New York City Employers Must Update Their Safe and Sick Time Policies to Comply with the City’s Amended Regulations

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New York City has amended its regulations for the City’s Earned Safe and Sick Time Act (ESSTA). The amended regulations cover numerous aspects of the ESSTA and became effective on October 15, 2023. Some of the more significant changes that might impact employer policies and practices are noted below.

Employer Size and Coverage

Under the ESSTA employers with under 100 employees are required to provide up to 40 hours of paid sick and safe leave to employees each year. Employers with 100 or more employees must provide up to 56 hours of paid sick and safe leave yearly.

The regulations clarify that a determination of an employer’s size is based upon the number of employees nationwide, not just the number of employees who work in New York City. Also, the total number of employees is calculated based upon the highest number of employees employed at any point during the current calendar year.

The amendment also explains how employers need to handle a change in their headcount that changes whether they are above or below the 100-employee threshold. An employer that increases its headcount to 100 employees, must immediately, and prospectively, change its sick and safe time benefits to provide for 56 hours per year to its employees. However, and employer that drops below the 100-employee threshold cannot reduce its benefits until the next calendar year.

Hybrid Workers

Given the current prevalence of remote and hybrid work arrangements, the amended regulations specify that an employee whose primary work location is outside of New York City may be covered by the ESSTA “if they regularly perform, or are expected to regularly perform work in New York City.” However, the amended regulations also explain that an employee who only works in New York City one or two times over a calendar year is not subject to the ESSTA.

Employee Leave Notice and Documentation Requirements

Prior to the amendment, employers were permitted to require reasonable advanced notice of an employee’s need to use ESSTA leave. Under the amendment, however, employers that require advanced notice are required to specify the method of providing notice in its written policy.

Also, employers that require written documentation of an employee’s use of sick time, must reimburse the employee for any fees the employee’s health care provider charges for the documentation. In other words, if an employee’s doctor charges a fee to provide a doctor’s note, the employer must reimburse the employee for that cost. The employer’s written policy must specify that employees are entitled to reimbursement and explain how employees can submit documentation.

Reporting Leave Balances to Employees

Since 2020, the ESSTA has required employers to notify employees of the amount of sick and safe time accrued or used during a pay period and the employee’s total balance of accrued sick and safe leave. The revised regulations now require employers to also specify the total balance and available balance of sick and safe time. Because employers may cap the usage of sick and safe leave to the 40 or 56 hour yearly thresholds, some employees may have a total balance that is higher than their available balance. For example, an employee who carried over 4 hours of sick and safe time from prior year may have a total balance of 44 hours, but only have 40 hours available due to an annual cap on sick and safe leave. We expect that this may cause some confusion with employees who may not understand why their total and available balances differ.

New York City employers that have not done so, should immediately review their paid sick and safe leave policies to ensure compliance with the update regulations. Given the potential ambiguity as to when a hybrid or remote work may be entitled to ESSTA benefits, employers with such workers should consult with knowledge counsel.

If you have questions about your business’s sick leave or other policies, please schedule a complimentary consultation with us through our online scheduling system.

Information contained in this blog is provided for informational purposes and does not constitute legal advice or opinion. You should consult with an attorney regarding the specifics of your matter or legal issue