New York State has issued “Proposed Regulations” to enforce the new Paid Sick Leave Law, which will be subject to comment before they are finalized. https://www.ny.gov/new-york-paid-sick-leave/new-york-paid-sick-leave. The law, which goes into effect on January 1, 2021, requires all private New York State employers to provide all employees with some form of sick leave, depending on their size. See our previous alert.
The Proposed Regulations include the following guidance:
For purposes of determining employer size, employers must consider the highest total number of employees concurrently employed at any point during the calendar year, including part-time employees. Reductions in the number of employees working for an employer shall not reduce employee leave entitlements until the following calendar year. Employees jointly employed by more than one employer must be counted by each employer, whether or not they are on the employer’s payroll records, for the purpose of determining each employer’s leave obligation.
The Proposed Regulations also strictly limit employer inquiries related to use of the new leave. Of note, employers may only request supporting documentation when an employee misses at least three consecutive scheduled workdays for sick leave.
In this regard, an employer is permitted to seek an attestation from the employee or a medical provider regarding the general eligibility for the leave, but only in very generic terms. The proposed regulations specifically state that an employer shall not require the employee to disclose confidential medical information or the nature of the illness, or any details related to domestic violence, sexual offenses, family offenses, human trafficking, or stalking that necessitates the use of safe leave. Employers also cannot require employees to pay any costs associated with obtaining verification of eligibility for use of sick leave.
Unionized employers may negotiate sick leave benefits that are comparable to or different from those set forth in the new law. Although not addressed in the Proposed Regulations, the NYS Business Council has advised us that the Department of Labor will not require unionized employers with collective bargaining agreements in effect prior to September 30, 2020 to implement the new paid sick leave requirements for members of the bargaining unit until the agreement expires.
As indicated, these are proposed regulations, and employers may submit comments with suggestions for the final regulations before they are published. Our attorneys stand ready to submit comments for employers or help employers draft comments for their submission. Also, we strongly encourage employers to implement or update their sick leave policies before January 1, 2021 to comply with the new law. We are finding that most employers can mitigate the logistical and financial impact of this new requirement by modifying existing paid time off policies.
Please feel free to contact any of our firm’s labor and employment attorneys for assistance.