In 2020, New York City amended its Earned Safe and Sick Time Act (ESSTA) to align with New York state’s paid sick leave law and to clarify various notice and enforcement provisions. Effective Oct. 15, 2023, the NYC Department of Consumer and Worker Protection adopted new rules regarding the ESSTA. These new rules bring the ESSTA’s rules into alignment with the statutory amendments made in 2020 and provide clarification for employers about compliance obligations.
The ESSTA’s Basic Requirements
The ESSTA requires employers to provide employees working in NYC with safe/sick leave for the care and treatment of an employee or an employee’s family member and to seek legal and social services assistance or take other safety measures if the employee or a family member may be the victim of any act or threat of domestic violence or unwanted sexual contact, stalking or human trafficking. Under the ESSTA, employers may allow covered employees to use safe/sick leave as it accrues, or employers may front-load it at the beginning of the year.
The amount of safe/sick leave that is required depends on employer size, as follows:
- Employers with 100 or more employees must provide up to 56 hours of paid leave each calendar year.
- Employers with five to 99 employees must provide up to 40 hours of paid leave each calendar year.
- Employers with four or fewer employees and a net income of $1 million or more must provide up to 40 hours of paid leave each calendar year.
- Employers with four or fewer employees and a net income of less than $1 million must provide up to 40 hours of unpaid leave each calendar year.
- Employers with one or more domestic workers must provide up to 40 hours of paid leave each calendar year; employers with 100 or more domestic workers must provide up to 56 hours of paid leave each calendar year.
The New Rules
NYC’s Department of Consumer and Worker Protection promulgated new rules to clarify certain aspects of the ESSTA. Here are some of the highlights of the new rules.
Employer size is based on the employer’s total number of employees nationwide and counting the highest number of employees concurrently employed at any point during the calendar year. The count must include part-time employees, employees jointly employed by more than one employer and employees on leave. If an employer increases the number of employees during a calendar year to a higher threshold, it must immediately provide additional safe/sick leave to all employees for the duration of the year; however, if an employer reduces the number of employees, the employer may not decrease safe/sick leave until the following calendar year.
Covered Employees, Accrual and Usage:
Employees who perform work, including telecommuting, while physically located outside NYC are generally not eligible for safe/sick leave, regardless of whether their employer is located in NYC. However, an employee based outside NYC will be eligible to take safe/sick leave if the employee is expected to, or regularly does, perform work in NYC during a calendar year. Only hours worked by such an employee in NYC will count toward the accrual of safe/sick leave, and the employee may only take safe/sick leave for work they are to perform in NYC. Notably, the new rules also clarify the following:
- The prior requirement of an employee working for more than 80 hours per calendar year in NYC is no longer in effect.
- Per diem employees may use sick/safe time for hours they were scheduled or would have worked absent their need for leave.
- Accruals must account for all time worked, even if less than a 30-hour increment, though employers may round to the nearest five minutes or one-tenth or quarter of an hour so long as this does not result in a failure to provide proper accrual over an extended period.
Notice and Documentation:
An employer may ask employees to provide reasonable notice of the need to use safe/sick leave, so long as the employer has a written policy reflecting its notice requirement, including the method of and procedure for providing such notice. Employers cannot require more than seven days’ notice, and a need for safe/sick leave is foreseeable only when the employee is aware of the need to use safe/sick leave seven or more days before use.
Similarly, if an employer requires documentation from an employee who has used safe/sick leave for more than three consecutive days, the employer must have a policy that includes this requirement, the types of acceptable documentation and instructions for submitting the documentation. Employers must provide employees at least seven days after their return to obtain such documentation. For sick time, acceptable documentation reflects the amount of sick time and date taken and may be signed by a licensed clinical social worker, mental health counselor or other licensed health care provider.
Additionally, employer policies must inform employees that:
- Front-loaded time will be immediately available for use.
- Accrual starts at the commencement of employment and employees may use sick/safe time as it accrues.
- The employer will not ask the employee to provide details about the medical condition that led the employee to use sick time, or the personal situation that led the employee to use safe time.
- Any information the employer receives about the employee’s use of safe/sick time will be kept confidential and not disclosed to anyone without the employee’s written permission or as required by law.
Employers who do not provide employees with their sick/safe time policy, and any related forms or procedures, may not deny safe/sick time or take any adverse action against an employee for noncompliance with any requirements related to the employer’s sick/safe time policy. Moreover, an employer is presumed noncompliant with the ESSTA if the employer fails to distribute such a policy, maintain records required by the ESSTA or comply with a number of other requirements of the ESSTA.
Notice of Accrual and Use on Pay Statements:
Pay statements generally must include the amount of safe/sick time accrued and used during each pay period as well as the employee’s total available balance. If an employee’s total accrued time exceeds what is available for use in the calendar year, the employer must provide the balance available for use in the calendar year either on the employee’s pay statement or through other written means. If an employer uses an electronic pay statement or other electronic system to track and inform employees of their leave accrual and usage, the employer must electronically alert the employee each pay period to the availability of the above information and must ensure that employees can access this information outside of the workplace.
Employers must pay employees for paid safe/sick time at the employee’s rate of pay at the time the paid safe/sick time is taken (not the employee’s rate of pay when it was accrued). Although tipped employees are not entitled to tips while on leave, employers cannot take a tip credit or tip allowance for time spent on leave. Employers need not pay employees who fail to provide required documentation in support of their safe/sick leave, unless either (1) the documentation is unattainable due to cost, or (2) the employer failed to provide advance written notice of its policy on requiring documentation and that employees may seek reimbursement for fees or costs associated with the documentation. Employees who provide proof of fees or costs for documentation must be reimbursed by at least the next payroll period after the proof was provided.
Sale of Business:
In the event of a business sale, transfer or change in subcontracting relationship, employers must transfer employees’ safe/sick time balances. If this does not occur, the original and successor employer, and any joint employer, will be individually and jointly liable, regardless of any agreement between them to the contrary.
Relief for violations of the ESSTA include:
- $500 per employee per year that the violating policy or practice was in effect.
- Crediting the number of hours of safe/sick time the employee should have accrued, so long as doing so does not result in a safe/sick leave balance that exceeds two times the maximum number of hours available for use in a calendar year.
Next Steps for Employers
Given the recent adoption of these new rules and the number of clarifications therein, employers should review their current NYC safe/sick leave policies to ensure compliance.
For questions about these new rules, the ESSTA or New York labor and employment laws more generally, contact the authors of this article or another member of the McGuireWoods labor and employment team.