New York City Amends Safe and Sick Time Regulations

​On Sept. 15, the New York City Department of Consumer and Worker Protection adopted changes to the regulations governing the city's Earned Safe and Sick Time Act (ESSTA). The effective date of the changes is Oct. 15.

In light of increased remote working arrangements, the regulations now state that an employee who performs work only while physically located outside of New York City is not covered by the ESSTA. An employee with a primary work location outside of New York City may be covered by the ESSTA "if they regularly perform, or are expected to regularly perform, work in New York City" during a calendar year.

For example, the regulations note that a retail worker based at an employer's New Jersey location will be covered by the ESSTA if they are asked to cover "one to three six- to eight-hour shifts in New York City" when needed due to staffing shortages, even if in some months the employee may not work in New York City at all. Likewise, an employee working at a construction site in New York City for a fixed-term, eight-week project will be covered by the ESSTA while working in New York City, even though their normal base of operations is outside of New York City. For both of these examples, to the extent that such an employee may be covered by the ESSTA, the amended regulations clarify that hours worked only within the city count as "hours worked" for the purposes of safe and sick time accrual and usage under the ESSTA.

The amended regulations provide two examples of work within New York City that would not implicate coverage under the ESSTA: (1) an employee working remotely in from another state who reports to daylong meetings at the Manhattan headquarters approximately twice per year and (2) a one-day project for a New York City customer performed by an employee based outside of New York City who is not expected to return to New York City in that calendar year. Both of these examples reflect de minimis work in New York City (16 and 8 hours, respectively) over the course of a year.

Employer Size and Coverage Thresholds

Under the ESSTA, private employers with 100 or more employees are required to provide up to 56 hours of paid safe and sick time annually, while employers with fewer employees need only provide up to 40 hours of safe and sick time annually (but whether the 40 hours are paid or unpaid depends on headcount and gross revenue).

The amended regulations clarify that the headcount calculation is based on the number of employees nationwide—not only those employees working in New York City—and is determined by counting the highest total number of employees employed at any point during the calendar year. This headcount must include full-time employees, part-time employees, employees jointly employed by one or more employers, and employees on leaves of absence, suspensions and other temporary absences.

The amended regulations set forth the procedures to be followed when an employer shifts above or below the applicable thresholds. An employer rising to the next coverage threshold must make an immediate, prospective change to the sick and safe time benefits provided to its employees. For example, an employer that increases headcount above 99 employees in June must allow its employees to use an additional 16 hours of sick and safe time for the remainder of the calendar year, even if an employee had already used 40 hours during that calendar year. However, an employer shifting down to a lower coverage threshold cannot reduce employee sick and safe time entitlements until the following calendar year.

Notice and Documentation Requirements

Current regulations permit an employer to require reasonable advance notice of an employee's need to use safe and sick time. However, the amended regulations emphasize that this requirement, and the methods of providing such notice, must be included in an employer's written policy. The newly adopted regulations also continue to differentiate between when notice may be required for an "unforeseeable" absence (as soon as practicable) and a "foreseeable" absence (up to seven days in advance of the absence). An absence may only be considered "foreseeable" if the employee is aware of the need to use safe and sick time seven days or more before the use. Short of that, the absence is "unforeseeable." Employers can require reasonable methods of providing advance notice, which may include sending an email to a designated email address or submitting a leave request in a scheduling software system, provided the employee has access to such system on non-work time and has been trained on and given written instructions on how to use the system.

To align with the 2020 amendments to the ESSTA, employers requiring written documentation of an employee's need for sick time must reimburse employees for all fees charged by a licensed health care provider. Likewise, the employer must reimburse the employee for all reasonable costs incurred in obtaining documentation for safe time. Employers requiring written documentation for sick and safe time use must include the following information in a written policy: a statement of the requirement, the types of written documentation the employer will accept, and instructions on how employees can submit the documentation to the employer.

Reporting Available Leave and Used Leave

The 2020 amendments to the ESSTA created a new requirement for employers to show the amount of safe/sick time accrued and used during a pay period and an employee's total balance of accrued safe/sick time on a pay statement or other form of written documentation provided to the employee each pay period. The revised regulations clarify that employers must specify both the total balance and the amount of time available for use if those two values differ (e.g., an employee with an 80-hour balance due to carryover of unused time from a prior calendar year may only have 56 hours available for use in the current calendar year, if the employer imposes an annual usage cap).

Employers can meet this reporting requirement on a paystub or through an employee-accessible system. The amended regulations formalize this compliance option and indicate that employers using an electronic system to issue pay statements or other documentation related to sick and safe time must:

• Electronically alert the employee each pay period to the availability of the required information.
• Make the required content readily accessible by the employee outside of the workplace within the electronic system.
• Maintain accrual, use, and balance information for any past pay period in the electronic system, so that it is readily accessible to the employee outside of the workplace.
  

Sanjay Nair and Daniel Gomez-Sanchez are attorneys with Littler in Long Island, N.Y. Stephanie Mills-Gallan is an attorney with Littler in Milwaukee. © 2023. All rights reserved. Reprinted with permission.