New York Paid Sick Leave (NY PSL) went into effective on September 30, 2020, and until now employers only had proposed regulations and frequently asked questions to rely on in interpreting NY PSL law. The New York State Department of Labor (DOL) has adopted the proposed regulations as the final regulations. Meaning no changes were made to the proposed regulations in the finalization process, but the DOL did issue responses to some comments regarding the law from interested parties. Some of the comments supported the rule, while other comments request changes to or clarification of the rule.
Below are some of the key highlights from the comments and responses:
- Employers may have a practice of cashing out unused paid sick leave for employees at the end of the year provided that employees are given the option to either cash out unused paid sick leave or carry it over. Alternatively, an employer can choose to allow employees to carry over the sick leave as the only option, but employers cannot impose a “use it or lose it” policy upon employees for paid sick leave. Whichever policy the employer chooses must be in writing and distributed to employees.
- Employers who frontload paid sick leave must still allow carryover of unused leave up to the annual accrual amount.
- To determine employee count, all employees of a company nationwide are to be counted, though benefits only need to be provided to those employees working in New York State.
- The DOL declined to opine on any potential conflict with existing state or federal statutes, apart from asserting that none are believed to exist. The DOL also declined to address the effect of the law on existing collective bargaining agreements (CBAs), noting that this issue was outside of the scope of the rule making which does not address CBAs.
- In regard to documentation for leave, the DOL noted that it will produce an “employee attestation template.” And provided further response on the treatment of documentation as follows:
- An employer may not deny an employee leave while attempting to confirm the basis for the leave, but should the employer discover the request to be false or fraudulent, disciplinary action may be taken against the employee.
- Employers are cautioned to not penalize or otherwise retaliate against an employee for submitting such a request or attestation, as may be prohibited by Section 215 of the Labor Law.
- The DOL does not believe a documentation requirement for leave less than three (3) days is necessary for investigation into potential employee abuse of sick leave and otherwise believes documentation requirements are sufficient.
Next Steps for Employers
Employers are encouraged to review all of the comments and responses in the State Register for additional insight on the DOL’s interpretation of the law (Refer to pages 16-17).
At the time of writing this post, resources on the state’s Paid Sick Leave website had not yet been updated to reflect this information, but employers should check the site regularly as they are likely to be updated in the upcoming weeks.
