New York has proposed regulations to implement the new State paid sick leave law requirements. However, as with the guidance that has been published thus far by New York State, the proposed regulations are lackluster and leave many questions unanswered. Poricanin will be submitting comments to the proposed rules to ensure that the State considers some home care-specific challenges associated with the implementation and administration of paid sick leave law requirements. In the meantime, this is a summary of the proposed regulations:
Determining Coverage Obligations
The amount of paid sick leave an employer must provide depends on the number of employees it employs in the calendar year. The proposed regulations offer some important clarifications as to when and how employee headcount should be determined.
1.The number of employees employed by an employer during a calendar year is to be determined by counting the highest total number of employees concurrently employed at any point during the calendar year to date.
2.If an employer’s headcount increases during a calendar year such that they move into a higher “bracket” of coverage, the employer must comply with the requirements of the higher bracket, starting from the date of the headcount increase. For example, if an employer with 4 employees hires a 5th employee, it must allow employees to accrue up to 40 hours of paid sick leave (rather than the 40 hours of unpaid sick leave for certain smaller employers) starting as of the date it hires the 5th employee. Likewise, if an employer with 99 employees hires a 100th employee it must allow employees to accrue up to 56 hours of paid sick leave (rather than the 40 hours of paid sick leave for mid-size employers) starting as of the date it hires the 100th employee. The accrual of such additional required is prospective from the date of the headcount increase and, therefore, employees are not entitled to reimbursement for previously used unpaid leave or to use more than the maximum amount of leave set by the employer in accordance with the NYPSL Law. Notably, an employer may count prior accruals of used and unused paid leave and used unpaid leave in the calendar year toward satisfying increased obligations resulting from a headcount increase. However, employers may not count any prior accrual of unused unpaid leave toward any paid leave obligations.
3.Reductions in employee headcount will not result in a reduced employee leave entitlement until the start of the next calendar year.
4.Employees on paid or unpaid leave, including sick leave, leaves of absence, disciplinary suspension, or any other type of temporary absence, must be included in determining employer headcount so long as the employer has a reasonable expectation that the employee will later return to active employment. An individual need not be counted if there is no employment relationship, as when an employee is laid off or terminated, whether temporarily or permanently.
5.Part-time employees are considered to be employed each working day of the calendar week. The same rule would apply to “per diem” home care staff.
6.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.
7.Notably, the proposed regulations fail to address whether employees working outside of New York State count towards an employer’s headcount for purposes of determining coverage.
Substantiating the Need for a Paid Sick Day
Employers may not require medical or other verification in connection with sick leave that lasts less than 3 consecutive scheduled workdays or shifts. Employers may request documentation from an employee who uses sick leave for 3 or more consecutive scheduled workdays or shifts, however, this documentation is strictly limited to: (1) an attestation from a licensed medical provider supporting the existence of a need for sick leave, the amount of leave needed, and a date that the employee may return to work; or (2) an attestation from an employee of their eligibility to leave. “Confidential Information” may not be required or disclosed as part of this documentation. Confidential Information includes information about diagnosis and treatment that is being received or provided to the employee. Just like under the amended New York City Paid Sick Leave Law, employers may not require an employee to pay any costs or fees associated with obtaining medical or other verification of eligibility for use of sick leave.
Accrual Issues
All hours worked must result in accrued time, even if the employee works less than 30-hour increments. If an employee works less than a 30-hour increment, employers may round accrued leave to the nearest 5 minutes or the nearest one-tenth or one-quarter of an hour, provided that the rounding mechanism “will not result, over a period of time, in a failure to provide the proper accrual of leave to employees for all the time they have actually worked.”
If you have any questions about the requirements of the new New York State Paid Sick Leave Law, please let us know. The law is in effect, although some of the requirements do not officially take effect until January 1. Providers who have not already done so should immediately modify their written paid sick leave policies to account for the new requirements, and make modifications to payroll systems that track and accrue the accumulation of employees’ paid sick leave time. Providers who are covered by wage parity should especially take immediate steps to come into compliance with the new paid sick leave law requirements, because the corresponding and related wage parity changes that related to paid leave took effect October 1.