The New York Department of Labor (DOL) has issued a final rule to clarify sick leave requirements. The final rule took effect Dec. 22, 2021.
Background:
New York state had previously enacted legislation that provides for up to 40 hours of sick leave. If you have five or more employees or a net income of more than $1 million, you must provide paid sick leave. If you employ fewer than five employees and have a net income of $1 million or less, you must provide unpaid sick leave.
The Details:
The final rule clarifies:
· Definitions of confidential information, domestic partner, family offense, human trafficking, mental illness, net income, preventative medical care, sexual offense and stalking. See the text of the law for further details; and
· Accrual, documentation protocol and employee counts for the purposes of sick leave.
Leave Accrual:
Under the final rule, accrued leave must account for all time that your employee works, even if the time worked is less than a 30-hour increment. You may round an employee’s accrued leave to the nearest five minutes, or the nearest one-tenth or quarter of an hour, if it will not result in a failure to provide the proper amount of leave for all the time that your employees have worked.
Employer Requests for Documentation:
If sick leave lasts for three or more consecutive or previously scheduled workdays or shifts, you may request an attestation from:
- An employee of their eligibility for leave; or
- A licensed medical provider that supports the need for leave, the amount of leave needed and the date that the employee may return to work.
Prohibited Actions:
Under the final rule, employers cannot ask for:
· The reason for an employee’s leave;
· An employee to pay the costs or fees associated with obtaining medical or other verification of eligibility for use of their sick leave;
· An employee to provide confidential information, such as the nature of an illness, the prognosis, treatment, or other related information;
· Details or information regarding the leave taken; or
· For an employee’s attestation to explain the nature of the illness or details that relate to their safe leave (domestic violence, sexual offense, family offense, human trafficking, or stalking).
Employee Count:
To determine the number of employees employed during a calendar year, use the highest total number of employees that are employed at the same time, at any point during the calendar year to date. This includes part-time employees and employees on paid or unpaid leave (sick leave, leaves of absence, disciplinary suspension, or any other type of temporary absence), who you reasonably expect to return to work.
Note: An employee that is jointly employed must be counted by each employer, even if the employee is not on an employer’s payroll.
Increased Employee Count:
If an employee count increases during the calendar year above a paid sick leave threshold:
- You must ensure that the accrual of additional required leave up to what an employee is entitled to is prospective from the date of the increase. However, that does not entitle employees to reimbursement for previously used unpaid leave or to use more than the maximum amount of leave that you have set;
- You may credit prior accruals of sick leave (used and unused paid leave and used unpaid leave) in a calendar year towards increased paid leave obligations, but you cannot credit prior accruals of unused and unpaid leave towards paid leave obligations; and
- You must retain all existing accruals of paid and unpaid leave notwithstanding an increase in the number of employees during a calendar year.
If you reduce the number of employees below a threshold, you cannot reduce the sick leave an employee is entitled to until the following calendar year.
Next Steps:
Train HR personnel and managers on the applicable updated sick leave requirements and visit the DOL website for updates. Please contact your dedicated service professional with any questions.