United States: New York City's Earned Safe And Sick Time Act Amended

On September 28, 2020, New York City Mayor Bill de Blasio signed into law amendments to the New York City Earned Safe and Sick Time Act (ESSTA). The amendments were enacted with the chief purpose of aligning ESSTA with the recently enacted New York State sick leave law (the NYS Law). The ESSTA amendments, however, in some instances go beyond the NYS Law's requirements, and indeed, impose important new requirements on New York City (NYC) employers. For instance, the ESSTA amendments include an obligation that employers provide NYC employees with a written notice of their accrued and used amounts of sick leave pay each period. Both the ESSTA amendments and the NYS Law took effect September 30, 2020.

Here is a brief overview of the amendments to ESSTA:

• Consistent with the NYS Law, the amount of safe/sick time employees are eligible to accrue under ESSTA (at least at the rate of one hour of safe/sick time for every 30 hours worked) and whether it is paid or unpaid, is determined as follows:
  • Employers with four or fewer employees and a net income of less than $1 million in the previous tax year must provide employees with at least 40 hours of unpaid safe/sick time per calendar year.
  • Employers with four or fewer employees and a net income of greater than $1 million in the previous tax year; employers with one or more domestic workers; and employers with between five and 99 employees must provide employees with at least 40 hours of paid safe/sick time per calendar year.
  • Employers with 100 or more employees must provide employees with at least 56 hours of paid safe/sick time per calendar year.
• Employees no longer need to work more than 80 hours in a calendar year within NYC to be eligible to accrue safe and/or sick time under ESSTA.
• Beginning January 1, 2021, employees may use paid safe/sick time as it is accrued, which is also consistent with the dictates of the NYS Law. Previously, ESSTA allowed employees to begin using accrued safe/sick time on the 120th calendar day following commencement of the employee's employment. This 120-day waiting period has been eliminated.
• Critically, the amount of safe/sick time accrued and used during a pay period and an employee's total balance of accrued safe/sick time must be noted on the employee's pay stub or in some other written form provided to the employee each pay period. The NYS Law does not require such a notice be provided to employees each pay period, but it does require employers to provide a summary of the amounts of sick leave accrued and used by the employee in the current calendar year and/or any previous calendar year within three business days of an employee's request for such information.
• If an employer requires an employee to produce documentation substantiating the employee's absence of more than three consecutive work days for sick or safe time (as the employer is permitted to do under ESSTA), and the employee incurs a fee or expense for obtaining such documentation (such as from a health care provider), the employer must reimburse the employee for such fee. The NYS Law is currently silent on an employer's right to request reasonable documentation from an employee to substantiate employee leave.
• Written notice of an employee's rights under ESSTA must now be provided to employees at the commencement of employment, and the notice must be conspicuously posted at the employer's place of business in an area accessible by employees. Previously, ESSTA only required that the notice be provided to employees.
• The ESSTA amendments also increased the penalties that may be assessed against employers for violations of the law and granted authority to the NYC Corporation Counsel (or such persons designated by the Corporation Counsel) to, among other things, bring civil actions against employers for non-compliance with ESSTA and initiate investigations to ascertain any facts necessary to bring civil actions.

With both the ESSTA amendments and the NYS Law taking effect on September 30, 2020, NYC employers will need to act expeditiously to update their policies and practices to ensure compliance with both state and city law. Employers must work with their PEOs and payroll companies to ensure that, to comply with ESSTA, the amount of safe and/or sick time accrued and used during a pay period is reflected on each employee's pay stub or is otherwise provided in writing to employees each pay period.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.