On December 22, 2021, the New York Department of Labor published the final State Paid Sick Leave Law (PSL) regulations in the State’s Register. Of significance, the Register contains the Department’s answers to questions about the PSL and sheds light on how the Department intends to interpret and enforce the PSL regulations.
Significantly, as provided by the DOL, employers may have a practice of cashing out unused paid sick leave for employees at the end of the year, provided that employees are given the option to either cash out unused paid sick leave or carry it over. Alternatively, an employer can choose to allow employees to carry over the sick leave as the only option, but employers cannot impose a “use it or lose it” policy upon employees for paid sick leave. Whichever policy the employer chooses must be in writing and distributed to employees. This is an important clarification because, on the face of the PSL statute, there was no right to cash out unused PSL. Employers who utilize PSL to satisfy wage parity should take note of this important point.
Also of interest, the DOL noted that it would publish an “employee attestation template,” which is likely to be similar to what New York City allows for employees covered by the City’s PSL. Note, an employer may not deny an employee leave while attempting to confirm the basis for the leave. However, if the employer discovers the request for PSL to be false or fraudulent, disciplinary action may be taken against the employee. Employers are cautioned about taking any adverse action against employees on the basis of use of PSL, due to the potential of a retaliation claim. Lastly, of note, the DOL notes that documentation requests for absences of less than 3 days are necessary.
If you have any questions about the PSL, how it interacts with the NYC paid sick leave, the Wage Parity Law, or the Domestic Workers’ Bill of Rights and other similar laws, please contact us. Or, consider outsourcing your full paid leave management and compliance to Forework, our HR partner.