(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 a private sector 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: How do you determine the size of the employer's workforce? Do
employers use the number of employees working in New York, or the number of
employees working nationwide?
A: The NYSLL and the Rules are silent on this issue. However,
in response to public comments, the DOL stated that employee headcount includes
“all of the employer’s employees nationwide”. Employers must use the “highest
total number of employees concurrently employed at any point during the
calendar year”, and include in this count those employees nationwide who are
part-time, jointly employed, and employees on paid or unpaid leave (including
leaves of absence, disciplinary suspension, other temporary absences) who are
reasonably expected to return to active employment. To determine the total number of employees, "calendar year" means the 12 month period from January 1 to December 31. Only employees working in
New York must be provided sick leave under the NYSLL.