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NYC issues proposed rules to implement the recent New York City Earned Safe and Sick Time Act amendments, clarifying employer compliance obligations.
United States
Employment and HR
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Key Takeaways
NYC issues proposed rules to implement the recent New York City
Earned Safe and Sick Time Act amendments, clarifying employer
compliance obligations.
Employers must adjust policies, pay statements, and
recordkeeping to reflect new “protected time off”
requirements, including unpaid leave and prenatal leave.
Unlimited PTO policies do not exempt
employers from ESSTA tracking, notice, and minimum leave
mandates.
The New York City Department of Consumer and Worker Protection
(DCWP), the agency responsible for enforcing the New York City
Earned Safe and Sick Time Act (ESSTA), has released
proposed rules in advance of the February 22 effective
date for recent amendments to ESSTA. The proposed rules will bring
the DCWP’s rules into alignment with the recent ESSTA
amendments and provide guidance to employers on ESSTA compliance
obligations.
ESSTA Amendments
As detailed in our
prior alert,among other things,the ESSTA amendments, which go
into effect on February 22:
Require New York City employers to provide employees with 32
hours of unpaid sick leave on an annual basis.
Adopt the New York State paid prenatal leave obligations.
Expand the reasons for which an employee may use paid safe and
sick leave.
Eliminate employer obligations to provide temporary schedule
changes under the New York City Temporary Schedule Change Act.
Proposed DCWP Rules
With the effective date of the ESSTA amendments fast
approaching, the DCWP has issued proposed rules for their
implementation. Specifically, the proposed rules:
Replace the term “safe/sick time” with
“protected time off” (although employers can still use
“safe/sick time” in their policies).
Provide that employer policies must include details about the
amount of unpaid protected time off provided to employees and
explain that this unpaid time off is available immediately and on
the first calendar day of every year.
Explain that employee pay statements or other pay documentation
must inform employees of the amount of protected time off used and
accrued during each pay period, differentiate between paid and
unpaid protected time off, and include an employee’s total
balance of paid and unpaid leave available for use.
State that an employer may fulfill its obligation to provide 32
hours of unpaid protected time off by providing an equivalent
amount of paid protected time off so long as this additional paid
time off (PTO) is available immediately on an employee’s
first day of employment and on the first day of each calendar year
thereafter.
As the proposed rules are open to public comment through March
2, they are not currently effective and may be modified before
being approved.
Guidance for Employers with Unlimited Sick Leave Policies
Many employers that rely on unlimited PTO or unlimited sick
leave programs have been asking how the ESSTA amendments (and now
proposed rules) affect their existing policies and whether they
need to make further changes.
Although the proposed rules clarify that employers may fulfill
their obligation to provide 32 hours of unpaid protected time off
by providing an equivalent amount of paid protected time off, they
also suggest that if an employer provides an equivalent (or
greater) amount of paid protected time off, the employer is not
exempt from ESSTA’s strict leave‑tracking, pay stub and
recordkeeping obligations, and employers must still make such paid
protected time off available immediately upon hire and on Jan. 1 of
each year.
Thus, even under an unlimited PTO policy, an employer must:
Meet or exceed ESSTA minimums (e.g., 40 or 56 hours of paid
ESSTA leave, depending on employer size, and 32 hours of
front‑loaded unpaid ESSTA leave). Notably, the proposed rules
do not discuss whether an unlimited PTO policy
can satisfy ESSTA’s paid prenatal leave requirement. Unless
and until the DCWP addresses this leave requirement, employers
should still provide a separate paid prenatal leave bank to ensure
compliance with the law.
Track and display balances for protected time off. Because the
proposed rules are silent on whether an employer is allowed to
substitute an “unlimited” balance in place of showing
the ESSTA‑mandated numbers, even if employees
will never exhaust their PTO under an unlimited
PTO policy, the city requires that the employee be notified of how
much statutory ESSTA leave remains.
Maintain protected time off records for three years.
Maintain a written, ESSTA-compliant policy, even if using an
unlimited PTO policy.
Employers should also be aware that use of unlimited PTO does
not change ESSTA’s:
Limits on documentation requests to employees confirming leave
is for an ESSTA-covered reason (only after more than three
consecutive days out of work).
Prohibition on requiring advance notice from employees for
unforeseeable leave.
Recommended Next Steps for Employers
To prepare for the new ESSTA requirements on February 22 and
likely implementation of the proposed rules, employers should:
Update sick/safe leave and PTO policies to ensure they
expressly incorporate the expanded qualifying reasons,
front‑loading obligations and prenatal leave
entitlements.
Ensure that payroll and human resources (HR) information
systems display separate leave banks and maintain three years of
records.
Ensure that all supervisors and HR personnel understand the new
qualifying reasons, usage rights and anti‑retaliation
protections in the ESSTA amendments.
Conduct a compliance audit to ensure that current PTO and leave
policies – especially unlimited PTO plans – explicitly
satisfy ESSTA minimums.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.