NYC Earned Safe and Sick Time Act Amended to Align with State’s Paid Sick Leave Law
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Last Updated: 10/26/2020
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As cities and states continue trying to figure out how to implement mandatory paid sick leave laws, New York City once again amended its law — making it nearly a handful of times the Earned Safe and Sick Time Act (ESSTA) has changed since the law originally took effect in April 2014. The latest amendment, effective Sept. 30, 2020, aligned the city’s law with the New York State Sick Leave (NYSSL) law while also creating additional obligations for businesses. However, some provisions of the amended ESSTA go into effect January 2021.
Among the changes in the amended ESSTA:
- time accrual and the waiting period to use accrued time
- the eligibility of domestic workers
- reporting requirements of employers
- notification posting
- expanded retaliation definition
Updates to the NYC Earned Safe and Sick Time Act
Accruing Hours
The most notable alignment is how time is accrued and the businesses that are covered under the law. Employers with five or more employees who work more than 80 hours per calendar year in New York City must provide paid safe and sick leave to employees under the NYC ESSTA. Smaller employers must provide unpaid safe and sick leave. Eligible employees accrue safe and sick leave at a rate of one hour of leave for every 30 hours worked beginning on their first day of employment.
| Employer Size | Leave Accrual |
|---|---|
| 4 or fewer employees and an employer net income of less than $1 million | Up to 40 hours of unpaid safe and sick leave |
| 4 or fewer employees and an employer net income of more than $1 million | Up to 40 hours of paid safe and sick leave |
| 11 to 99 employees (regardless of employer’s net income) | Up to 40 hours of paid safe and sick leave |
| 100 or more employees (regardless of employer’s net income) | Up to 56 hours of paid safe and sick leave |
The amendments to the NYC ESSTA also eliminate the waiting period for newly hired employees to use accrued time. Now, employees may immediately begin using ESSTA leave.
Domestic workers
Prior to the most recent amendments to the NYC ESSTA, domestic workers accrued fewer earned hours and only after a year of service with their employer. That version of the law also provided clarification on the definition of domestic workers, which did not include “any person employed by an agency whenever such person provides services as an employee of such agency regardless of whether such person is jointly employed by an individual or private household in the provision of such services.”
The amended version of NYC ESSTA eliminates the delay and allows domestic workers to accrue sick time similar to any other employee.
Changes to the NYC Earned Safe and Sick Time Act
Employer pay statement reporting requirement
The amended NYC ESSTA requires New York City employers to record — on a pay stub or through another form of written documentation — an employee’s total balance of accrued safe/sick time as well as how much safe or sick time an employee has accrued and/or used during that specific pay period. Enforcement will not begin until Nov. 30, 2020, according to the city, if employers demonstrate good faith in trying to implement this reporting. For more information on this change, visit the Department of Consumer and Worker Protection website.
Prior to this amendment, employers had no reporting requirements for accrued safe and sick leave time.
Notification of Employee Rights
Prior to the most recent amendments to the NYC ESSTA, employers had the option to post the Notice of Employee Rights but were not required to post it. Employers had been required only to distribute it. The amendments to the ESSTA require employers to post such notification at the workplace in a conspicuous place that employees have access to, as well as present the notification to employees on their first day of work, within 14 days of the effective date of any change in policy, and upon request by an employee. Distribution of the company policy may be satisfied through hard copy or electronic transmission (e.g., email). The notification is available in more than 25 languages.
Employers also have 30 days from enactment of the new law to provide the Notification of Employee Rights to employees already employed prior to the passage of this amended law.
Retaliation
This provision of the NYC ESSTA stipulates the kind of adverse actions from an employer that could lead to the filing of a retaliation claim by an employee. Adverse actions include, but are not limited to, disciplinary action, demotion, harassment, discrimination, and suspension related to the taking of earned safe and sick leave time. This broadly written provision indicates the use of direct or indirect evidence can be used to establish a connection between an adverse action and the infringement on protected rights under the NYC ESSTA.
Westchester County Earned Sick Leave Law
It is important for businesses around New York City to note that some local jurisdictions may have their own sick leave laws. For example, Westchester County implemented an Earned Sick Leave Law in July 2019, covering employees who work in Westchester County for more than 80 hours a year. The Westchester Earned Sick Leave Law states that covered employees have the right to use sick leave for the care and treatment of themselves or a family member.
Covered employers must give covered employees a copy of the Earned Sick Leave law and written notice of their rights to sick leave. Sample notices, FAQs, and an office poster are available on the Westchester County Earned Sick Leave webpage.
Looking forward
With the additional complexities created by the amended NYC ESSTA, business owners might need help or more information. Paychex recommends speaking with one of our HR professionals who can provide insight. Solutions such as Paychex Flex® Time and Time Off Accrual also offer functionality to help clients meet the new ESSTA wage statement requirements.
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