Both employees and employers alike seem to be unaware of the New York State Sick Leave Law (“NYSSLL”) or that the New York State Department of Labor (“DOL”) adopted final regulations effective December 21, 2021. The DOL regulations clarified some of the many outstanding questions since employees started to accrue sick leave back on September 30, 2020.

Below is a basic refresher of the NYSSLL and a brief summary of the clarification provided by the DOL in its final regulations posted in the New York State Register. DOL Final Regs NYSSLL

sick leaveNew York State Sick Leave Basics

Eligibility:   All private-sector employees in New York State are covered, regardless of industry, occupation, part-time status, and overtime exempt status. Federal, state, and local government employees are NOT covered, but employees of charter schools, private schools, and not-for-profit corporations are covered. See, eligibility

Accrual:  Employees began accruing leave on September 30, 2020, at a minimum rate of one hour for every thirty hours worked.  The amount of annual leave an employer must provide is determined by the employer’s size and net income in a given year.  See, NYS Sick Leave Regs

Permitted Use:  Employees may use accrued leave for “sick” or “safe” reasons impacting the employee or a member of their family for whom they are providing care. The full list of permitted uses can be found here.

Clarification from the DOL’s Final Regulations:

Carry Over: There is no limit for the number of hours employees can carry over to the following year for sick leave, even if employers choose to “front load” leave time. Employers are not required to integrate this sick leave with their existing paid leave policies, including with respect to paying for unused accrued time when an employer leaves voluntarily or is terminated.

The NYSSLL requires that employers allow employees to carry over unused sick leave to the next calendar year, but employers may also do one of the following options:

(1) employees may voluntarily elect to use and receive payment for paid sick leave prior to the end of a calendar year or carry over unused sick leave; or (2) employees can carry over unused sick leave.

Amount of Sick Leave/ Employee Count: Employers should count all company employees nationwide to determine employer size, even though the NYSSLL leave is only required to be provided to employees in New York State. The highest number of concurrently employed employees must be used to establish employers’ obligations under the NYSSLL.

Rate of Pay for Sick Leave: Sick leave must be paid at the employee’s regular rate of pay, or the applicable minimum wage, whichever is greater.

Timing and Notice Requirements: Employees are permitted to take NYSSLL leave immediately upon hire and employers may not impose a waiting period for use of sick leave. No advance notice is required for employees requesting leave – even for foreseeable events.

Leave Usage: The statute requires that employers provide a summary of the amounts of sick leave accrued and used by employees in the current and/or any previous calendar year.  Employers may adopt “a sick leave policy or time off policy” that meets or exceeds the requirements of the law.

Documentation and Attestations: An employer may not deny an employee leave while attempting to confirm the basis for the leave. If the employer discovers the request for leave is false or fraudulent, then disciplinary action may be taken against the employee.

The NYDOL will produce an employee attestation template. Employers may not penalize or otherwise retaliate against an employee for submitting such a request or attestation.

Documentation is not required for leave that is less than three days for investigation into potential employee abuse of sick leave.   Employers are not permitted to deny sick leave when requested medical documentation or other verification is unattainable due to associated costs.

Part-time/Per Diem/Substitute Employees:  NYSSLL requires leave accruals at the rate of one hour per 30 hours worked including part time, per diem or substitute employees.  Failure to provide employee benefits such as sick leave is equivalent to a failure to pay employee wages.

As a side note, employers may want to have an employment law attorney review the paid time off and sick leave policies to verify compliance with the NYSSLL and other overlapping regulations.

This article is intended for general information and educational purposes only and should not be considered legal advice or counsel. No attorney-client relationship is created by the distribution of this article. The substance of this article is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2021 Law Office of Regina Sarkis, PLLC.