New York City Employers Must Heed the Amended Rules Governing the NYC Earned Safe and Sick Time Act
New York, N.Y. (November 16, 2023) – The New York City Department of Consumer and Worker Protection (“DCWP”) recently adopted amended rules related to the Earned Safe and Sick Time Act (“ESSTA”).
The amendments – which took effect on October 15, 2023 - bring the rules into alignment with the statutory amendments made to the ESSTA back in 2020. Of note, the amended rules:
- Clarify how to determine employer size;
- Explain coverage requirements for employees who telecommute or work primarily outside NYC;
- Address notice, documentation, pay statement, and written policy requirements;
- Clarify rate of pay requirements for safe/sick time; and
- Describe and provide examples of employer conduct that could violate the ESSTA.
Given these developments, employers should review their existing safe and sick time policies and practices to make sure they align with the amendments in order to avoid potential DCWP investigations and penalties.
Under ESSTA, covered employees have the right to use safe/sick time for the care and treatment of themselves and certain covered family members or to seek legal and social services assistance or take other safety measures if they or a family member may be the victim of domestic violence, sexual assault, stalking, or human trafficking. The amount of safe/sick time available to an employee is based on employer size as follows:
- Employers with 100 or more employees must provide up to 56 hours of paid leave each year.
- Employers with five to 99 employees must provide up to 40 hours of paid leave each 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 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 year.
How to Determine Employer Size
Similar to the New York State Paid Sick Leave Law, NYC’s amended rules clarify that employer size is based on the employer’s total number of employees nationwide (including part-time and jointly employed employees). The highest total number of employees concurrently employed at any point during the calendar year will determine employer size. Even employees on paid or unpaid leave should be counted as long as the employee is expected to later return to active employment.
If an employer increases the number of employees from less than five to between 5 and 99, employees must be allowed to use up to 40 hours of accrued safe/sick time from the date of the increase in the number of employees. If an employer increases the number of employees from 99 or fewer to 100 or more, employees must be allowed to use up to 56 hours of accrued safe/sick time from the date of the increase in the number of employees. Conversely, when the employee headcount decreases below 100 employees, an employer can’t reduce the accrual of safe/sick time from 56 to 40 hours until the beginning of the next benefit year.
Which Employees Are Covered?
Covered employees include those who: (i) perform work, including work by telecommuting, while the employee is physically located in New York City, regardless of where the employer is located; or (ii) have a primary work location outside of New York City, but regularly perform work, or are expected to regularly perform work, within New York City. For such an employee, only hours worked in New York City count toward the accrual of safe/sick time. Employees who only perform work while physically located outside of New York City are not covered, even if the employer is located within New York City.
Employee Notification of Use of Safe/Sick Time
An employer may require an employee to provide reasonable notice of the need to use safe/sick time, provided the employer maintains a written policy that establishes the notice requirement and method of notice permitted. A need for leave is foreseeable when the employee is aware of the need to use safe/sick time seven days or more before such use. Otherwise, the need is deemed to be unforeseeable.
When the need for leave is unforeseeable, the employer’s written policy must contain reasonable procedures for the employee to provide notice as soon as practicable.
Examples of such reasonable procedures include, but are not limited to, instructing an employee to: (i) call a designated phone number; (ii) follow a uniform call-in procedure; (iii) send an email to a designated email address; (iv) submit a leave request in a scheduling software system, provided the employee has access to the system on non-work time, and has been trained and given written instructions on how to use the system; or (v) use of another reasonable and accessible means of communication identified by the employer. Note that an employer cannot require an employee to appear in person to deliver any document to the employer while using safe/sick time.
When the need for leave is foreseeable, the employer’s written policy must contain procedures that describe how the employee should provide reasonable notice, which may include any of the procedures described above.
Note that although New York City ’s rules permit employers to require advance written notice of the need for foreseeable leave, New York State is not so generous. Under New York State’s paid sick leave law, there is no specified notice or time period requirement, provided an employee makes an oral or written request to the employer prior to using the accrued sick leave.
Documentation Requirements and Limitations
Employers cannot require documentation verifying that the leave is needed for an authorized purpose unless an employee is absent for more than three consecutive work days. The amended rules require that the employer include any documentation requirements in its written policy, including the types of documentation accepted and instructions on how to submit the documentation to the employer.
The amended rules also clarify that, in addition to providing written documentation from a licensed health care provider, an employee can provide written documentation from a licensed clinical social worker or licensed mental health counselor.
The rules also reiterate that documentation cannot require the disclosure of the medical condition or personal situation that led to the need for safe/sick time. If an employer requests documentation for safe/sick time, the employer must reimburse the employee for any fees charged by health care providers for providing the documentation, or in the case of safe time, all reasonable costs incurred while obtaining the documentation. Employees may not be required to submit the documentation as a condition for being permitted to return to work.
Pay Statement Requirements
The employer must provide a pay statement or other form of written documentation informing the employee of the amount of safe/sick time accrued and used during the relevant pay period. Employers also must inform the employee of the total balance of the employee’s accrued safe/sick time and the amount of accrued safe/sick time that is available for use by the employee.
Clarifications on Pay Rate
The employee must be paid at the employee’s regular rate of pay at the time leave is taken, provided that the rate is not less than minimum wage. If the employee uses paid safe/sick time during work hours that would have been designated as overtime, the employer is not required to pay the overtime rate. An employee is not entitled to compensation for lost tips or gratuities. If the employee’s regular rate of pay is based on tips or gratuities, however, the employee must be paid at least the minimum wage rate.
Written Policy Requirements
In addition to providing employees with a Notice of Rights form, the ESSTA requires employers to maintain a written safe/sick time policy that satisfies certain content requirements, including the employer’s method of calculating safe/sick time, how much time accrues or is frontloaded, and any employer policies regarding notice, documentation, minimum increments, carry-over, and discipline for misuse of paid safe/sick time.
In addition, the amended rules also provide that a written policy must include a statement that 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, and that any information received by the employer will be kept confidential and will not be disclosed to anyone without the employee’s written permission or as required by law.
Enforcement and Penalties
The amended rules identify evidence that can be used to create a reasonable inference that an employer failed or refused to provide paid safe/sick time, including the employer’s failure to maintain or distribute a compliant written safe/sick time policy and the employer’s failure to maintain adequate records of an employee’s accrued safe/sick time use.
The amended rules also list additional conduct that can be used as evidence to support an inference of employer non-compliance, including the use of unlawful barriers to an employee’s use of safe/sick time, such as: i) requirements that employees find replacement workers to cover shifts missed due to safe/sick time; ii) unreasonable notice requirements, or requirements that workers provide medical documentation for absences of three consecutive days or fewer; iii) use of probation periods, waiting periods, blackout days, or other measures that prevent employees from using safe/sick time; iv) penalizing employee use of safe/sick time in any way, such as a points system that does not differentiate between safe/sick time absences and other absences; v) and failing to inform employees that safe/sick time is available.
It Is important to note that if an unlawful policy or practice spanned over multiple calendar years, a separate violation is considered to have occurred for each of the respective calendar years.
If you have any further questions about the amendments to ESSTA, do not hesitate to reach out to the authors of this alert. The professionals in Lewis Brisbois’ Labor & Employment Practice are available to assist with compliance issues arising under these and all existing laws and regulations.
Diane L. Waters, Administrative Partner - Dallas Office and Co-Chair of Employment Advice & Counseling Practice
Daniel Axelrod, Associate
Peter T. Shapiro, Partner