(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.

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