NYS Proposes Sick Leave Regulations

As addressed in our prior client alert, New York State enacted state-wide mandatory sick/safe leave earlier this year. Recently, the NYS Department of Labor issued proposed regulations, providing additional guidance on the implementation of the law. The proposed regulations are narrow and primarily address three issues: (1) requiring employee documentation of the use of sick/safe leave, (2) counting employees to determine how much sick/safe leave an employer must offer, and (3) rounding time worked to determine employee accruals. Notably, the proposed regulations do not address many of the open questions surrounding the law, such as the impact of the law on existing collective bargaining agreements and the extent to which frontloading sick/safe leave removes the need to carryover unused leave.

Documentation of Sick/Safe Leave

Neither the sick/safe leave law, nor subsequent guidance issued by NYS, addressed the extent to which employers can require employees to provide documentation of their need for sick/safe leave. However, the proposed regulations state that employers can request documentation from an employee confirming their eligibility to take sick leave only if the employee uses sick leave for three or more consecutive and previously scheduled workdays. This is less stringent than the NYC Earned Safe and Sick Time Act, which permits employers to request documentation only for an absence of more than three consecutive days. The proposed regulations also state that employers may not require employees to pay the cost associated with obtaining such documentation.

The documentation an employer can request under the proposed regulations is limited. An employer cannot require an employee (or the person providing documentation, such as a medical professional) to disclose the reasons for leave unless such information is otherwise required by law. Rather, documentation must be limited to either (1) an attestation from a licensed medical provider supporting the existence of the need for sick leave, the amount of leave needed, and a date that the employee may return to work, or (2) an attestation from the employee of their eligibility for sick leave. The regulations do clarify that an employer cannot require employees to provide confidential information, including the nature of an illness, its prognosis, or treatment, or any details or information regarding safe leave taken due to domestic violence, stalking, a family offense, sexual offense, or human trafficking. An employer may also not require that any attestation explain the nature of the illness or of the domestic violence, stalking, family offense, sexual offense, or human trafficking that necessitated the use of safe leave.

Counting Employees

The amount of sick/safe leave an employer must provide depends on how many employees it has in a calendar year: employers with 100 or more employees must provide up to 56 hours of paid sick/safe leave per year; employers with 5 to 99 employees (and employers with 4 or fewer employees and a net income of greater than $1 million) must provide up to 40 hours of paid sick/safe leave per year; and all other employers must provide up to 40 hours of unpaid sick/safe leave per year.

The proposed regulations specify how to determine how many employees an employer has, for the purpose of determining its sick/safe leave obligations: the number of employees employed by an employer during a calendar year is the highest total number of employees concurrently employed at any point during the calendar year to date. The proposed regulations specify that the following employees must be included in the count: (1) employees on paid or unpaid leave, as long as the employer has a reasonable expectation that the employee will return to active employment; (2) part-time employees, even if they do not work every day of the week; and (3) employees jointly employed by more than one employer, whether or not they are on the employer’s payroll records.

The proposed regulations also address the result if an employer hires enough new employees to push the employer into a higher threshold (e.g., if an employer with 99 employees hires one additional employee): employees must be permitted to accrue leave up to their new higher entitlement prospectively from the date the employer has the higher number of employees. However, any paid leave used or accrued by an employee (and any used unpaid leave) in a calendar year may be credited towards the employer’s new increased leave obligations. Employees must also retain all existing accruals of paid and unpaid leave. On the other hand, if an employer reduces the number of its employees, such that it would be required to provide less sick/safe leave (e.g., if an employer with 100 employees lays off 1 employee), the employer may not reduce employee sick/safe leave entitlements until the next calendar year.

Note that the proposed regulations do not specify whether employers are required to count employees outside of New York State, but given the expansive definition of “employee” in the New York Labor Law, employers may be required to count employees outside of New York State for the purpose of determining their sick/safe leave obligations.

Rounding Accruals

Under the sick/safe time law, employees must accrue at least 1 hour of sick/safe time for every 30 hours worked. The proposed regulations state that employees’ accruals must account for all time worked, even if the time worked is less than the 30-hour increment. Furthermore, for the purpose of calculating accruals when an employee has worked in increments of less than 30 hours, the employer 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 leave to employees for all time worked.

We will continue to monitor the status of the proposed regulations. While these proposed regulations have not yet been implemented, they still provide some guidance on how the NYS Department of Labor may interpret or enforce the sick/safe leave law. If you have any questions regarding the proposed regulations, compliance with the NYS sick/safe leave law, or require assistance amending your policies, please contact any attorney at the Firm.

DISCLAIMER: This alert is provided to clients and friends of the firm for informational purposes only and the distribution of this alert is not intended to, and does not, establish an attorney-client relationship. This alert also does not provide or offer legal advice or opinions on any specific factual situations or matters. This communication may be considered Attorney Advertising. Prior results do not guarantee a similar outcome.