Key Takeaways

• New York City has adopted amended rules, which just became effective this week and which codify the 2020 amendments to the New York City Earned Safe and Sick Time Act (ESSTA) and provide clarification and guidance in areas employers often have questions about, including employee eligibility, employer size, notice and documentation requirements, and accruals.
• The amended rules also clarify employers’ responsibility to report accrual, usage and balance information to employees on a paystub or accessible electronic system.

The New York City Department of Consumer and Worker Protection adopted new amended rules to the ESSTA. The amended rules, which just went into effect on Oct. 15, essentially codify the 2020 statutory amendments to the ESSTA that were implemented to align with New York State’s Paid Sick Leave Law requirements. The amended rules also provide clarification and guidance for compliance, and address various topics such as calculating employer size, employee eligibility, documentation standards, notice requirements and accrual methods. Below is a brief overview of these parts of the amended rules.

Who Is Covered by the Law

The amended rules explicitly state that an employee who performs work only while physically located outside New York City is not “employed for hire within the City of New York” and is, therefore, not entitled to accrue sick leave. This includes employees who are remote employees located outside New York City, even if their employer is based in New York City.

However, an employee with a primary work location outside New York City may be covered by the ESSTA “if they regularly perform, or are expected to regularly perform, work in New York City” during a calendar year. The amended rules provide the following examples of employees who would be covered by the ESSTA even though their primary work location is outside New York City:

1. A retail worker based at an employer’s New Jersey location will be covered by the ESSTA if they are asked to cover “one to three six[-] to eight-hour shifts in New York City” when needed due to staffing shortages, even if in some months the employee may not work in New York City at all. This is because the employer expects the employee to regularly perform work in New York City, despite the irregular scheduling of that work.
2. An employee whose normal base of operations is in upstate New York but who works at a construction site in New York City for a fixed-term, eight-week project will be covered by the ESSTA while working in New York City, even though their normal base of operations is outside New York City.

To the extent that these employees may be covered by the ESSTA, the amended rules clarify that hours worked only within New York City count as “hours worked” for the purposes of New York City safe and sick time accrual and usage.

In contrast, employees who do de minimis work in New York City over the course of the year are not eligible for safe and sick leave. For example, an employee working remotely in another state who reports to daylong meetings at her employer’s New York City headquarters approximately twice per year is not considered “employed for hire within the City of New York” and is therefore not eligible to accrue safe and sick leave. Likewise, an employee visiting New York City for a one-day project for a customer, where the employee is based outside New York City and is not expected to return to New York City in the calendar year, is also not eligible to accrue safe and sick leave under the ESSTA.

Employer Size

Under the ESSTA, private employers with 100 or more employees are required to provide up to 56 hours of paid safe and sick time annually, while employers with 99 or fewer employees must provide up to 40 hours of safe and sick time on an annual basis. The amended rules clarify that employee headcounts include allfull-time and part-time employees nationwide — not just employees based in New York City — and employers must include any employees on leaves of absence or suspension as well as any employees who are jointly employed by another employer.

A key consideration for employers is that the employee headcount must be based on the highest total number of employees employed by the employer at any point during the calendar year. Thus, if an employer surpasses the 100-employee threshold in the middle of the calendar year, the employer must immediately provide the additional benefits (the ability to accrue up to 56 hours) for the duration of the year. But employers shifting to a lower headcount midyear cannot decrease employee sick time until the following calendar year. For example, an employer that increases its employee headcount above 99 employees in August must allow its employees to accrue and use an additional 16 hours of safe and sick time for the remainder of the calendar year, even its employees who have already used 40 hours before August.

Employee Notice of Use of Leave and Documentation Requirements

Under ESSTA, employers can require reasonable advance notice of an employee’s need to use safe and sick time. But the amended rules stress that this requirement, and the method(s) of providing such notice, must be included in an employer’s written policy. The amended rules also differentiate between when notice may be required for an “unforeseeable” absence and for a “foreseeable” absence: “as soon as practicable” for an unforeseeable absence and up to seven days in advance of the absence for a foreseeable absence. However, an absence may be considered “foreseeable” only if the employee is aware of the need to use safe and sick time seven days or more before the use. If the employee is not aware of the need for use at least seven days in advance, the absence is “unforeseeable” and the employee is only required to provide notice as soon as practicable.

Employers can require “reasonable methods” of providing advance notice, which may include sending an email to a designated email address or submitting a leave request in a scheduling software system. However, the employee must have access to any such system on nonwork time and must be trained and given written instructions on how to use the system.

In conformance with the 2020 amendments to the ESSTA, the amended rules provide that employers requiring written documentation of an employee’s need for sick time must reimburse employees for all fees charged by a licensed health care provider, and the employer must reimburse the employee for all reasonable costs or expenses incurred in obtaining documentation for safe time.

Employers requiring written documentation for safe and sick time use must include the following information in a written policy: (1) a statement of the requirement, (2) the types of written documentation the employer will accept, and (3) instructions on how employees can submit the documentation to the employer.

Notifying Employees of Available Leave and Leave Usage

To conform with the 2020 amendments to the ESSTA, the amended rules also require that employers show employees “the amount of safe/sick time accrued and used during the pay period, the employee’s total balance of accrued safe/sick time, and the amount of accrued safe/sick time available for use by the employee.” Employers can comply with this requirement by including the necessary information on a pay statement or other form of written documentation provided to the employee each pay period, and the amended rules clarify that this information must specify both the total balance and the amount of time available for use if those two values differ.

Employers who use an electronic system to issue pay statements or other documentation related to safe and sick time must: (1) electronically alert the employee each pay period to the availability of the required information; (2) make the required content readily accessible by the employee outside the workplace within the electronic system; and (3) maintain accrual, use and balance information for any past pay period in the electronic system so that it is readily accessible to the employee outside the workplace.

Accrual

The amended rules note that accrual of safe and sick time must account for “all time worked,” even where accrual of time may be less than 30 hours per week. Thus, where employees work fewer than 30 hours per week, employers must allow for fractional safe and sick time accruals. Employers may round accrued safe and sick time to the nearest five minutes, or to the nearest one-tenth or quarter of an hour, provided that it will not result, over a period of time, in a failure to provide the proper accrual of safe and sick time to employees for all the time they have actually worked.

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To ensure compliance with the amended rules, if they have not already done so, employers with employees working within the City of New York (even if only remotely) should be sure to train supervisory employees and human resources personnel on the ESSTA requirements and ensure that their payroll reflects the safe and sick time reporting obligations. If you have recently updated your employee handbook, your New York paid sick leave policy likely conforms to the amended rules already, since many of the amended rules track the ESSTA changes in 2020 as well as New York State’s Paid Sick Leave Law. However, it is advisable that you have legal counsel review your sick leave policy, just to be sure. 

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