NYC Amends Earned Safe and Sick Time Act to Correspond to NY State’s New Sick Leave Law and Imposes Additional Notice and Other Requirements

On Sept. 28, 2020, Mayor Bill de Blasio signed into law amendments to the NYC Earned Safe and Sick Time Act (NYC ESSTA), which took effect on Sept. 30, 2020. These changes align the NYC ESSTA with New York State’s recently enacted paid sick leave law (NYS PSLL), which, as we reported here and here, requires all businesses that have five or more employees to provide job-protected paid sick leave in varying amounts depending on the total number of individuals employed. In addition, the amended NYC ESSTA imposes new requirements, including that employers must report on a pay statement or other document provided to the employee each pay period each employee’s total balance of accrued safe and sick leave as well as the amount of safe and sick leave accrued and used during that pay period.

The NYC ESSTA’s modifications include increasing the maximum amount of paid safe and sick leave employers with 100 or more employees must provide to 56 hours per year and increasing permitted carryover to 56 hours (up from 40 hours in each case). As under the NYS PSLL, the accrual of NYC ESSTA leave at the higher rate begins on Sept. 30, 2020, and employees may use any newly provided leave time starting Jan. 1, 2021. Additionally, under the NYC ESSTA, there is no longer any waiting period for use of accrued safe and sick time.

New York City employers should note that the amended NYC ESSTA imposes additional obligations on them, distinct from those in the NYS PSLL, including the following:

• As noted above, employers must report on each employee’s pay statements or in a separate writing provided to the employee each pay period the amount of safe and sick leave accrued and used during each pay period and the employee’s total balance of accrued leave. The NYC Department of Consumer Affairs has noted on its website that “employers that could not operationalize this requirement by September 30, 2020, but are working in good faith on implementation will have up to November 30, 2020, to ensure compliance without a penalty.”
• Employers must post an updated notice of rights under the NYC ESSTA and provide it to employees at hire and to current employees by Oct. 30, 2020. For information purposes, the now-outdated version of the notice of rights is located here. We anticipate that an updated version will be published in the near future.
• Employees no longer need to work at least 80 hours within New York City to be eligible for leave under the NYC ESSTA.
• If the employer requests verification for the leave (which it may do after three consecutive workdays of leave), it now must reimburse the employee for all reasonable costs or expenses incurred for the purpose of obtaining supporting documentation from a medical provider or other third party.

Employers should immediately update their sick time policies, protocols and tracking tools to comply with the new New York City and New York State laws. Employers in New York City must create and implement a method for reporting to employees each pay period their safe and sick time accrual and usage during the pay period and current balance of accrued time. Updated notices of rights must be issued to current employees by Oct. 30, 2020, and upon hire to new hires. In addition, Human Resources professionals must be knowledgeable about the requirements of the new law, and management must be educated as to the changes in the applicable leave policies.

We will continue to monitor developments pertaining to the law and provide updated information when the state and city issue additional guidance on each law’s requirements. For questions or concerns regarding this alert, please contact a member of Kramer Levin’s Employment Law Department.