With New York’s new Paid Sick Leave Law set to take hold on January 1, 2020, employers finalizing their leave policies should review additional guidance published by the N.Y. Department of Labor (DOL). Our earlier Legal Alert covering the basics of the Paid Sick Leave Law is available here.

Proposed Regulations and Fact Sheets

On December 9th, the DOL published proposed regulations that further implement the Paid Sick Leave Law. Although the regulations answer some questions, employers should note that the regulations are still in “proposed” form and not yet final. Employers and other members of the public have until February 7, 2021, to submit comments and feedback to the DOL regarding the proposed regulations.

The DOL has also issued several topic-specific and industry-specific “Fact Sheets” on the new law, including Fact Sheets specific to restaurants, farm workers, seasonal workers, and unionized employers.

Both the Fact Sheets and the Proposed Regulations are currently posted at the bottom of the DOL’s guidance page on Paid Sick Leave.

Details from Proposed Regulations

The proposed regulations are divided into four main sections:

  • (1) a section providing “Definitions” on key terms from the new law;
  • (2) a “Documentation” section, explaining what type of documentation an employer may request in connection with an employee’s leave;
  • (3) a section on how to count employees for purposes of how much leave employers must provide to their workforce;
  • (4) a brief section on accurately tracking leave accrual.

The key provisions from each section are summarized below.

Definitions of “Confidential Information” and “Preventative Medical Care”
Employers may not request “confidential information” from employees in connection with sick leave. The regulations define “confidential information” to mean any “individually identifiable health” information, such as “diagnosis and treatment records.”

Employees may use leave under the new law for “preventative medical care.” The regulations confirm that “routine health care” such as screenings and checkups will count as “preventative medical care.”

Documentation from Employees Supporting Reason for Leave
The proposed regulations state that employers may not require “medical or other verification” for an employee leave that is shorter than three (3) consecutive workdays or shifts.

In conjunction with the definition of “confidential information,” the regulation limits employers from requesting any documentation on “the nature of an illness, its prognosis, treatment, or other related information.”

As to what documentation an employer can request: if the employee’s reason for leave lasts for three or more consecutive workdays/shifts, employers may request an “attestation from a licensed medical provider” that is limited to “supporting the existence of a need” for leave and the date the employee may return to work. Alternatively, employers may request an attestation from the employee “of their eligibility to leave.”

Counting Employees
Under the Paid Sick Leave Law, employers with 100 or more employees in a year must provide 56 hours of leave per year; employers with 99 or less employees in a year must provide 40 hours. Employers with 4 or fewer employees must provide 40 hours of leave, but whether the leave is paid depends on whether the employer attained a net income of $1 million in the previous tax year.

The regulation clarifies how to count employees per year. In general, employer size will be calculated by looking at the “highest total number of employees concurrently employed at any point” in a calendar year. Employees on any type of “temporary absence” are still factored in to the employer’s total headcount, however, employees who are “laid off or terminated, whether temporarily or permanently,” are not counted.

Tracking Accrual
The Paid Sick Leave Law sets a minimum accrual standard of 1 hour of leave earned for every 30 hours worked. The regulation confirms that “all time worked” must be factored into accrual when an employee’s time worked “is less than a 30-hour increment.” In such cases, employers can round accrued leave to either: the nearest 5 minutes; the nearest 1/10th; or the nearest quarter-hour.

Next Steps

Employers should review the new guidance against their sick leave policies to ensure compliance with the new law. While the regulations are not yet final, they provide strong insight into the DOL’s likely administration of the law.

Employers with questions regarding the regulations, or, with questions that have not yet been answered by the DOL’s guidance and regulations, should consider submitting comments to the DOL asking for further clarification.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.