New York City Amends Earned Sick and Safe Time Act Rules

On September 15, 2023, the New York City Department of Consumer and Worker Protection amended rules related to the city’s Earned Sick and Safe Time Act (ESSTA). The changes, effective on October 15, 2023, are designed to better align the rules with the state’s paid sick leave law.

Since 2014, New York City has required private employers with five or more employees to provide a certain amount of job-protected paid sick leave to employees who work in the city. Subsequently, the permissible reasons for using paid sick leave were amended to also include time to seek assistance for situations involving domestic violence or unwanted sexual contact, stalking or human trafficking.

After New York State’s paid sick leave law was enacted in 2020, the ESSTA was amended to align the city’s law with the state law. For more information regarding the state law, please see our April 28, 2020, and January 4, 2022, articles and visit the state’s website: New York Paid Sick Leave (ny.gov). Accordingly, the recent rule amendments align the rules with the statutory amendments made in 2020.

The rule amendments also clarify the compliance obligations of covered employers. For example, among other items, the rule amendments:

• Clarify the calculation of employer size for the purpose of determining whether an employer must pay workers for earned safe and sick time and how many hours of safe and sick time an employer must provide.
• Explain how ESSTA applies to workers who work in both New York City and other jurisdictions.
• Provide examples of reasonable notice procedures that employers may ask employees to follow to provide notice of the need for safe and sick time.
• Identify the types of and limitations on documentation employers may require to determine whether use of safe and sick time is authorized by the ESSTA.
• Clarify employers’ obligations to reimburse fees or costs incurred to obtain documentation.
• Explain how employers can comply with the requirement to inform employees of their safe and sick time accruals and balances on a paystub or other written documentation each pay period.
• Clarify requirements regarding the rate of pay for safe and sick time under the ESSTA.
• Clarify that the ESSTA requires employers to ensure that employees retain their accrued safe and sick time through any business sale, transfer in corporate ownership, or change in subcontracting relationship between corporate entities.

Employers must maintain written safe and sick time policies and distribute the policies to employees upon commencement of employment, within 14 days of the effective date of any changes, and upon request by the employee. Among other items, the written policies must address the employer's method of calculating safe and sick time and the availability of any frontloaded or accrued time, any notice and documentation requirements and the process of obtaining reimbursement for the cost of required documentation.

Additionally, employers must create and retain records to demonstrate compliance with the ESSTA requirements. The amended rules also address enforcement and penalties assessable to employers that do not provide safe and sick time as required by the ESSTA.

New York City employers should review their existing sick and safe time leave policies and practices for compliance with the ESSTA rules and make any necessary changes. Employment law counsel should be consulted for specific advice and guidance.

Notice of Adoption of Final Rule »