In New York City, employees were granted more access to sick leave due to new rules adopted by the New York City Department of Consumer and Worker Protection (“DCWP”) amending New York City’s pre-existing Earned Safe and Sick Time Act (“ESSTA”). These rules took effect on the 15th of October and they expand leave availability when employees need time away from work to take care of family members or need access to safety measures such as legal assistance due to stalking, domestic violence or sexual harassment.
The amount of ESSTA leave available to an employee is dependent upon the size of the employer:
– Up to 56 hours of paid leave each calendar year, if the employer has 100 or more employees.
– Up to 40 hours of paid leave each calendar year, if the employer has 5-99 employees.
– Up to 40 hours of paid leave each calendar year, if the employer has 1-4 employees and has net income of $1 million or more.
– Up to 40 hours of unpaid leave each calendar year, if the employer has 1-4 employees and has net income of less than $1 million.
– Up to 56 hours of paid leave if the employer has 100 or more domestic workers.
– Up to 40 hours of paid leave if the employer has 1-99 domestic workers.
Employers should understand that even if their headcount decreases over the course of a calendar year, they cannot decrease the number of hours their employees are entitled to immediately. Instead, the employer must continue to grant employees the higher level of hours until the following calendar year.
Further, if an employer’s headcount increases during the course of the year, the employer is responsible for providing the higher number of hours from the date of the increase until the end of the year.
The new rules also modify when employees are eligible for ESSTA leave. There is no longer a waiting period for eligibility. Instead, employees begin accruing ESSTA leave immediately upon commencement of employment.
Conveniently for employers, the new rules specifically address how to handle ESSTA leave for remote work employees. Employees who regularly perform work in New York City can accrue ESSTA hours but only for work that is performed in New York City. Employees who do not regularly perform work in New York City cannot accrue ESSTA hours despite having to report to work occasionally in New York City.
Employers should also take note of the following requirements. Paystubs must report accrual and use of ESSTA leave. Employers can require an employee to provide reasonable notice prior to using ESSTA hours. Employers can request written documentation when an employee uses three or more consecutive days of ESSTA leave.
If an employer sells its business both the old and new employer are responsible for transferring accrual information.
Any non-compliance with the law and its new rules can result in penalties.
If you are an employer impacted by any of the above changes, be sure to consult with your legal counsel and take steps to make sure your company practices and policies are in compliance.
More information can be found at DCWP – Workers – Worker Rights – Paid Safe and Sick Leave (nyc.gov)