New York Department of Labor Adopts Rules Regarding Sick Leave

Over a year after the effective date of the New York State Sick Leave Law (SLL), the New York Department of Labor (NYDOL) has formally adopted rules, first proposed in December 2020, governing the law.

The rules include definitions of terms and also address some of the questions not answered in the text of the SLL or prior NYDOL guidance. For example, the NYDOL has stated that employees outside of New York must be included in determining an employer's size, which will affect the amount of leave an employee is eligible to accrue.

Notably, while employers may require employees to provide documentation—such as a note from a healthcare provider—to support their eligibility for leave, they cannot require documentation that would cause employees to incur any costs.

Q: How Is Employer Size Determined?

A: Count All Employees, Including Those Outside New York.

As described in our client advisories in April, May, and September 2020, the amount of sick leave an employee is eligible to accrue is determined by the size and, if the employer has fewer than five employees, the net income of the employer:

• Employers with both fewer than five employees in a calendar year and annual net income of less than $1 million – Employees are entitled to up to 40 hours of unpaid sick leave in each calendar year.
• Employers with fewer than five employees in a calendar year but annual net income of greater than $1 million – Employees are entitled to up to 40 hours of paid sick leave in each calendar year.
• Employers with between five and 99 employees in a calendar year – Employees are entitled to up to 40 hours of paid sick leave in each calendar year.
• Employers with 100 or more employees in a calendar year – Employees are entitled to up to 56 hours of paid sick leave in each calendar year.

Employers may provide more paid sick leave time than required by the SLL, in which case these NYDOL rules would apply only to the paid leave time required by the SLL.

The number of employees an employer has during a calendar year is "determined by counting the highest total number of employees employed at any point during the calendar year to date." This includes both part-time and full-time employees as well as jointly employed employees. A jointly employed employee may only receive leave from one of the joint employers.

Neither the SLL nor the newly adopted rules expressly address whether employers with employees working outside New York must include them in the count to determine the size of an employer. Nevertheless, in the comment section of the newly adopted rules, the NYDOL "interprets the statute to include all of the employer's employees nationwide" in determining size.

However, as the NYDOL further explains, employers are only required to provide paid sick leave to the employees located in New York. Thus, an employer with more than 100 employees nationwide, but fewer than 100 employees in New York, will be classified by size as having 100 or more employees and will be required to allow its New York employees to accrue up to 56 hours of paid sick leave each calendar year.

Notably, if the number of employees increases during a calendar year, the size increase applies prospectively for purposes of determining eligibility for sick leave for all New York employees. For example, if an employer who previously had 99 employees (eligible to accrue up to 40 hours of sick leave) hires additional employees so that it has 100 or more employees, it must allow all New York employees to begin accruing up to 56 hours of sick leave as of the date the new employees were hired.

On the other hand, if an employer with 100 or more employees reduces its staff to below 100, its employees' leave entitlement would not be reduced to 40 hours until the next calendar year. The employer would have to continue allowing its employees to accrue up to 56 hours of paid sick leave during that calendar year.

Q: What Working Time Counts Towards an Accrual?

A: All Working Time.

Under the SLL, employees accrue one hour of paid sick time for every 30 hours worked. The rules state that "all time worked" must be counted for purposes of determining accruals, including time worked in increments of less than 30 hours.

An employer "may round accrued leave to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour," and the employer may round up or down, "provided that it will not result, over a period of time, in a failure to provide the proper accrual of leave to employees for all the time they have actually worked."

Q: Do Employers That "Front-Load" Leave Have to Allow Carryover of Unused Leave?

A: Yes.

The rules state that employers that front-load the full amount of paid leave (e.g., 40 or 56 hours) for employees at the beginning of a calendar year must allow employees to carry over unused leave to the next calendar year, even though front-loading results in the employees being credited with the maximum amount of required leave at the beginning of each calendar year.

An employer does not, however, have to allow an employee to use more than the maximum number of hours of sick leave for which the employee is eligible. For example, an employee who is given 56 hours of leave and only uses 52 hours will carry over four hours of unused leave to the next calendar year, ending up with a total of 60 hours at the beginning of the next year, but can only use 56 of those hours.

In light of an employer's responsibility to track and notify its employees about their accrual, use of, and available sick time, this carryover rule may create an administrative burden as employers will be required to keep track of sick time that their employees are not permitted to use. In lieu of carryover, employers may pay employees for unused sick leave at the end of a calendar year, but are not required to do so.

Q: May an Employer Require Documentation to Support Leave Requests?

A: Yes, If Leave Is for Three or More Days, but Cannot Require Medical or Confidential Details and Cannot Require Employees to Incur Costs.

An employer "may request documentation from an employee confirming their eligibility to take sick leave," but the SLL's rules place strict limits on both when documentation can be requested and the type of documentation an employer may request.

Documentation can be requested only when an employee "uses leave for three or more consecutive and previously scheduled workdays or shifts." An employee who is out for only two days, or an employee who uses one day of leave each week for several weeks, cannot be required to provide documentation.

• Note: Employers who are also covered by the New York City Earned Sick and Safe Leave Act (ESSTA) should keep in mind that, under the NYC law, they cannot require documentation until an employee has been out for more than three consecutive days.

The type of documentation that can be requested is also limited. An employer cannot require an employee, or the employee's healthcare provider, to "disclose the reason for leave," meaning that the employer cannot ask for "confidential information, including the nature of an illness, its prognosis, treatment, or other related information." An employer may ask for:

• (1) An attestation from a licensed medical provider supporting the existence of a need for sick leave, the amount of leave needed, and a date that the employee may return to work; or
• (2) An attestation from an employee of their eligibility to leave.

Significantly, the rules further state that "[n]o employer shall require an employee to pay any costs or fees associated with obtaining medical or other verification of eligibility for use of sick leave." Therefore, an employer who suspects that an employee is abusing sick leave and asks for documentation from a healthcare provider may have to reimburse the employee if the healthcare provider charges a fee for the documentation.

Similarly, when an employee uses paid sick leave under the SLL for "safe leave," such as for reasons related to domestic violence, sexual offense, family offense, human trafficking, or stalking, an employer cannot ask for details about the underlying reason for the leave, but can ask an employee to provide an attestation that the leave is being used for a covered reason.

Next Steps

Employers should review their sick leave policies to make sure they comply with the newly adopted rules. In particular, employers should review which employees they are counting (including part-time and out of state employees) when determining how much leave their employees are eligible to accrue (e.g., 40 or 56 hours).

Furthermore, employers should work with their payroll providers or in-house payroll department to ensure that they comply with their recordkeeping and notification obligations under the SLL.

Employers should also make sure that supervisors consult the employer's human resources professionals before asking an employee to submit documentation from a healthcare provider, and that human resources professionals know when, and what type of, documentation they may request to establish an employee's entitlement to paid sick leave.

Please contact the attorneys in DWT's New York's Employment Services Group for assistance with reviewing or revising your current paid sick leave policy to ensure it complies with these new rules.