New York City employers must amend sick leave policies for recent legal changes

On September 30, 2020, amendments to the New York City Earned Safe and Sick Time Act (ESSTA) went into effect (the NYC Amendments), which require New York City employers to amend their existing sick leave policies as soon as possible. The NYC Amendments attempt to align the ESSTA more closely with the recently-enacted New York State sick leave law, which also went into effect on September 30, 2020 (though employees do not have the right to use accrued sick leave under the New York State sick leave law until January 1, 2021). For more information about the recent New York State sick leave law, see our prior legal update, Comprehensive New York State paid sick leave law (not specific to COVID) to take effect soon; New York employers should be prepared.

Changes to the ESSTA made by the NYC Amendments

The NYC Amendments make various changes to the ESSTA, including without limitation the following:

• The employer coverage requirements for paid versus unpaid safe/sick leave and the amount of such leave are now aligned with the requirements of the New York State sick leave law, as follows:
  • For employers with 100 or more employees (Large Employers), up to 56 hours of paid safe/sick leave per year must be provided to each employee.
  • For employers with between five and 99 employees, and for employers with fewer than five employees but with a net income in excess of US$1 million during the previous tax year, up to 40 hours of paid safe/sick leave per year must be provided to each employee.
  • For employers with fewer than five employees who have a net income of US$1 million or less during the previous tax year (Small Employers), up to 40 hours of unpaid safe/sick leave per year must be provided to each employee.
• Employers with 100 or more employees must allow up to 56 unused hours of safe/sick leave per year to be carried over to the following calendar year (or pay their employees for unused safe/sick time at the end of the calendar year if the employer frontloads 56 hours of safe/sick time on January 1 of the subsequent year). 
• Employers must allow employees to use safe/sick time as it is accrued (the NYC Amendments eliminate employers' ability to impose a waiting period of up to 120 days before new hires can use safe/sick leave). This requirement does not apply to Small Employers until January 1, 2021, and for Large Employers this requirement does not apply to safe/sick time in excess of 40 hours per calendar year until January 1, 2021.
• Employers that require documentation to substantiate safe/sick leave absences longer than three consecutive days are required to reimburse employees for certain costs and expenses incurred for the purpose of obtaining such documentation.
• Each pay period, employers must include the amount of safe/sick time accrued and used during the pay period and the total balance of accrued safe/sick time on a pay stub or similar written pay statement. Employers that fail to comply with this requirement may be subject to a civil penalty of up to US$50 for each employee who was not given the required notice.
• Under prior law, domestic workers were subject to different safe/sick time rules than other types of workers (e.g., domestic workers were not entitled to safe/sick time until they had been continuously employed by the same employer for one year, and they received two days of safe/sick time per calendar year rather than accruing safe/sick time based on hours worked). Now, domestic workers are treated the same as other types of workers for all purposes under the ESSTA. 
• Under prior law, an employee had to work 80 hours per calendar year within New York City to be eligible for safe/sick leave. The NYC Amendments remove that requirement.
• The anti-retaliation provisions of the ESSTA are expanded and defined as "adverse actions.”
• New civil penalties of up to US$15,000 (as well as individual relief of up to US$500 to each affected employee) may be imposed for violations of the ESSTA.
• Employers are now required to conspicuously post the notice of rights under the ESSTA in the workplace in an area accessible to employees (under prior law, this was optional).
• In addition to providing new hires with the notice of rights under the ESSTA at the commencement of employment, employers must provide existing employees with notice of the changes made by the NYC Amendments by October 30, 2020. An updated model notice is expected to be issued by the New York City Department of Consumer Affairs in the near future. 

NYC employers should take action now

One of the requirements of the ESSTA is that covered employers maintain a compliant written safe/sick leave policy. Accordingly, New York City employers must amend their safe/sick leave policies as soon as possible to reflect the changes to the ESSTA made by the NYC Amendments. We continue to await guidance from the New York State Department of Labor on whether a written sick leave policy will be a requirement of the New York State sick leave law.

Further, New York City covered employers should make sure that they promptly comply with the requirement to disclose to employees accrued and used safe/sick time on employee pay stubs and/or payroll statements. To the extent an employer outsources its payroll, the employer should reach out to its payroll provider to ensure compliance with this new requirement.

Further assistance

We would be happy to assist you with revising your company's safe/sick leave policy to comply with the ESSTA as revised by the NYC Amendments and/or to answer any questions that you have regarding the New York State and New York City sick leave laws.