(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: Is an employee that receives frontloaded sick leave at the beginning of the calendar year, permitted to carry over unused sick leave to the next calendar year?  

A: Under the NYSLL, accrued but unused sick leave must be carried over to the following year. Yet, the NYSLL and the Rules are silent as to whether the carryover requirement applies when employers “frontload” sick leave. The NYDOL clarified this point in its response to comments. Employers cannot cap the amount of accrued, unused sick leave that employees can carry over from one calendar year into the next, even when an employer frontloads sick leave. But, the employer is permitted to cap sick leave use in a calendar year at 40 hours or 56 hours, depending on employer size. That means even if an employee ends up with accrued unused sick leave in excess of the maximum permitted hours due to a carryover, that employee may not be able to use the excess sick leave.  Note also, the DOL stated that employers have the discretion to: (1) give employees the option to elect to use and receive payment for paid sick leave prior to the end of a calendar year or to carry over unused sick leave; or (2) only allow employees to carry over unused sick leave.

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