February 11, 2022 Final Regulations Implementing New York’s Paid Sick Leave Law
KEEPING YOU INFORMED…
In a previous Memorandum, we reminded you of your obligations pursuant to the NYS Paid Sick Leave Law (“the PSL law”), which was enacted on April 3, 2020 and the proposed regulations published by the NYS Department of Labor (“DOL”). As a reminder, the PSL law requires private employers (only) with five or more employees to provide paid sick and safe leave benefits every calendar year.
The DOL recently published a Notice of Adoption indicating that it had adopted, in full and without changes, the proposed regulations. In addition, as part of the Notice, the DOL published public comments that were submitted on the proposed regulations and its responses. The DOL’s responses provide insight on its interpretation of the statutory and regulatory requirements. Below is a list of what we believe are the larger takeaways from the DOL’s responses.
1. Employees must be permitted to carry over any sick leave remaining at the end of the calendar year. An employer may also offer employees the option of receiving payment for unused sick leave. Putting these rules together, an employer may offer one of two options: (a) permit employees to voluntarily choose between receiving payment for accrued sick leave or carry over the unused time; or (b) permit employees to carry over the time without the option to receive any payment.
2. The DOL will publish a template for employee attestation of proper sick leave use.
3. Employees must be permitted to use paid sick leave during the period of time an employer is attempting to determine whether the employee is using the leave for a purpose permitted by the PSL law. If an employer discovers that the employee’s request for paid sick leave was fraudulent or improper, it has the right to take disciplinary action against that employee.
4. An employer cannot deny sick leave on the basis that the employee did not provide medical documentation “when the requested medical documentation or other verification is unattainable due to associated costs.”
5. Employers are not required to issue a notice to employees of their rights pursuant to the PSL law.
6. While NYPSL benefits only apply to employees working in NYS, for purposes of determining how much paid sick leave must be provided (which is based on the employer’s total number of employees), the employer must count all of its employees nationwide.
7. Failure to provide paid sick leave is deemed to be a failure to pay wages (and will, therefore, be subject to the same NYS penalties for failure to pay wages).
If you have any questions regarding the PSL law, its regulations or your related duties and responsibilities, please contact Alyson Mathews (firstname.lastname@example.org) or one of our other attorneys at 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
 Employers with fewer than five employees and a net income of $1 million or less in the previous tax year must provide up to 40 hours of unpaid sick leave every calendar year.
 The Notice of Adoption is part of the New York State Register, Volume XLIII, Issue 51.
 Please see the link in footnote 2 at pages 16-18 (pages 22-24 of the PDF document) for all 27 comments and responses.
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