At the recent Labor Roadshow V we had significant discussion about permanent New York Paid Sick Leave that became effective in 2021. Details of the law can be found at the NYSDOL website, but to summarize:
- Employers must provide leave at different minimum hours based on their number of employees (40 hours for employers with 5-99 employees, 56 hours for 100+ employees). NYSDOL clarified that employee count is to include all employees of the employer nationwide, but NY sick leave only applies to those employed in NY.
- Paid sick leave must be available for both sick and safe purposes as defined by the state.
- Employers can limit how many hours of paid sick leave employees can USE in a year, but not how many hours they ACCRUE in a year. “Employers are permitted to limit the leave taken in any year to the maximum amount required to be provided to such employee (e.g., 40 hours for midsized employers and 56 hours for large employers). Any limitations permitted by the law must be put into writing and either posted or given to employees.”
Now, let’s recap the point that was unclear about the carryover of unused paid sick leave from one year to the next. NYS Department of Labor (NYSDOL) employees said that unused paid sick leave could be paid out at the end of the year if the employee and employer agreed to do so. This was a surprise to those of us, including attorneys, who have watched this issue closely because the NYSDOL website and the enabling legislation did not seem to allow for this. Many thanks to NEDPA for diligently following up to clarify this issue. NYSDOL confirmed this via email earlier and officially in writing in the New York State Register on December 22, 2021.
Here is the relevant comment and response from NYSDOL from the Register below:
Comment 3: Commenters suggested the ability pay out accrued sick leave time rather than carrying over hours.
Response 3: While the statute requires that employers carry over unused sick leave to the next calendar year, employers may do one of the following: (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.
So, based on this new guidance from NYSDOL, employers have a choice, they can:
- Give employees the option to “use and receive payment for paid sick leave prior to the end of a calendar year or carry over unused sick leave.” If you choose this option, make sure that you are giving employees the choice each year about whether or not they want to carryover their accumulated sick leave or receive it as a cash payment. Document in writing in your payroll records if you “pay out” unused sick days for the employee.
- Carryover employees’ unused sick leave from one year to the next and let it accumulate. (Note, with this option employers are under no obligation from the state to pay out sick leave at termination of employment (unless a contract or employer policy says otherwise) and they can still limit how much sick leave employees can USE in a given year.)
Whatever approach you take, document with a clear policy, provide it to employees, and keep accurate records about how you handle paid sick leave. “Employers must keep payroll records for six years which must include the amount of sick leave accrued and used by each employee on a weekly basis. Upon the request of an employee, employers are required to provide, within three business days, a summary of the amounts of sick leave accrued and used by the employee in the current calendar year and/or any previous calendar year.”
By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution. The post New York Sick Leave Clarification About Carryover and Payouts appeared in The Ag Workforce Journal.
