New York City Department of Consumer and Worker Protection FAQ Clarifies Changes to City’s Employment Laws | Fox Rothschild LLP

Key Points

NYC Earned Safe and Sick Leave Act (ESSTA) Amendments Now in Effect: As of Feb. 22, 2026, all New York City employers must comply with significant changes to the ESSTA, including new requirements for employee notice distribution, pay stub disclosures of leave accrual and usage, and updated written leave policies that reflect expanded permissible uses such as public disasters, care for minor children and workplace violence.
DCWP FAQ Signals Broad Enforcement of NYC Sick Leave Law: The NYC Department of Consumer and Worker Protection’s updated FAQ interprets the ESSTA expansively, advising that protected time off may apply to situations not explicitly listed in the statute, including bereavement-related mental health conditions, extreme weather illnesses, and post-pregnancy recovery. Employers should exercise caution when denying leave requests.

Several changes to the New York City Earned Safe and Sick Leave Act (ESSTA) took effect on Feb. 22, 2026, impacting all New York City employers and businesses.

Concurrently, the New York City Department of Consumer and Worker Protection (DCWP) updated its Frequently Asked Questions (FAQ) page, setting forth its interpretation of the ESSTA amendments and providing guidance on how employers should comply. The FAQ describes steps employers must take now to ensure compliance with the ESSTA and suggests that the DCWP will take a broad interpretation of the ESSTA when enforcing the law.

For details on changes to the ESSTA, review our past alerts:

This alert examines the newly updated FAQ and its compliance implications.

Updated Notice, Recordkeeping and Policy Requirements for Employers

New Notice Form

DCWP has issued an updated version of the Notice of Employee Rights that employers must issue to all employees. Employers should immediately distribute a copy of this updated notice to all employees and update their workplace posters, onboarding paperwork and/or handbook to ensure that the new version of the notice is being provided to new employees. Signed copies or email receipts should be kept as proof that the updated notice was provided to employees.

Recordkeeping and Reporting Requirements

The FAQ also clarifies the law’s requirement to provide information to employees concerning the use and accrual of leave in each pay period. Employers must provide this information on an employee’s wage statement/pay stub or provide it otherwise by electronic means.

If providing the information on a pay statement, the FAQ states that pay statements must include all of the following:

The amount of protected time off[1] accrued during the pay period.
The amount of paid and unpaid protected time off used during the pay period.
The amount of remaining hours of unpaid protected time off (and paid protected time off if the employer frontloads such time) available for use in the calendar year.
The amount of accrued protected time off available for use in the calendar year.

If prenatal leave is used in the pay period, pay statements must also include both of the following:

The amount of paid prenatal leave taken during the pay period.
The total amount of paid prenatal leave remaining available for use in a 52-week period.

If information concerning accrued and used protected time off is not included on an employee’s pay statement, the employer must do all of the following:

Electronically alert employees each pay period to the availability of the required information.
Make time banks easily accessible in the electronic system for every pay period:

The amount of protected time off accrued during the pay period.
The amount of protected time off and/or paid prenatal leave taken during the pay period.
The total balance of accrued protected time off
The total balance of paid prenatal leave.
The amount of accrued protected time off available for use.
The balance of unpaid protected time off available for use.

Make the accrual, use and balance information for any past pay period easily accessible to the employee outside of the workplace.

Policy Requirements

Employers also face new requirements covering what they must include in their protected time off policies. Now, such policies must include the following:

Immediately available time: The amount of immediately available hours of protected time off (at least 32), a statement that this time is available for use at the beginning of employment and the beginning of each Calendar Year, and a statement regarding whether this time is paid or unpaid.
New permissible uses for leave:

To provide care for a minor child or care recipient.
To initiate, attend, or prepare for a legal proceeding for subsistence benefits or housing for the employee, the employee’s family member, or for a care recipient.
To follow the direction of a public official to remain indoors or avoid travel during a public disaster which prevents the employee from reporting to their work location.
When an employee or employee’s family member has been the victim of workplace violence.

The DCWP also emphasized that such policies should include the following, despite the fact that these requirements are not new:

A statement that the employer will not ask the employee to provide details about the reason for use of protected time off, including details about the medical condition or other situation that led the employee to use protected time off or paid prenatal leave.
A statement that any information the employer receives about the employee’s use of protected time off or paid prenatal leave will be kept confidential and not disclosed to anyone without the employee’s written permission or as required by law.

