On September 28, 2020, New York City Mayor Bill de Blasio signed a bill into law significantly amending the New York City Earned Safe and Sick Time Act (“NYC ESSTA”). The new law was enacted to better align with New York State’s new paid sick leave law (“NYS Paid Sick Leave Law”) and make the two laws more consistent. Similar to the NYS Paid Sick Leave Law, the amendments to the NYC ESSTA took effect on September 30, 2020.
According to the amended NYC ESSTA, employees no longer need to work more than 80 hours in a calendar year within New York City to be eligible to accrue safe and/or sick time. The amount of safe/sick time employees are eligible to accrue under NYC ESSTA (at least at the rate of one hour of safe/sick time for every 30 hours worked) and whether it is paid or unpaid, is determined as follows:
- Employers with four or fewer employees and a net income of less than $1 million in the previous tax year must provide employees with at least 40 hours of unpaid safe/sick time per calendar year.
- Employers with four or fewer employees and a net income of greater than $1 million in the previous tax year; employers with one or more domestic workers; and employers with between five and 99 employees must provide employees with at least 40 hours of paid safe/sick time per calendar year.
- Employers with 100 or more employees must provide employees with at least 56 hours of paid safe/sick time per calendar year.
Effective January 1, 2021, employees may use paid safe/sick time as it is accrued, which is also consistent with the dictates of the NYS Law. Under the previous NYC ESSTA, employees began using accrued safe/sick time on the 120th calendar day following commencement of the employee’s employment. This 120-day waiting period has been eliminated.
Notably, employers are required to provide notice of the changes imposed by the NYC ESSTA amendments to current employees no later than October 30, 2020. Some other important updates are as follows:
Updated Employer Reporting Requirements
Beginning September 30, 2020, the amendments require that the amount of safe/sick time accrued and used during a pay period and an employee’s total balance of accrued safe/sick time must be noted on a pay statement or other form of written documentation provided to the employee each pay period. Employers who fail to adhere to these requirements may be subject to a civil penalty of up to $50 for each employee who was not given appropriate notice.
The New York City Department of Consumer and Worker Protection has indicated that the City would not enforce this provision against employers until November 30, 2020, provided such employers are “working in good faith on implementation.”
Medical Documentation Reimbursement
Under the NYC ESSTA, an employer may request reasonable supporting documentation from an employee for any use of safe or sick leave use of more than three consecutive work days. Under the amendments, employers requesting medical documentation must now reimburse the employee if the health care provider charges a fee for the documentation. The NYS Paid Sick Leave Law is currently silent on an employer’s right to request reasonable documentation from an employee to substantiate employee leave.
Written notice of an employee’s rights under NYC ESSTA must now be provided to employees at the commencement of employment, and the notice must be conspicuously posted at the employer’s place of business in an area accessible by employees.
Prohibited Retaliation and Increased Penalties
The NYC ESSTA amendments directly prohibit taking any “adverse action” designed to penalize for or deter an employee from exercising his or her rights under the NYC ESSTA. The amendments also increase the penalties that may be assessed against employers for violations of the law and granted authority to the NYC Corporation Counsel to bring civil actions against employers for non-compliance with the NYC ESSTA. Employers found to have engaged in a pattern or practice of violating NYC ESSTA may be subject to civil penalties of up to $15,000, and may also be ordered to pay up to $500 to each employee covered by the employer’s official or unofficial policy or practice of refusing to allow the use of earned leave under the law.
New York City employers should be sure to update their policies and practices to ensure compliance with both state and city law. We will continue to monitor developments and provide updates as they become available. Should you have any questions regarding the amendments and how they apply to your business, please contact ALG.