New NYS Paid Sick Leave Regulations Answer Questions about Employee Counts, Sufficient Policies and Penalties for Violations

The New York State Department of Labor (NYSDOL) has now issued its final regulations and guidance for New York State’s mandatory Paid Sick and Safe Leave Law. As you may recall, the law went into effect on September 30, 2020, and employees could begin using the leave as of January 1, 2021. While these final regulations still leave many unanswered questions, a few interesting twists have emerged.

Counting Employees

The text of the law requires employers of 100 or more to grant their workers up to 56 hours of paid sick leave per calendar year. Employers with 5 to 99 employees, on the other hand, need only grant 40 hours of such leave. However, the law does not explain whether an New York employer, with employees in other states, must count all its employees or only those in New York to determine the benefit they must provide.

In its new guidance, the NYSDOL now states that it interprets the statute to include all employees of an employer on a nationwide basis. In other words, an employer with 100 employees nationwide, but with only 10 employees in New York State, would have to grant those employees working in New York up to 56 hours of paid leave. The NYSDOL added that the employer is under no obligation to offer the benefit to its workers outside the State.

Paying for Unused Sick Leave In Lieu of Carryover

Since the law went into effect, the NYSDOL has stated that an employer’s existing sick leave policy is sufficient to comply with the Paid Sick and Safe Leave Law provided that the existing policy either meets or exceeds the requirements of the law in terms of accrual, use and carryover. This means an employer would not need to adopt a NYS-specific Paid Sick and Safe Leave policy, if their existing policy allowed: 1) employees to accrue leave at least 1 hour for every 30 hours worked; 2) the leave to be used for all the reasons listed in the law; and 3) any unused leave to carry over to the next calendar year.

Now, the NYSDOL is stating that an employer’s paid sick leave policy will be sufficient with respect to the carryover requirement, if the employer pays the employee for any unused sick leave at the end of a year. Please note that there is no obligation to ever payout unused leave under this law. Moreover, employers are permitted to limit the amount of leave used in a calendar year to the maximum they can accrue under the law (e.g., 56 hours, or 40 hours), regardless of how much leave time is carried over from year to year. Thus, choosing to make such a year-end payment is not required. But the new guidance at least makes it clear now that if an employer’s policy calls for year-end payouts, it would still be considered equal to or greater than the requirements of the law.

Penalties for Violations

NYSDOL has also now indicated that a failure to pay an employee for leave under this law is the equivalent of a failure to pay wages. Under applicable labor law (i.e., New York Labor Law § 198-c), failure to pay wages is a criminal violation (i.e., a misdemeanor). Accordingly, employers should carefully review their policies and practices to ensure that they are complying with this law.

If you have any questions or need any assistance with respect to your paid sick leave policies, please contact us.