On September 15, 2023, the New York City Department of Consumer and Worker Protection issued a Final Rule (Final Rule) amending the Rules of the City of New York governing the Earned Safe and Sick Time Act (the Act). The Final Rule amends certain provisions of the Act, provides clarification and guidance previously missing on other provisions, and ensures that the text of the Act aligns more closely with the 2020 New York State Paid Sick Leave Law. These amendments will take effect on October 15, 2023, meaning that employers are under a tight time frame to bring their policies and practices into compliance with the updated rule. The most notable updates are highlighted below.

Calculating Employer Size

While the Act categorizes employer obligations based on the employer's size, previous guidance was unclear as to which employees counted toward the total employee count. The Final Rule clarifies that an employer's size is determined by its total number of employees nationwide, not just employees present in New York State or City; part-time employees are counted equally with full-time employees. Additionally, employees who are jointly employed by more than one employer are to be counted toward the totals of both employers, regardless of whether the individual appears on the employer's payroll. Finally, employees on leaves of absence, suspensions, or other temporary absences count toward the total number of employees, provided that the employer has a reasonable expectation that the employee will return to active employment at a later date.

Determining Which Employees Are Covered

The protections of the Act have always applied only to "New York City employees," but the COVID-19 pandemic highlighted the confusion around remote workers and whether they should receive these benefits. The Final Rule now specifies that any employee who performs work while physically located in New York City is to be covered by the Act, regardless of where the employer is located. Conversely, remote workers who do not have a physical presence in New York City are not covered, regardless of where the employer is located. In other words, the primary consideration is where the employee performs work, not where the employer is based.

However, an employee with a primary work location outside of New York City is to be considered a "New York City employee" if they regularly perform or are expected to regularly perform work within New York City at any point during the calendar year. For these employees, only hours worked within New York City must count toward the accrual of safe and/or sick time under the Act. The Final Rule does not define what is meant by "regularly perform work"; however, it offers illustrative examples that show than an out-of-state employee who travels to New York City once or twice a year would not be covered under the Act. However, an out-of-state employee who is expected to regularly cover shifts throughout the year in New York City, or an employee based in a different New York county who performs substantial work on a New York City jobsite, would be covered and accrue safe and/or sick time for those hours worked within city limits. This determination will be made on a case-by-case, fact-based analysis.

Proof of Authorized Use of Safe and/or Sick Time

While an employer has the right to require an employee to submit documentation when an employee's use of safe and/or sick time results in their absence of more than three consecutive workdays, the Final Rule clarifies that the employer may not do so before returning the employee to work.

Notice of Foreseeable Safe and/or Sick Time Use

Employers have been required to include any employee obligation to provide reasonable notice of the need to use safe and/or sick time in their written policy. The Final Rule adds to the suggested methods by which an employee may do so, including email submission to a designated email address and submission of a leave request in a scheduling software system (provided the employee has access to such system on non-working time and has been properly trained on and given written instructions on how to use the system).

Notice of Accruals on Pay Statements

Employers were already required to inform employees of their safe and/or sick time balances on their wage statements. However, the Final Rule provides some flexibility for employers, stating that they may otherwise comply with this requirement by (1) alerting the employee each pay period to the availability of the required information, (2) making the information readily available outside of the workplace within the electronic system, and (3) maintaining accrual, use, and balance information for any past pay period so that it is readily accessible to the employee outside of the workplace.

New Written Policy Requirements

Every employer must maintain and distribute written safe and/or sick time policies. The Final Rule adds new required content for these policies, including the following:

• An employer may require an employee to provide reasonable notice of the need to use safe and/or sick time, provided the requirement to provide notice and the method of providing notice are set forth in the written policy.
• An employer may require written documentation of an authorized use of safe and/or sick time in instances where an employee's absence lasts longer than three consecutive workdays. An employer must set forth this requirement, along with the types of reasonable written documentation the employer will accept and instructions on how employees can submit the documentation to the employer, in the written policy.
• An employer may withhold payment of safe and/or sick time until the employee has provided required documentation of authorized use of safe and/or sick time, except that the employer shall not withhold payment when the required documentation is unattainable by the employee because of associated costs. An employer must set forth instructions in the written policy on how employees can submit requests for reimbursement and proof of fees or costs to the employer.
• An employer must include a statement that the employer will not ask the employee to provide details about the medical condition that led to the employee to use sick time, or the personal situation that led the employee to use safe time, and that any information the employer receives about the employee's use of safe and/or sick time will be kept confidential and not disclosed to anyone without the employee's written permission or as required by law.
• If the employer uses a calendar year other than the 12-month period between January 1 and December 31 for the purposes of administering its safe and/or sick time, it must communicate this to employees in its written policy and written notice of the employee's right to safe and/or sick time.

Employers should pay particular attention to these additions, as they may not be able to take advantage of some of these items unless they are specifically outlined in their written policies.

Implications for Employers

As the deadline for compliance is fast approaching, employers are strongly encouraged to review all current policies regarding safe and sick time accrual and use and consider whether changes need to be made to conform to the new requirements. Employers should also train all human resources employees and relevant managers and supervisors on the new requirements under the law.