What Employers Need to Know About Amendments to New York City's Earned Safe and Sick Time Act

On September 28, 2020, New York City Mayor Bill de Blasio signed into law amendments to the New York City Earned Safe and Sick Time Act (the "ESSTA"). The purpose of the amendments is to align the ESSTA with New York State's new sick leave law (the "NYSSLL"). In some instances, the ESSTA imposes greater requirements than the NYSSLL on NYC employers. Both the ESSTA amendments and the NYSSLL went into effect on September 30, 2020.

The amount of safe/sick time employees are eligible to accrue under the ESSTA (at the rate of at least 1 hour of safe/sick time for every 30 hours worked), and whether it is paid or unpaid, is as follows:

  • Employers with 4 or fewer employees and a net income of less than $1 million in the previous tax year must provide employees with at least 40 hours of unpaid safe/sick time per calendar year.
  • Employers with 4 or fewer employees and a net income of greater than $1 million in the previous tax year, employers with one or more domestic workers, and employers with between 5 and 99 employees must provide employees with at least 40 hours of paid safe/sick time per calendar year.
  • Employers with 100 or more employees must provide employees with at least 56 hours of paid safe/sick time per calendar year.

Under the amendments to the ESSTA, employees do not need to work more than 80 hours in a calendar year in NYC to be eligible to accrue safe/sick time. Further, the amendments have eliminated the ESSTA's 120-day waiting period for new hires to begin using accrued safe/sick time. Beginning January 1, 2021, employees may use paid safe/sick time as it is accrued.

Employers must note the amount of safe/sick time accrued and used during a pay period and the employee's total balance of accrued safe/sick time on the employee's pay stub or in some other written form provided to the employee each pay period.

If an employer requires an employee to produce documentation substantiating the employee's absence of more than three consecutive work days for sick or safe time, and the employee incurs a fee or expense for obtaining such documentation (such as from a healthcare provider), the employer must reimburse the employee for the fee.

Employers must provide employees with written notice of employees' rights under ESSTA at the commencement of employment and post notice of those rights in an area accessible by employees in their place of business.

The amendments provide that it is unlawful to (i) interfere with any investigation, proceeding or hearing pursuant to the ESSTA or (ii) take any "adverse action" against an employee for exercising their rights under the ESSTA. Such "adverse actions" include but are not limited to "threats, intimidation, discipline, discharge, demotion, suspension, harassment, discrimination, reduction in hours or pay, informing another employer of an employee's exercise of rights under [ESSTA], blacklisting, and maintenance or application of an absence control policy that counts protected leave for safe/sick time as an absence that may lead to or result in an adverse action" and any actions related to perceived immigration status or work authorization.

The ESSTA amendments also increase the penalties that may be assessed against employers for violations of the law and grant authority to the NYC Corporation Counsel (or persons designated by the Corporation Counsel) to, among other things, bring civil actions against employers for noncompliance with ESSTA and initiate investigations to ascertain any facts necessary to bring civil actions.

For further information regarding recent changes to ESSTA and how your organization must comply with the law, please contact Laura L. Spring, Esq. at CCBLaw.