(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: For accrual method sick leave, would an employee
have to work at least 30 hours before accruing any leave or does an employee
accrue a fraction of a leave hour for each fraction of 30 hours an employee
works?
A: The DOL’s final regulations state that accrual must account for all time worked regardless of whether time worked is less than a 30-hour increment and, “employers may round accrued leave to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour.” Rounding cannot, over time, result in a failure to provide for the proper accrual of leave to employees for the time they have actually worked.
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