NEW YORK STATE DEPARTMENT OF LABOR IMPLENENTS NEW RULES REGARDING PAID SICK LEAVE AND PROPOSES CHANGES TO HERO ACT
12.22.2021
Changes to Paid Sick Leave
On December 22, 2021, the New York State Department of Labor (“DOL”) implemented issued final regulations with clarifications about the New York State Paid Sick Leave Act (“PSLA”).
The DOL clarified that employers can allow employees to receive a payout of their unused paid sick leave at the end of the year (i.e., “cash out” their sick leave). Employers may not, however, require employees to cash out their sick leave; if an employee wishes to carry their accumulated sick leave over to the next year (i.e., “roll” their sick leave), they remain entitled to do so. As such, employers are either required to give their employees the option of 1) being able to either “cash out” or “roll over” their unused accumulated sick leave, or 2) only allow employees to “roll over” their unused accumulated sick leave. Employers are not allowed to implement a “use it or lose it” policy with respect to PSLA leave.
Note: The DOL regulation departs slightly from the New York City‘s paid sick leave law. New York City‘s paid sick leave law indicates that an employer is not required to carry over sick leave and can choose to pay an employee for unused sick leave if the employer pays employees for the unused accrued sick leave and the employer frontloads the maximum sick leave hours to the employee on the first day of the new Calendar Year or if the employer frontloaded the sick leave hours at the start of the Calendar year already and will frontload the sick leave hours in the new Calendar Year.
The DOL also provided clarification as to the calculation of the number of employees in determining the amount of sick leave employers are required to provide. Previously, there was confusion on the part of employers with operations in multiple states as to which of their employees counted towards the total for PSLA purposes. The DOL stated that the amount of sick leave an employer is required to offer depends on the total number of employees the employer has nationwide, regardless of how many of those employees work within New York State. That notwithstanding, under New York State Law, employers are only required to provide sick leave under the PLSA to employees that work in New York State.
Proposed Changes to HERO Act
Additionally, in its latest round of Rulemaking, DOL introduced proposed changes to Section 27-d of the New York State Labor Law, the portion of the HERO Act that pertains to Workplace Safety Committees.
The proposed regulations include sections on definitions, committee establishment, committee rules, and employer obligations. Some highlights of the proposed regulations include the following:
1.The number of employees an employer counts for coverage purposes consists only of the employees that are employed within New York State.
2.Part-time, newly hired, temporary, and seasonal employees, like full-time employees, are considered to be employees.
3.Workplace safety committees may be established for each worksite following a written request for recognition by at least two non-supervisory employees who work at the worksite.
4.Upon the receipt of a request for recognition, employers shall respond to such request with reasonable promptness, but there is no specification of an exact time period. However, after recognition, the employer must provide all employees a notice of recognition within five days.
5.Requests for committee recognition may be denied where a committee already exists that complies with the law.
6.Workplace safety committees shall be comprised of not less than two non-supervisory employees and not less than one employer representative. The maximum size of a safety committee shall be the smaller of twelve employees or 1/3 of the total number of employees at the work site.
7.The ratio of non-supervisory employees to employer representatives shall not be less than two non-supervisory employees to one employer representative at any given time.
8.Where collective bargaining agreements are in place, the bargaining agent may select the employee members for the committee.
9.In worksites where a collective bargaining agreement is not in effect, employees will select the members of the committee and employer involvement in the process is prohibited. No specific process or form is required; employees will be free to select members in any way they see fit.
10.Employers must respond to concerns from the committee, respond to committee requests relating to duties of workplace safety, provide notice when a government agency enforcing safety and health standards is coming for a site visit, and appoint an employer representative to act as a co-chair of the committee, among other requirements.
In accordance with New York State Law and Procedure, a hearing regarding these proposed changes will be held on February 9, 2022 at 11:00 a.m. at a location that will be announced on the Department of Labor‘s website. Employers and members of the public will have the opportunity to submit comments at this hearing, so if you have any comments or concerns, you are encouraged to make such comments to the committee.
If you are an employer or employee that will be affected by these changes or proposed changes, and you have further questions or concerns, please do not hesitate to call us at (718) 402-2240.
