New York City Amends Safe and Sick Time Regulations | Hinshaw & Culbertson – Employment Law Observer

On September 15, 2023, the New York City Department of Consumer and Worker Protection issued amended rules relating to the New York City Earned Safe and Sick Time Act (“ESSTA”). The amendments codified the New York City Council statutory amendments to the ESSTA in 2020, which was designed to align the ESSTA with the New York State Paid Sick Leave Law. The amended rules went into effect on October 15, 2023.

On September 15, 2023, the New York City Department of Consumer and Worker Protection issued amended rules relating to the New York City Earned Safe and Sick Time Act (“ESSTA”). The amendments codified the New York City Council statutory amendments to the ESSTA in 2020, which was designed to align the ESSTA with the New York State Paid Sick Leave Law. The amended rules went into effect on October 15, 2023.

Overview

The ESSTA requires that employers provide their employees with the right to use safe and sick leave for the care and treatment of themselves or a family member, to seek legal and social services assistance, or take other safety measures if the employee or a family member may be the victim of any act or threat of domestic violence or unwanted sexual contact, stalking, or human trafficking.

The amount of leave depends upon the employer’s size:

  • Employers with 100 or more employees must provide up to 56 hours of paid leave each calendar year.
  • Employers with 5 to 99 employees must provide up to 40 hours of paid leave each calendar 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 calendar 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 calendar year.

Employer Size

The amended rules provide clarification on how an employer’s size is calculated. Specifically, the rules state that an employer’s size is determined based on the total number of employees nationwide. The total number of employees includes part-time employees, employees jointly employed by more than one employer, and employees on paid or unpaid leave.

The amended rules discussed the effects of increases and decreases to an employer’s workforce during a calendar year. Suppose an employer increases the number of employees from fewer than five to between five and 99 employees. In that case, the employer must provide its employees with 40 paid hours of safe/sick time prospective from the date of the size increase.

The same applies to an employer who increases the number of employees to 100 or more during a calendar year. The employer is obligated to provide its employees with up to 56 hours of paid safe and sick leave prospective from the date of such increase in the workforce. However, if an employer reduces the number of employees, the employer cannot lower its employees’ safe and sick leave entitlements until the following calendar year.

The amended rules also guided employees who primarily work remotely. The rules explain that “an employee who only performs work, including by telecommuting, while physically located outside of New York City, is not ‘employed for hire within the City of New York,’ even if the employer is located in New York City.”

However, “an employee with a primary work location outside of New York City is ‘employed for hire within the City of New York’ if they regularly perform, or are expected to regularly perform, work in New York City during a calendar year.” 

The amended rules gave two examples to illustrate whether a teleworking employee would be subject to the ESSTA:

  • Example 1: A retail business based in New Jersey, with locations in both New Jersey and New York City, hired a new employee. The employee lives in New Jersey and will work primarily at the New Jersey location but may be asked to cover shifts in New York City when needed due to staffing shortages at those locations. The employer estimated that some months, the employee will work one to three six-to-eight-hour shifts in New York City but that their New York City hours will vary, and some months, the employee may not work in New York City at all. Under the amended rules, the employee would qualify as being employed for hire within the City of New York for ESSTA.
  • Example 2: ”An employee lives in Florida and works from home for a company based in Manhattan. The employee is required to attend daylong meetings at the Manhattan headquarters approximately twice a year. The employee is not ‘employed for hire within the City of New York.’”

Notice

Under the amended rules, an employer can require that employees provide notice of their need to use safe/sick time. The rules require an employer to have a written policy detailing its notice requirement. Moreover, the written policy must contain “reasonable procedures” for providing advance notice, which may include:

  • Calling a designated phone number where an employee can leave a message,
  • A uniform call-in procedure,
  • Sending an email to a designated email address,
  • Submitting a leave request in a scheduling software system, provided the employee has access to such system on non-work time and has been trained on and given written instructions on how to use the system,
  • Or using another reasonable and accessible means of communication.

Additionally, the rules differentiate between “foreseeable” and “unforeseeable” absences. An absence is foreseeable if an employee is aware of the need to use safe/sick time seven days or more before such use; otherwise, the absence is unforeseeable.

For foreseeable absences, an employee must provide up to seven days’ notice before using safe/sick time, as opposed to unforeseeable absences, which require an employee to provide notice “as soon as practicable.”

Reasonable Documentation

An employer requiring safe and sick time documentation must set forth this requirement in a written policy. The written policy should also contain the types of reasonable written documentation the employer will accept and instructions on how an employee can submit the documentation to the employer.

Additionally, an employer must reimburse an employee for any fees incurred in procuring documentation for the use of sick time from a licensed health care provider and reimburse an employee for all reasonable costs or expenses incurred to obtain documentation for safe time. It should be noted that documentation for the use of sick/safe time is not required for leave that lasts three or fewer consecutive work days.

Pay Statement

An employer must include the amount of safe/sick time accrued and used during the pay period and the remaining balance available for use in an employee’s pay statement. An employer may use an electronic system to comply with the accrual and balance requirements if:

(i) employees are electronically alerted each pay period that their accrual, use, and balance information is available for review;

(ii) the content is readily accessible by the employee outside of the workplace within the electronic system; and

(iii) the accrual, use, and balance information for any past pay period in the electronic system is readily accessible to employees outside the workplace.

Rate of Pay

An employer is required to pay an employee for paid safe/sick time “at the employee’s regular rate of pay at the time the paid safe/sick time is taken, provided that the rate of pay shall not be less than the highest applicable rate of pay to which the employee would be entitled” under New York State Labor Law, or any other applicable federal, state, or local law, rule, contract, or agreement.

Sale of Business

An employee’s use of safe/sick time shall not be affected by the sale of an employer’s business, transfers in corporate ownership, or changes in subcontracting relationships between corporate entities.

If an employee’s accrued safe/sick time is not properly transferred or an employee is prevented from using safe/sick time, both the original and successor employer can be held individually and jointly liable for said violations.

Accrual

An employer who elects to use the accrual method for computing an employee’s safe/sick time must account for all time the employee worked, ”regardless of whether time worked is less than a 30-hour increment.”

In instances where an employer is calculating an employee’s time who worked less than 30 hours, an employer “may round accrued safe/sick time to the nearest five minutes, or to the nearest one-tenth or quarter of an hour, provided that it will not result, over a period of time, in a failure to provide the proper accrual of safe/sick time to employees for all the time they have actually worked.”

Penalties

The amended rules provide for a “reasonable inference” that an employer is not in compliance with the ESSTA if an employer “fails to maintain or distribute a written safe/sick time policy, and fails to maintain adequate records of employees’ accrued safe/sick time use and balances.”

The relief granted for an employer’s violation of the ESSTA includes $500 per employee per calendar year the policy or practice was in effect and crediting the employee with the number of hours they should have accrued.

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