On December 22, 2021, the New York Department of Labor (Department) issued final regulations regarding the New York State Sick Leave Law (NYSSLL), which has been in effect since September 30, 2020. The final regulations do not contain any changes to the rules initially proposed on December 9, 2020. The proposed regulations, along with the Department’s guidance, had not addressed many important questions affecting businesses. In response to comments from the public about the proposed regulations, the Department clarified some critical issues, but it also left many questions unaddressed—and in some instances, the Department’s response muddies the water rather than clarifies the issues it addresses.
In determining how much sick leave to provide, do employers utilize the number of employees working in New York, or the number of employees working nationwide?
In responding to public comments, the Department stated that employee headcount is based on the number of employees working nationwide. However, the text of the NYSSLL and Department regulations are inexplicably silent on this issue. Thus, employers should utilize the highest total number of employees employed nationwide at any point during the calendar year and include in this count those individuals who are part-time employees, 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....
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