Final Regulations Issued for Paid Sick and Safe Leave Law

On December 22, 2021, the Department of Labor (DOL) released final regulations on the state’s Paid Sick and Safe Leave Law, which has been in effect since September 2020. (See our April 28, 2020 edition of Compliance Corner for more information on the law.) The final regulations do not reflect any changes to the proposed rules issued in December 2020. However, the new guidance attempts to address comments regarding the proposed rules and clarify certain outstanding issues, including carryover requirements, leave accruals, employee counts and supporting documentation and attestations.

With respect to carryovers, the leave law requires that accrued sick leave hours be carried over to the next calendar year. The guidance explains that employers cannot cap the unused carryover amounts, even if the employer frontloads leave time at the beginning of the year. Rather, an employer can either: (1) give employees the option to 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) only allow employees to carry over unused sick leave.

The law mandates that employees accrue one hour of leave for every 30 hours worked. When determining accrual for time worked in increments of less than 30 hours, employers may round accrued leave for administrative ease. However, such rounding cannot result in a failure to provide the proper accrual of leave to employees for the time they have actually worked. Additionally, employees must be able to use accrued sick leave upon accrual; employers cannot impose a waiting period for the use of the sick leave.

According to the DOL, the employee count used to determine the law’s application should include all employees of the employer nationwide. However, the sick leave applies only to employees in the state.

Regarding leave documentation and attestation requirements, the DOL indicated it would publish a template for employee attestations. The guidance emphasized that employers may not deny leave while seeking to confirm the leave basis nor require employees to pay costs to obtain verification of their eligibility to use sick leave. Additionally, documentation requirements for leave less than three days is not considered necessary to prevent potential employee abuse. However, if the employer learns a leave request is false or fraudulent, the employer may take disciplinary action against the employee.

Employers should be aware of the final rules. Related questions or concerns should be directed to employment law counsel.

New York State Register (See Pages 16 – 18) »