New York City Issues a Final Rule Regarding Amendments to the Earned Safe and Sick Time Act

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Michael J. Fortunato Patricia Tsipras

October 20, 2023

UPDATE:  On January 20, 2024, New York City enacted a law to create a private right of action with a two-year statute of limitations to allow employees to file lawsuits in court alleging violations of the City’s Earned Safe and Sick Time Act.  Filing an administrative complaint will not be a prerequisite or a bar to filing a court action.  Compensatory damages ($500 for the first violation, up to $750 for the second violation, and up to $1,000 for each succeeding violation within two years of a previous violation), injunctive and declaratory relief, attorney’s fees and costs, and other appropriate damages will be available remedies under the new law.  The new law becomes effective on March 20, 2024.

Effective October 15, 2023, the New York City Department of Consumer and Worker Protection issued a Final Rule addressing amendments to the City’s Earned Safe and Sick Time Act (ESSTA).  We outline some of the Final Rule’s key provisions below.

What is the ESSTA?
Under New York City’s ESSTA, covered employees have the right to time off for the care and treatment of themselves or a family member and to seek legal and social services assistance or take other safety measures if the employees or their family members are the victim of any act or threat of domestic violence or unwanted sexual contact, stalking, or human trafficking.

The amount of leave for which covered employees are eligible is dependent on the size of the employer.  In general,

• employers with fewer than five employees and a net income of less than $1 million in the prior tax year must provide employees with up to 40 hours of unpaidsick and safe leave
• employers who employ between five and 99 employees, as well as employers with fewer than five employees and a net income greater than $1 million in the prior tax year must provide each employee with up to 40 hours of paid sick and safe leave per year
• employers with 100 or more employees must provide up to 56 hours of paid sick and safe leave per year

How do you determine an employer’s size?
The Final Rule clarifies that employer size is based on the number of workers that the employer employs nationwide, including (1) part-time employees; (2) employees jointly employed by more than one employer, regardless of whether their names appear on the employer’s payroll; and (3) employees on a paid or unpaid leave of absence, as long as the employer has a reasonable expectation that the employee will later return to active employment.

What if an employer’s size increases or decreases throughout the calendar year?
If an employer increases its number of employees from fewer than five to between five and 99 employees, then the duty to provide paid ESSTA time shall be prospective from the date of the increase and shall not entitle an employee to reimbursement for previously used unpaid ESSTA time.  After the increase, an employer must allow an employee to use, and receive pay for, up to 40 hours of accrued ESSTA time, less the number of unpaid ESSTA hours the employee already used in that calendar year.

If an employer increases its number of employees from 99 or fewer to 100 or more, an employee’s right to use additional paid ESSTA time up to 56 hours shall be prospective from the date of such increase.

Reductions in the number of employees working for an employer shall not reduce employee ESSTA time entitlements until the following calendar year.

Am I a New York City employee if a work remotely?
An employee who performs work, including by telecommuting, only while physically located outside of New York City is not “employed for hire within the City of New York” – and, thus, is not entitled to ESSTA time – even if the employer is located in New York City.

An employee with a primary work location outside of New York City is “employed for hire within the City of New York” – and, thus is entitled to ESSTA time – if they regularly perform, or are expected to regularly perform, work in New York City during a calendar year.  However, for such an employee, only the hours worked in New York City count toward the accrual of ESSTA time.

How and when do I provide notice of my need for ESSTA time?
Employers must address its procedures for providing notice of a need for ESSTA time in a written policy.  Those procedures must allow for notice within a reasonable time when the need for ESSTA time is not foreseeable (a need is foreseeable when the employee is aware of the need to use ESSTA time seven or more days before use).  The Final Rule expands the list of methods by which an employee may provide notice, including “send[ing] an email to a designated email address” and “submit[ting] a leave request in a scheduling software system.”

What documentation must I provide in support of my request for ESSTA time?
If an employer requires documentation to support the request for ESSTA time:

• an employee may provide written documentation from a licensed health care provider, licensed clinical social worker, licensed mental health counselor, or other licensed health care provider
• an employer cannot require the employee to disclose details regarding the incidents underlying the need for safe time
• an employer must give the employee at least seven days to submit documentation
• an employer must reimburse the employee for any reasonable expenses associated with providing the documentation
• an employer cannot require an employee to submit the documentation before returning to work
• an employer cannot require documentation if the ESSTA time lasts three or fewer consecutive workdays
• an employer must have a written policy outlining the types of documentation that the employer will accept and instructions to how employees can submit it

How will I know how much ESSTA time I have accrued and used?
Employers’ pay statements to their employees must identify the amount of ESSTA time accrued and used during the relevant pay period, as well as the total balance of the employee’s accrued ESSTA time available for use.

Do penalties exist for violations of ESSTA rights?
Fines may range from $250 per violation to $500 per covered employee per calendar year in which the unlawful policy or practice was in place.  If an employer is found to have retaliated against an employee for the lawful use of ESSTA time, back pay also may be awarded.

The Final Rule makes it easier to establish violations by creating a “reasonable inference” against the employer if it (1) fails to distribute a compliant ESSTA policy; or (2) fails to maintain adequate records of employees’ accrued ESSTA use and balances.

Employer Takeaways
New York City employers must update their leave policies and train their managers and Human Resources professionals on the ESSTA amendments.

Employers must take caution not to impose barriers to employees’ use of ESSTA time.  For example, do not require employees to find replacement workers to cover missed shifts.  Do not establish unreasonable notice requirements.  And do not set waiting periods or blackout days.

*Special thanks to Ava Petrellese, our Paralegal, for her contributions to this article.

This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice.  Always consult an attorney with specific legal issues.