(Employment Practices Update as of January 2022)

Rules implementing NY’s Sick Leave Law (NYSLL) were adopted in late December 2021. The Rules, and the NY Department of Labor’s responses to public comment, clarified some important issues.

The amount of leave an employer must provide under the NYSLL and whether it is paid, depends on the size of the employer’s workforce. Employers with 4 or less employees and annual revenue of $1 million or less must provide up to 40 hours of unpaid sick leave. Employers with 4 or less employees and annual revenue greater than $1 million, and employers with between five and ninety-nine employees, must provide up to 40 paid hours of sick leave. Employers with one hundred or more employees must provide up to 56 paid hours of sick leave. Sick leave is accrued at a rate one hour for every thirty hours worked (accrual method) unless an employer chooses to “front load”, meaning the employer may choose to provide the full amount of sick leave at the beginning of the year (e.g., a business with over a 100 employees could provide 56 hours of sick leave to each employee starting January 1 of each year or at the beginning of a twelve month period as determined by the employer).

Q: What if the employer’s nationwide workforce grows beyond the 100-employee threshold - are its NY employees entitled to accrue up to 56 hours of paid sick leave when the threshold is met?

A: The maximum annual accrual would go from 40 to 56 hours, with accruals at the new cap beginning on the date the employer passes the 100-employee threshold. Employees that have already reached the 40-hour maximum and stopped accruing leave, would begin to accrue leave again, at the same statutory accrual rate, until the new accrual cap of 56 hours has been met.

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