The New York State Department of Labor (“DOL”) published a proposed rule in the New York State Register on December 9, 2020 to clarify the paid sick leave law requirements set forth in Section 196-b of the New York Labor Law, that will be fully effective January 1, 2021.
The proposed rule can be found here: 120920.pdf (ny.gov).
The proposed rule was written to provide clarity, as well as to avoid adverse impact on employers (including small businesses) and employees. The proposed rule provides definitions for terms contained in Section 196-b, setting forth rules for what documentation employers may require of employees in relation to such leave, providing parameters for employers to ‘count’ their employees for the purposes of determining leave accrual entitlements, and clarifying how time is accrued where work is performed in intervals other than precise 30-hour units. The proposed changes to the sick leave law are summarized below.
The present rule proposes definitions used in other areas of New York Law as follows: the terms “Human Trafficking,” “Sexual Offense,” and “Stalking” are defined by references to the New York Penal Law; the term “Net Income” is defined by reference to the definition of “Entire Net Income” found in Section 208(9) of the New York Tax Law; the term “Mental Illness” is defined by reference to the definition of “Mental Illness” in the New York Mental Hygiene Law; the term “Family Offense” is defined by reference to the offenses listed in Section 812(1) of the New York Family Court Act; the term “Domestic Partner” is based upon Section 2961(6-a) of the New York Public Health Law; and the terms “confidential information,” “preventative medical care,” and “workdays” are defined by the plain meaning of such terms.
Section 196-b would continue to prohibit employers from requiring that employees disclose confidential information or information relating to absence from work due to domestic violence, a sexual offense, stalking, or human trafficking, as a condition of providing leave under that Section. The Section is silent on what documentation, if any, employers can require for using such leave.
The proposed rule would prohibit unduly burdensome documentation requests (for leave lasting less than three consecutive workdays), documentation requests that require the payment of fees for medical exams in violation of Section 201-b, and requests for confidential information as explicitly prohibited by Section 196-b(5)(a).
Employers would be permitted to request attestations confirming eligibility for leave uses of three (3) or more consecutive scheduled workdays or to investigate a pattern of suspected abuse of sick leave. Requests for documentation are limited to employers’ legitimate purposes while seeking to prevent documentation requests being used as a mechanism to discourage the use of leave.
Section 196-b sets forth leave entitlements for employees based upon the number of employees employed in each calendar year but does not specify what an employer’s count is based on. The proposed rule provides that employee counts will be based upon the highest number of employees that an employer employs at any one point in a calendar year. Under this construct, businesses are not penalized for high employee turnover or encouraged to separate employees during certain times of the year to avoid compliance with Section 196-b.
Consistent with existing interpretations of provisions in Article 6, employees who are on a leave of absence while maintaining an employment relationship, part-time employees, and employees jointly employed with one or more other employer are included in such counts.
Section 196-b provides that employees accrue sick leave at a rate of one hour for every thirty hours worked. The proposed rule clarifies that leave is accrued for all time worked, regardless of the increment, because work is rarely performed in exact thirty-hour increments. The proposed rule permits employers to round up and/or down time worked, so long as such rounding does not result in a failure to provide employees with the proper amount of accrued leave earned for all time actually worked. By requiring fairness in rounding practices, the proposed rule requires that leave be rounded both up and down in a fair way that does not result in the diminishment of an employee’s leave accruals.
The proposed rule also reiterated that Section 195(4) requires that employers keep a record of the amount of sick leave provided to each employee. Employers should update their New York Paid Sick Leave Policy in their employee handbook once the proposed rule becomes final. Public comment will be received for sixty (60) days after publication of the December 9, 2020 notice. We will continue to monitor developments on the proposed rule and provide an update once this information is made known or when the rule is final
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