers from requiring employees to verify their reason for “sick leave that lasts less than three consecutive previously scheduled workdays or shifts.” (Note: under the New York City Earned Safe and Sick Time Act (“ESSTA”), employers must wait until after the third consecutive day of safe and sick leave to request documentation);

• Requiring employers to pay any costs associated with obtaining required documentation.” (This is also mandated by ESSTA);

• Prohibiting employers from requiring an employee, or the person providing documentation, to disclose the reason for the leave (except as required by law), and limiting the documentation that may be required to “an attestation from a licensed medical provider supporting the existence of a need for sick leave, the amount of sick leave needed, and a date that the employee may return to work” or to “an attestation from an employee of their eligibility for leave.”

Determining How Employees Are Counted

• Clarifying that the number of employees during a calendar year is determined by counting the highest total of employees concurrently employed at any point during the calendar year;

• Clarifying that for employers whose number of employees increase during the calendar year above any of the relevant thresholds:

  • the accrual of additional required leave is prospective from the date of the increase and does not entitle employees to reimbursement for previously used unpaid leave, or to use more than the maximum amount of leave as required under the PSLL,

  • prior accruals of used and unused paid leave and used unpaid leave (but not used unpaid leave) in a calendar year may be credited by an employer toward any increased paid leave obligation under the PSLL; and

  • employees must retain any accrued paid and unpaid leave.

• Prohibiting employers from reducing leave entitlements based on a reduction in its number of employees until the following calendar year.

• Requiring employers to count employees on paid or unpaid leave, including sick leave, leaves of absence, disciplinary suspension, or any other type of temporary absence as long as the employer has a reasonable expectation that the employee will return to active employment, and permitting employers to exclude persons with no employment relationship, such as “when an employee is laid off or terminated, whether temporarily or permanently.”

• Requiring employers to count part-time employees as employed on each working day of the calendar week.

• Requiring joint-employers to each count jointly employed workers, regardless of whether they are on the joint employer’s payroll records.

Accruals

• Clarifying that accruals must include all time worked regardless of whether the time worked is less than a 30-hour increment. For increments of time worked that are less than 30 hours, employers may “round accrued leave to the nearest 5 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.”

The Department of Labor is accepting commenting regarding the proposed regulations through February 7, 2021.

Extended Deadline to Comply with NYC Earned Safe and Sick Time

As we also previously reported, New York City recently amended ESSTA to align with the PSLL as to employer size and income thresholds for determining an employer’s safe and sick leave obligations. The ESSTA amendments also added a requirement that employers provide the amount of each employee’s accrued and used sick and safe leave and the employee’s remaining leave balance on the employee’s pay stubs, or in a separate writing provided to the employee each pay period.  Although the disclosure requirement went into effect on September 30, 2020, the City’s Department of Consumer Affairs advised employers through its website that they would have until November 30, 2020 to comply without penalty, provided the employer was working in good faith to operationalize their ability to provide the information as required. The City recently updated its website to extend the deadline for compliance without penalty to January 1, 2021.