promulgated earlier this
\nyear<\/a> requiring paid prenatal leave. Providing some relief to
\nemployers, the amendments also eliminate employers’ obligation
\nto provide temporary schedule changes under the Temporary Schedule
\nChange Act (TSCA). As 2025 winds down and employers start updating
\nemployee handbooks for 2026, these changes, which take effect Feb.
\n22, 2026, require immediate attention to ensure compliance.<\/p>\nAdditional Unpaid Leave Entitlement<\/p>\n
Currently, New York City employers must provide up to 40 or 56
\nhours of paid safe and sick leave under ESSTA, depending on the
\nemployer’s size and income. The recent amendments to ESSTA do
\nnot change that. However, they do impose a new obligation on
\nemployers. Now, all employers, regardless of size, must provide all
\nemployees with a separate bank of 32 hours of unpaid safe
\nand sick leave. (Yes, this is in addition to the 40 or 56 hours of
\npaidsafe and sick leave and the 20 hours of prenatal leave
\nalready required!) As set forth below, employees are now entitled
\nto three different banks of leave, which must be kept \u2013 and
\ntracked \u2013 separately:<\/p>\n
\n
\n
\nType of Leave
\nHours Available
\n
\n
\n
\n
\n
\nPaid safe and sick leave
\n56 hours\/year for employers with
\n100-plus employees<\/p>\n
40 hours\/year for employers with fewer than 100 employees
\n(for employers with four or fewer employees and net income
\nless than $1 million, this time can be unpaid)<\/p>\n
\n
\n
\n
\nPaid prenatal leave
\n20 hours\/52-week period
\n
\n
\n
\nUnpaid safe and sick leave
\n32 hours\/year
\n
\n
<\/p>\n
The new unpaid safe and sick leave of 32 hours must be made
\nimmediately available to employees at the time of hire and must
\nalso be made available to all employees on the first day of each
\ncalendar year. Although employers cannot impose a waiting period on
\nusage of the unpaid leave, they may set a minimum usage increment
\nof up to four hours per day (just like with paid safe and sick
\nleave).<\/p>\n
If an employee requests time off for an ESSTA-covered reason,
\nemployers must apply available paid leave before unpaid leave,
\nunless the employee asks to use unpaid leave first. Like with paid
\nleave, employers must include, on pay stubs or other documentation
\nprovided to employees each pay period, the amount of unpaid safe
\nand sick time used and available to the employee. However, unlike
\npaid safe and sick leave, employers are not required to carry over
\nunused unpaid leave from year to year.<\/p>\n
Expanded Permissible Uses<\/p>\n
In addition to expanding the amount of leave available to NYC
\nemployees, the amendments expand the reasons employees may use such
\nleave. When the amendments go into effect, employees may use safe
\nand sick leave for the following reasons:<\/p>\n
\nCaregiving: Employees who qualify as
\ncaregivers may use available leave to care for a minor child or
\n“care recipient.” A caregiver is “a person who
\nprovides direct and ongoing care for a minor child or a care
\nrecipient,” and a care recipient is “a person with a
\ndisability, including a temporary disability, who (i) is the
\ncaregiver’s family member or resides in the caregiver’s
\nhousehold and (ii) relies on the caregiver for medical care or to
\nmeet the needs of daily living.”
\n
\nSubsistence benefits and housing: Employees
\nmay use their leave “to initiate, attend or prepare for a
\nlegal proceeding or hearing related to subsistence benefits or
\nhousing to which the employee, the employee’s family member, or
\nthe employee’s care recipient is a party, or to take actions
\nnecessary to apply for, maintain, or restore subsistence benefits
\nor shelter for the employee or their family member or care
\nrecipient.”
\n
\nWorkplace violence: An employee may take leave
\nif the employee or their family member has been a victim of
\nworkplace violence, which is defined as “any act or threat of
\nviolence against an employee that occurs in a place of
\nemployment.”
\n
\nPublic disasters: Employees may use safe and
\nsick time if a public disaster (as defined by ESSTA) results in (i)
\nthe closure of the employee’s workplace, (ii) a directive from
\npublic officials to remain indoors or avoid travel, or (iii) a need
\nto care for a child whose school or child care provider has closed
\nor restricted in-person operations.
<\/p>\n
Narrowing of the Temporary Schedule Change Act<\/p>\n
While the ESSTA amendments giveth, they also taketh away.
\nStarting Feb. 22, employers are no longer required to grant
\nemployees’ temporary schedule change requests.<\/p>\n
As of now, under the TSCA, employers are required to grant
\nemployees two temporary schedule changes per year for
\n“personal events” such as caregiving for a minor child,
\nattending a legal proceeding or other reasons permitted under
\nESSTA. Going forward, however, employees may ask for a temporary
\nschedule change and employers are prohibited from retaliating
\nagainst the employee for making the request, but employers are not
\nrequired to grant the request. Now, employers must only
\nrespond to the employee \u2013 and either grant or deny the
\nrequest or propose an alternative \u2013 “as soon as
\npracticable.”<\/p>\n
Next Steps for Employers<\/p>\n
Although the amendments do not go into effect for a few months,
\nemployers should start reviewing and revising current sick leave
\nand temporary schedule change policies and practices now to ensure
\ncompliance with the amendments. A great time to do this is with
\nother employee handbook updates, which often take place around now.
\nEmployers should also make sure that managers and human resources
\npersonnel are aware of the expanded permissible uses for sick leave
\nand the changes to the TSCA so they can respond appropriately when
\nemployees make leave or schedule change requests.<\/p>\n
The content of this article is intended to provide a general
\nguide to the subject matter. Specialist advice should be sought
\nabout your specific circumstances.<\/p>\n","protected":false},"excerpt":{"rendered":"BakerHostetler are most popular:
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