Nov 04, 2020 General Employment Issues

New York City Amends its Earned Sick and Safe Time Act to Align with New York State’s Paid Sick Leave Law

Update: Employers Must Comply With Notice Requirements Regarding Amended New York City Earned Sick and Safe Time Act by January 1, 2021

The New York City Department of Consumer Affairs (DCA) has published a revised notice of employee rights to reflect the amendments made to the New York City Earned Sick and Safe Time Act (NYC ESSTA), available here.

Employers must post this updated notice of rights in the workplace by January 1, 2021 in an area that is visible and accessible to employees. Employers with 100 or more employees must also provide this notice to their current employees by January 1, 2021.

Additionally, as of January 1, 2021, employers must provide this new notice to employees when they begin employment.

This notice must be given to employees in English and, if available on the DCA website, the employee’s primary language. The website currently has English and Spanish versions of the new notice. Additional information regarding compliance with this notice requirement is provided in FAQs published on the DCA’s website, which are available here.

October 2, 2020

As previously reported here, employees began accruing sick leave under New York State’s new Paid Sick Leave Law (“NYS PSLL”), § 196-b of the New York Labor Law, on September 30, 2020. 

On September 28, 2020, New York City Mayor de Blasio signed into law amendments to the Earned Sick and Safe Time Act (“NYC ESSTA”) (see Int 2032-2020) to align the NYC ESSTA with the requirements of the NYS PSLL. The amendments to the NYC ESSTA also add new requirements. Both the NYS PSLL and the amendments to the NYC ESSTA became effective on September 30, 2020, but the additional leave provided by both laws cannot be used until January 1, 2021.

Requirements of Both NYC and NYS Laws

As with the NYS PSLL, the amendments to the NYC ESSTA require employers to provide sick leave as follows:

Employer Size

Number of Sick Leave Days Per Year

Employers with four (4) or fewer employees and under $1 million in net income the previous tax year

Up to forty (40) hours of unpaid sick leave

Employers with four (4) or fewer employees and over $1 million in net income the previous tax year

New: Up to forty (40) hours of paid sick leave

Employers with between five (5) and ninety-nine (99) employees

Up to forty (40) hours of paid sick leave

Employers with one hundred (100) or more employees

New: Up to fifty-six (56) hours of paid sick leave

.

The sick/safe time must be paid at the employee’s regular rate of pay at the time the leave is taken (not including tips or other allowances). 

What Has Changed for NYC Employers?

As previously reported here, employers in NYC must comply with both the NYS and NYC laws, which means that such employers must amend their current policies to reflect the following:

  • Increased Leave for Large Employers: Effective January 1, 2021, employees working for employers with one hundred (100) or more employees must be allowed to accrue up to (56) hours of paid sick/safe leave per year, an increase from forty (40) hours required prior to the amendments to the NYC ESSTA.

Under this provision, employees begin to accrue the additional sixteen (16) hours of sick/safe leave on September 30, 2020 but cannot use those additional hours until January 1, 2021. Employees in NYC can continue to use up to forty (40) hours of sick/safe leave as it is accrued.

  • No Waiting Time to Use Leave: Effective September 30, 2020, all employees may use sick/safe leave as it is accrued. Prior to the amendments, employers could require newly hired employees to work for 120 days before using any accrued leave. Employers should amend their policies to eliminate any waiting time for new employees.
  • Elimination of Eligibility Requirement: The requirement that an employee must work in New York City for more than eighty (80) hours in a calendar year to be eligible for sick/safe leave has been eliminated. Employers should amend their policies to eliminate any such eligibility requirement.
  • Reimbursement for Medical Documentation: Effective September 30, 2020, if an employer requires an employee to provide medical documentation for taking more than three (3) consecutive sick days, the employer must reimburse the employee for all reasonable costs incurred to obtain such documentation. Employers should amend their policies to notify employees of their eligibility for reimbursement.
  • Notice of Leave Balance Required: Employers must include the amount of safe/sick time accrued and used by an employee, along with the employee’s total leave balance, on the employee’s pay statement (or other written documentation) each pay period. Employers should amend their pay statements to include this information. Employers who use a payroll company should make sure this information is included in pay statements or separately notify employees about their leave balance in writing each pay period.
  • Defining “Adverse Action”: Employers are already prohibited from taking an “adverse action” against employees in retaliation for their attempt to exercise their rights under the NYC ESSTA. The amendments expand upon the definition of “adverse action” and provide an extensive list of examples of actions that are considered to be adverse, such as discharge, discipline, harassment, maintaining a policy that can result in disciplinary action for using protected leave, and actions “related to perceived immigration status or work authorization.”
  • Enforcement and Penalties: Even prior to the amendments, employees could file complaints with the New York City Department of Consumer Affairs and Worker Protection (“DCWP”). While there is still no private right of action under the NYC ESSTA, the NYC Corporation Counsel may now conduct investigations and initiate civil lawsuits. A civil penalty, to be paid to NYC, may be imposed of up to $15,000 for violations. In addition, individual employees may be awarded up to $500 if they are affected by an employer’s policy or practice of not providing earned sick/safe leave.
  • Penalties Imposed on a Per Employee Basis: The amendments make it clear that the existing penalties the DCWP may impose for certain violations of the NYC ESSTA shall be imposed on a per-employee basis. These violations include failing to compensate employees for accrued time, forcing employees to find replacements when taking accrued time or later make up their time, and retaliating against employees for exercising their rights under the law.

Collective Bargaining Agreements

Notably, the amendments do not affect the exception in the NYC ESSTA for collective bargaining agreements, which states that the provisions of the law do not apply to employees covered by a valid collective bargaining agreement if:

  • the provisions of the NYC ESSTA are expressly waived in the agreement; and
  • the collective bargaining agreement provides for a comparable benefit in the form of leave, compensation, or other employee benefits.

Future Guidance

As of the date of this article, the New York State Department of Labor has not issued regulations or Frequently Asked Questions (“FAQs”) to provide further guidance on the NYS PSLL.

The NYC DWCP has summarized the amendments to the NYC ESSTA on its website, available here, and states that it is in the process of updating agency materials, which include a law/rules packet, and FAQs.

We will provide additional information as it becomes available.

Please feel free to reach out to any of our attorneys if you have any questions or would like our assistance in updating your policies to comply with the new legal amendments.

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