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  • Writer's pictureRyan T. Biesenbach

NYSDOL Adopts New Paid Sick Leave Rules and Proposes HERO Act Workplace Safety Committee Standards

The New York State Department of Labor (“NYSDOL”) recently provided information in the State Register concerning rules that impact employers and employees statewide: New York’s Paid Sick Leave Law (“PSL”) and the HERO Act.

To be clear, these rules have been in force and effect for some time. What the NYSDOL has done is to clarify the application of the PSL (specifically, its adoption of rules concerning the carryover of unused sick, and the documentation requested of an employee using leave) and proposed changes to the workplace safety committees required by the HERO Act.

Paid Sick Leave

To remind readers, after January 1, 2022, New York requires employers with 100 or more employees to provide up to 56 hours of paid sick leave per calendar year; with 5 to 99 employees up to 40 hours of paid sick leave per calendar year; with 4 or fewer employees and net income of greater than $1 million in the previous tax year up to 40 hours of paid sick leave per calendar year; and with 4 or fewer employees and net income is $1 million or less in the previous tax year up to 40 hours of unpaid sick leave per calendar year. Employees can use accrued leave following a verbal or written request to their employer for a variety of reasons impacting the employee or a member of their family for whom they are providing care or assistance with care. And, contrary to the past practices of many employers, Section 196-b of the law prohibits an employer from paying out to employees any unused paid sick leave at year-end

While no changes were made to the rule, the NYSDOL now says employers may do one of the following: (1) give employees the option to voluntarily elect to use and receive payment for paid sick leave prior to the end of a calendar year or carry over unused sick leave; or (2) only allow employees to carry over unused sick leave.

The published final rule also confirms that an employer may not deny an employee leave while attempting to confirm the basis for the leave. If, however, the employer discovers the request to be false or fraudulent, disciplinary action may be taken against the employee. Employers are cautioned to not penalize or otherwise retaliate against an employee for submitting such a request or attestation, as may be prohibited by Section 215 of the Labor Law. The NYSDOL does not believe a documentation requirement for leave less than 3 days is necessary for an investigation into potential employee abuse of sick leave and otherwise believes documentation requirements are sufficient. To that end, the NYSDOL intends to publish an employee attestation template.

HERO Act Workplace Safety Committees

In addition to requiring all New York State employers to develop and adopt a written airborne infectious disease prevention plan, the HERO Act requires all employers of 10 or more to permit the establishment of workplace safety committees. The NYSDOL has proposed regulations that differ from the current statutory framework concerning how those committees will be established and structured, and employer’s obligations under the act.

Specifically, the proposals may require employers with multiple work locations that are not ‘in reasonable geographical proximity’ to have multiple workplace safety committees, contrary to the current requirement for a single committee, regardless of the number of work locations.

The size of committees is also proposed to be a maximum of 12 members or one-third of the total number of employees at each worksite, whichever is fewer, and worksites with less than 10 employees will have three committee members. The proposal also provides that employers must respond with ‘reasonable promptness’ to written requests by two or more non-supervisory employees to establish a committee.

A public hearing on the proposed regulations will be held on February 9, 2022, at 11:00 am.

If you have any questions regarding this article, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ryan T. Biesenbach, the author of this piece, here or at (585) 258-2865.

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