Submission Date:
Question:
Our Library has a CSEA Collective Bargaining Agreement with Employees, and individual employment contracts with administrators. All documents codify how many accrued vacation days and sick days an individual employee can “sell back” or be reimbursed for upon separation from service (resignation or retirement). The documents do not address remaining accrued time that employees have earned during their years of service. In NYS labor law are there any regulations stipulating how the employer must handle the balance of accrued time? Does it have a monetary value? May the employee submit for the balance of vacation time off before their separation from service? Are there any circumstances where the employee would have to forfeit their earned/accrued vacation time?
Answer:
Depending on the employer, there are a lot of types of “accrued time,” but for this answer,[1] we’ll address the Big Five: vacation, personal, sick leave, prenatal care, and flex/comp.
Spring is upon us, so I am going to answer this question with the help of some veggies.
When it comes to “paid time off,” vacation is the Big Potato, with formulas set for its accrual, use, and—when unused—carryover into the next year.
By law (and case law),[2] vacation must be paid out at the time of termination, unless a policy limits or imposes conditions on the payout. This is what many employers use as an incentive to require minimum notice before resignation.
Personal Time is Celery: crisp, refreshing, and with a low shelf life. While a generous employer can allow it to accrue and/or pay it out, there is no law requiring that.
Sick Leave is any of several varieties of Tomato; it is now required by law[3] for private employers (whose obligations vary by size) and remains discretionary for public employers. Once implemented, it impacts calculations for New York State retirement pensions (as alluded to by the member).
Prenatal care leave is a new (2025) variety of Ground Cherry. Prenatal care leave is accrued time (20 hours per year) that private employers must offer.[4] By law, it does not carry over from year-to-year and is not paid out.
“Flex time” and “comp time” are systems of carrying over work performed on one day to reduce the work on another.[5] Entire volumes can be written about them, but for purposes of this question: Like Winter Lettuce, they last forever. If unused, they must be paid out, as they represent work performed (although how this is done can vary greatly, including banking the time to donate to another employee in need).
So, with that array of veggies before us, let’s answer the questions:
In NYS labor law are there any regulations stipulating how the employer must handle the balance of accrued time?
Under Labor Law 196-b and 12 NYCRR 196, employers subject to the Paid Sick Leave Law must provide current information on accrued sick leave within three business days. There is no similar regulatory requirement for vacation time, which is governed by Labor Law 198-c. These laws and regulations only apply to private employers (not civil service employers).
Does it have a monetary value?
For employees of private employers, the law only creates monetary value in accrued vacation.
For employees in the NYS Local Retirement System, unused sick time adds to the calculation of days of service, which is not a dollar-for-dollar cash in but does have value.[6]
May the employee submit for the balance of vacation time off before their separation from service?
Yes, although they might not get approved for the time off. Employers try to avoid a “pre-quit vacation” by requiring advance notice and approval of vacation requests. But depending on the policy in place and how likely an employer is to deny the time out, it is feasible.
Are there any circumstances where the employee would have to forfeit their earned/accrued vacation time?
Yes: by policy, employees may have to forfeit earned/accrued vacation time due to:
- Accrual beyond what can be “carried over” from year to year;
- Lack of adequate notice prior to resignation;
- Termination for misconduct; or
- A cap on payout.
For a private employer subject to Labor Law 198-c, all these reasons must be set out in a clearly in a written policy to be enforced, or there can be criminal penalties for failure to pay out the accrued vacation time.
For public employers, the lack of policy with respect to vacation opens them up to a dispute, but the dispute would be so fact-specific that I can’t outline all the permutations here. Suffice it to say: public employers should have clear policy and should speak with their unions, or a lawyer, when in doubt!
[1] We’re going to leave out FMLA, disability, workers’ comp, and paid family leave, as they don’t “accrue,” so much as they are tripped and then capped by law and circumstance.
[2] New York State Labor Law Section 198-c.
[3] Since 2020, per Labor Law Section 196-b.
[4] Also Labor Law 196-b, just a more recent amendment than the one that created paid sick leave.
[5] If you are a private employer, do not use this to carry over time between pay periods!
[6] See Retirement and Social Security Law Section 33.
