On September 28, 2020, New York City Mayor Bill de Blasio signed into law a bill (Intro. 2032-A (Cohen)) amending the New York City Earned Safe and Sick Time Act (ESSTA) to align it with the New York State Sick Leave Law (NYSSLL), which went into effect on September 30, 2020. For more information about the NYSSLL, please refer to our client alert. The effective date of the amended ESSTA law is also September 30, but some employers can require that their employees refrain from using any additional paid safe or sick leave until on or after January 1, 2021

Most important, the law amends the amount of sick and safe leave that employers must provide to employees in order to be consistent with the requirements of the NYSSLL. This means that:

• NYC employers with four or fewer employees and a net income of less than $1 million in the prior tax year would be required to provide each employee with up to 40 hours of unpaid sick and safe leave per year;
• NYC employers with between five and 99 employees and employers with four or fewer employees and a net income of greater than $1 million in the prior tax year would be required to provide each employee with up to 40 hours of paid sick and safe leave per year; and
• NYC employers with 100 or more employees would be required to provide each employee up to 56 hours of paid sick and safe leave per year.

Prior to this change, under the ESSTA, all NYC employers have been required to provide up to 40 hours of sick and safe leave to employees, which can be paid or unpaid depending on the number of employees an employer has.

Other key provisions of the amended ESSTA include:

• requiring employers to reimburse employees for any fee incurred by the employee when a health care provider charges a fee for providing documentation supporting the need for leave under ESSTA;
• broadening the definition of “adverse actions” that an employer is prohibited from taking against an employee for exercising or attempting to exercise rights under the law or interfering with an employee’s exercise of rights under the law and its implementing rules;
• requiring employers to report the amount of safe and sick time accrued and used during each pay period, and each employee’s total balance of safe and sick time, on a pay statement or other document provided to the employee each pay period; and
• requiring employers to provide notice to employees of any changes under the law within 30 days of the effective date of such change.

Additionally, the amended ESSTA provides that the city’s corporation counsel can investigate and bring civil actions for “pattern or practice” violations under the law, and violations of the law would include civil penalties of up to $15,000 and relief of up to $500 to each affected employee.

NYC employers should be sure to amend their sick leave policies to comply with the amended ESSTA and new NYSSLL.