New Effective Regulations for New York City Earned Safe and Sick Time Act
Fast Facts:
These regulations codify the 2020 amendments to the New York City Earned Safe and Sick Time Act (ESSTA).
The regulations are effective Oct. 15, 2023.
The regulations clarify:
When someone is eligible for ESSTA, even when not permanently physically in New York City.
All employees nationwide should be counted for the threshold number of hours to be accrued by employees.
How hours worked fewer than 30 should be accrued.
Information necessary in written policies.
Amended regulations for ESSTA went into effect on Oct. 15, 2023. These regulations are in response to the 2020 amendments to ESSTA, which were prompted by the New York State Paid Sick Leave Law. The regulations act to clarify outstanding questions where the statute was unclear.
As a reminder, ESSTA requires that for covered reasons, employers with 100 or more employees provide up to 56 hours of paid leave each calendar year, employers with five to 99 employees provide up to 40 hours of paid leave each calendar year, and employers with four or fewer employees provide up to 40 hours of either paid or unpaid leave each calendar year, depending upon the employer’s net income. The time is accrued based upon the number of hours an employee works.
Employees Physically Working Outside of New York City Are Not Eligible for ESSTA
There is good news for employers! Any employee who performs work while they are physically located outside of the City is not eligible to receive time off under ESSTA. This includes remote employees who work outside the City, even if employed by or managed by a New York City employer, and even if that employee must spend de minimus time in New York City, for instance a couple days per year for all hands meetings. Of course, employees working remotely within New York City, even if they report to an employer outside New York City, are eligible for ESSTA.
But, Read the Fine Print
With that said, employers should be careful to ensure that the employee who typically works outside New York City is not expected to regularly work within it. The regulations make clear that an employee IS covered under ESSTA where an employee is expected to regularly perform work in New York City, even where such schedule is erratic and time in the City is minimal.
For instance, the regulations provide an example of a retail employee who typically works out of state, but is told they may need to cover one to three shifts some months in New York City due to staffing shortages, but there will likely be months where they do not need to work in New York City at all. The regulations confirm this is an expectation of regular work in New York City. Likewise, employees who have project-based work that requires them to be in New York City for several weeks would be covered under ESSTA while in the City (though the regulations clarify that a one-day project in New York City would not make an employee eligible). Practically speaking, only those hours worked in New York City count toward ESSTA accrual, and employees may only use that time accrued when scheduled to work in New York City.
Don’t Short Employees on Time Actually Worked
The regulations also clarified that in counting accrual hours – for all employees – all time worked must be counted, even if the time worked is less than a 30-hour increment. If an employee works fewer than 30 hours per week, employers may round accrued ESSTA time to the nearest five minutes, one-tenth or quarter of an hour, provided such rounding will not ultimately result in shorting an employee time accrued for time actually worked.
Some Clarifications on ESSTA Requirements
Of course, this is New York City, so many of the clarifications benefit employees. For instance, when counting the number of employees to determine how much paid safe and sick leave must be provided, all full- and part-time employees must be counted, (including those on leaves or jointly employed), not just those in New York City.
Notably, employers must calculate the amount of leave to be provided based upon the highest number of employees employed at any point in the year. Thus, if an employer hits a new threshold of employees (i.e., at least five or 100), employees are immediately entitled to the amount of ESSTA based upon that new threshold, less any time already taken. If an employer’s headcount should drop below a particular threshold, an employer may not lower the amount of hours available until the following calendar year. For example, if an employer has 4 employees in January, and in June of the calendar year has seven employees, as of June, all employees are eligible for up to 40 hours of paid time off, less the number of any unpaid safe/sick leave time they had previously used.
The regulations also clarify that written policies must provide any requirement, if there is one, and how such notice must be provided to the employer if advance notice for foreseeable leave is required. Additionally, if an employer requires written documentation when an absence is more than three consecutive workdays to verify the absence qualifies for ESSTA, such requirement must be in the written policy, as well as the written documentation required, and how to submit that documentation. As a reminder, employers requiring written documentation for the need for ESSTA leave must reimburse employees for the cost of receiving such documentation.
The regulations also clarify that seven days is the most amount of advance notice that may be required for foreseeable leave. The regulations also clarified what foreseeable means – only leave that an employee was aware needed to be taken at least seven days in advance is foreseeable. As such, employees who learn of the need to take ESSTA leave less than 7 days before the leave only have to provide notice as soon as practical.
Notifications Required
As indicated in the 2020 amendment, employers must show employees the ESSTA time accrued and used during the pay period, the total balance of ESSTA time accrued, and the amount of ESSTA time available for use by the employee either via pay statement or other form of written notification provided each pay period. If the information is provided via an electronic system, employers must ensure that they provide notice to employees each pay period that the required information is available and that the information is accessible by employees outside of the workplace. Employees must also maintain the necessary information for past pay periods and keep it readily accessible to employees outside the workplace.
What Should Employers Do?
Notably, an employer’s failure to maintain and distribute an ESSTA policy or failure to maintain adequate records of an employee’s accrued time and balance will result in a reasonable inference drawn against an employer in terms of a violation of ESSTA. To avoid such inference, employers should ensure their systems properly conform to the accrual and notice guidance, and tracking when employees are working within New York City to ensure all eligible individuals are accruing correct time. Also ensure that employees who manage ESSTA are properly trained on its requirements, and that policies are up to date, and properly posted and distributed to all employees.
If you are an employer who has questions about ESSTA implementation and management, contact ELS for more information.