Unpaid Leave Requirements

Employers must provide all employees with 32 hours of unpaid leave that can be used for any reason allowed under the ESSTA immediately upon the effective date of the law, upon hire and at the beginning of every calendar year.

The FAQ clarifies that employers with more generous paid leave policies than required by the ESSTA will not be required to add a separate bank of unpaid leave in certain circumstances. If an employer’s policy already provides at least 72 leave hours (or 88 leave hours for large employers) and at least 32 hours of that leave is frontloaded, the employer would not need to provide an additional bank of unpaid leave. For example, an employer with fewer than 100 employees would ordinarily be required to provide 40 hours of paid safe and sick leave and 32 hours of immediately available unpaid leave. If its policy instead provides employees with at least 72 hours of paid leave that is immediately available for the employee to use, the employer would not need to provide an additional 32 hours of unpaid leave.

Safe and Sick Time – Public Disasters and Creative Uses of Leave

The amendments also expand the reasons for which employees can take leave time. As discussed in prior alerts, employees may now take unpaid leave time under the ESSTA for “public disasters.” The DCWP defines such events as fires, explosions, terrorist attacks and severe weather events (such as snowstorms or hurricanes) that have been declared a state of emergency or a public disaster by the president of the United States, the governor of New York State or the mayor of New York City.

The DCWP also takes the position in the FAQ that certain events not listed as qualifying events under the ESSTA may create situations where employees must be allowed to use protected time off. For example, the following may give rise to the availability of protected time off:

Weather Conditions that are not “public disasters.” Extreme heat or poor air quality are not “public disasters” covered by the ESSTA, but an illness due to such conditions would be covered, according to the DCWP.
Post-Pregnancy Leave. The DCWP also clarified that paid prenatal leave is not available following the birth of a child, but that an employee may use safe and sick leave for mental or physical illnesses, health conditions including childbirth or postpartum depression, and for preventative medical care. Employees may also use protected time off to care for both the baby and a family member who gave birth.
Bereavement. The ESSTA does not include bereavement as a basis for employees to use protected time off. However, under certain circumstances, leave under the ESSTA may be used following a death. Specifically, the FAQs state: “After a loss, people may experience anxiety or depression, which are mental health conditions under the Law. Employees may take protected time off due to their own anxiety or depression. An employee may also take protected time off to attend a funeral to care for a family member who needs care for a mental or physical health condition.” As such, employers should be cautious in denying employees the use of protected time off under the ESSTA for bereavement purposes.

Prenatal Leave

The FAQ also provides further clarity on the use of prenatal leave under the ESSTA. New York employers are required to provide employees with up to 20 hours of paid prenatal leave, in addition to protected time off, under the ESSTA and New York State law.

For details, see our prior alerts:

Prenatal leave specifically covers the following forms of health care during pregnancy or related to pregnancy: physical examinations, medical procedures, monitoring, testing, discussions with a health care provider, end of pregnancy care, and fertility treatment. Employers may not ask employees to specify the type of care received nor may they request any medical records.

Further, employers cannot mandate which type of leave should be used. However, if an employee does not specify the leave type they wish to use but discloses that the leave is for a pregnancy-related reason, the employer should pull from the paid prenatal leave bank.

Employers Subject to a Collective Bargaining Agreement

Employers and unions representing employees subject to a collective bargaining agreement (CBA) can waive the protections of the ESSTA if the CBA expressly waives the protections of the ESSTA and provides a “comparable benefit.” DCWP has clarified what it considers to be a “comparable benefit” under the new the ESSTA amendments. To qualify as a comparable benefit, the CBA must provide all of the following:

40 or 56 hours of paid time off.
Additional 32 hours immediately available for use for time off, paid or unpaid.
Additional 20 hours of paid prenatal leave.
Use of time off for all protected reasons under the law, including family care.
No discipline (including points systems) for using protected time off.

The comparable benefit requirement does not apply to construction and grocery industry employers covered by a CBA. In their case, the CBA need only expressly waive the law’s provisions for it not to apply.

Employer Actions

Employers should immediately review their sick leave policies and onboarding paperwork to ensure that they comply the new requirements set forth in the FAQ. Employers should also send the new Notice of Employee Rights to all current employees and ensure that all new employees are provided with the updated Notice.

Employers with collective bargaining agreements that include an the ESSTA waiver should review their current leave policies to ensure that they provide “comparable benefits” under the amendments to the law and, if not, open discussions with the union concerning necessary changes to the policies.

[1] The DCWP has introduced the term, “protected time,” to replace “safe and sick leave”. However, the term “safe and sick leave” may still be used in employer policies.

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