New York City first adopted a local paid sick leave law in 2014. Over the ensuing six years, the City legislature amended the law several times, including in 2018 to add "safe leave" as a form of paid time off. Late last month, the City amended the Earned Safe and Sick Time Act (ESSTA) yet again – this time to align the Big Apple's local law with the recently-enacted statewide Paid Safe and Sick Leave law (NYSPSL). As detailed below, the bill builds on and expands the ESSTA's existing paid safe and sick leave requirements.
Scope of coverage
To start, the amendments modify the scope of workers covered by the ESSTA. Under the prior iteration of the law, the ESSTA only applied to individuals who worked in New York City more than 80 hours in a calendar year. The amended law, however, applies to all individuals employed within the City, regardless of the number of hours worked.
Amount of leave required
The ESSTA has, since its inception, required that businesses with five or more employees provide each of their workers with up to 40 hours of paid time off per year (businesses with four or fewer employees must provide the same amount of time off, but on an unpaid basis). The recent amendments, however, create several additional obligations in this regard (which primarily track the NYSPSL). Most notably:
- Domestic workers are now eligible for 40 hours of paid leave.
- Effective January 1, 2021, employers with more than 100 employees must provide up to 56 hours of paid leave (employers with five to 99 employees will still be required to provide up to 40 hours of paid leave).
- Effective January 1, 2021, employers with four or fewer employees and a net income of $1 million or more during the previous tax year must provide 40 hours of paid
In addition, whereas the prior iteration of the ESSTA permitted employers to impose a 120-day waiting period prior to allowing employees to use accrued safe and sick time, the amended law allows employees to use such time as it is accrued (subject to a few narrow exceptions).
Reimbursement of documentation fees
Under the ESSTA, employers may require employees to provide reasonable written documentation that their use of ESSTA was for a purpose permitted by the statute (for absences of more than three consecutive work days). The recent amendments do not abolish this practice. However, they do require that employees are now to be reimbursed for any fees associated with such documentation requests.
Providing written notices to employees
Perhaps the most immediate employer action precipitated by the recent amendments is to provide various forms of written notice to new and current employees. For one thing, employers must furnish written notice of the updated ESSTA to all existing employees by October 30, 2020, and to new hires at the commencement of employment. This same notice must also be conspicuously posted in the workplace "in an area accessible to employees."
In addition, for each pay period, employers must now include the following information on employee pay stubs or via another form of written documentation: (1) the amount of leave accrued and used by the employee during the applicable pay period; and (2) the employee's total accrued leave balance. This pay stub requirement takes effect on November 30, 2020 (but employers are expected to make good faith efforts to comply before that date).
Adverse actions and enforcement guidelines
The amended ESSTA also bars additional adverse actions taken against employees for exercising or attempting to exercise their rights under the law, including but not limited to the use of threats, intimidation, discipline and discharge. The law also specifies that employers will have violated the law, even where an employee's attempt to use or actual use of ESSTA was just one of several motivating factors in the employer's decision to take an adverse action against them.
Finally, the amendments include a variety of updates to the enforcement and investigation guidelines under ESSTA. This includes the addition of a new $500 penalty per covered employee for an employer's practice of failing to provide or refusing to allow the use of accrued leave.
What steps should employers take in light of this new law?
In light of the recent ESSTA amendments, employers should review existing policies to determine whether they meet the requirements of the newly-enacted City and State laws. In addition, employers should immediately begin implementing the steps necessary to comply with the new notice and pay stub requirements.
Originally published by Reed Smith USA, October 2020
This article is presented for informational purposes only and is not intended to constitute legal advice.