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On September 15, 2023, 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 October 15, 2023. The changes are numerous
and touch upon many aspects of ESSTA compliance. A summary of the
most notable developments is presented below.
Clarification on Who Is Covered by the Law
In light of increased remote working arrangements, the regulations now explicitly state that an employee who performs work, including work by telecommuting, only while physically located outside of the City of New York, is not "employed for hire within the City of New York." This is the case even if the employer is located in New York City. Accordingly, such employees are not covered by the ESSTA.
The amended regulations also address the impact of "hybrid" work on coverage under the ESSTA. Specifically, 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 do 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 by 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 an entire calendar year.
Finally, the amended regulations eliminate the carveout for domestic workers, making the regulations consistent with the 2020 amendment to the ESSTA, which entitled all domestic workers to sick and safe time.
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 on an annual basis (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 currently employed at any point during the calendar year to date. 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 (so long as the employer has a reasonable expectation that the employee will later return to active employment).
The amended regulations now set forth the procedures to be followed when an employer shifts above or below the applicable thresholds. In general, 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 (if available) 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.
Update on Employees Providing Notice When Taking Leave 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 method(s) 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), but make clear that 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 now also 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, the regulations now indicate that 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 or expenses 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, Used Leave, and Various Balances to Employees
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).
Shortly after the 2020 amendment to the ESSTA, the Department issued informal guidance on its webpages indicating that employers could meet this reporting requirement "on a paystub or through an employee-accessible system." The amended regulations now 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: (i) electronically alert the employee each pay period to the availability of the required information; (ii) make the required content readily accessible by the employee outside of the workplace within the electronic system; and (iii) 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.
Conclusion
Employers should carefully consider whether their existing policies and safe and sick time practices comport with the recently revised regulations. Employers can contact employment counsel for more detailed guidance on how to comply with safe and sick time obligations in New York City, elsewhere in New York State, and beyond.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
