By Tracey I. Levy and Alexandra Lapes
Effective September 30, 2020, New York City is expanding its paid safe and sick time law (New York City’s Earned Safe and Sick Time Act or ESSTA), to bring the ESSTA in line with New York State’s statewide paid sick leave mandate, which is also set to take effect on September 30, by requiring more employers to provide paid leave to employees, and imposing some additional requirements. More specifically, under the revised ESSTA:
- employers with one to four employees are required to provide five days (40 hours) of paid safe/sick leave per calendar year if the employer had a net income of one million dollars or more during the previous tax year; and
- employers with 100 or more employees must provide a total of seven days (56 hours) of paid safe/sick leave per calendar year.
The revised ESSTA also removes the waiting period for newly hired employees to be able to utilize safe/sick time (previously 120-days post-hire) and removes the requirement that an employee work 80 hours in a calendar year to be eligible for safe/sick leave. Significantly, employees can utilize safe/sick time as it is accrued. There is a phase-in period for the balance of 2020, in that employers that are required to provide additional leave under the revised law can delay those additional leave entitlements until January 1, 2021.
The revised ESSTA imposes new notice and record-keeping requirements, as well as some fee-shifting to employers. In particular, it provides that if an employer requests documentation to support that an absence for more than three consecutive work days was used for an authorized purpose, the employer must reimburse the employee for all reasonable costs or expenses incurred for the purpose of obtaining that documentation. Additionally, employers must provide written notice of employees’ rights under the law upon hire and must conspicuously post that notice in the employer’s place of business, as well as provide current employees with notice of their rights no later than October 30, 2020. For each pay period, employers must provide the amount of safe/sick time accrued and used during that pay period and an employee’s total balance of accrued safe/sick leave on their pay stub or other form of pay period documentation. Employers are now required to retain records of complying with these requirements for at least three years.
Other notable additions to the ESSTA include explicitly adding “domestic violence” as an additional basis for taking safe leave, and expanding the definition of “adverse action” and other elements of the law’s retaliation protections. Finally, the ESSTA adds some more teeth by granting the Department of Consumer and Worker Protection (Department) the ability to open an investigation on its own or after receiving a complaint, and removing the requirement that the Department first attempt to resolve a complaint through mediation. The person or entity under investigation must respond and provide any information requested to the Department within 14 days (previously 30 days) of receiving notice of being under investigation. Additionally, corporate counsel is granted enforcement rights to initiate court proceedings and bring civil actions for pattern or practice violations. Employers found liable for any official or unofficial policy or practice of not providing or refusing to allow the use of safe/sick time will be subject to $500 in damages per employee, as well as additional damages of up to $15,000 for an unlawful practice or pattern violation.
These changes are significant enough as to warrant revisions to existing safe/sick time policies for most New York City employers, particularly with regard to the changes in accrual amounts, removal of waiting periods, expanded definitions, and the new employer reimbursement obligations for employees securing documentation to substantiate their absence.