NEW YORK CITY’S FINAL RULES ON SAFE AND SICK TIME BECOME EFFECTIVE

On September 15, 2023, the New York City Department of Consumer and Worker Protection ("DCWP") issued a final rule ("Final Rule") on the City's Earned Safe and Sick Time Act ("ESSTA").

Recap of ESSTA
Under the ESSTA, employees may use safe/sick time for various reasons. 

• Employers with at least 100 employees must provide up to 56 hours of paid safe/sick time each year;

• Employers with fewer than 100 employees must provide 40 hours of paid safe/sick time;

• Employers with up to four employees must provide 40 hours of paid safe/sick time if the company had net income of at least $1 million in the previous tax year; and

• Employers with up to four employees with a net income of less than $1 million in the previous tax year must provide 40 hours of unpaid safe/sick time.

Clarification on Employer Count
Note that the headcount includes both full-time and part-time employees.

Clarification on New York City Employee Coverage
The Final Rule clarifies that the ESSTA applies to the employees who meet one of the following conditions: 

• The employee physically works in New York City, regardless of where the employer is located;

• The employee works remotely but physically works in New York City, regardless of where the employer is located; or

• The employee primarily works outside of New York City but regularly performs, or is expected to regularly perform, work in New York City during a calendar year. 

Notice and Supporting Documentation 

The Final Rule newly defines "foreseeable absence." A need is foreseeable when the employee is aware of the need to use safe/sick time seven days or more before such use. Otherwise, the need is not foreseeable. 

The Final Rule reiterates the limits of what information employers can request. For example, for use of safe time, employers cannot require disclosure of details, except the dates the employees intend to use safe time leave. 

Further, if an employee incurs expenses when obtaining the requested supporting documents, the employer must reimburse the expenses. 

Rate of Pay
A reminder that the ESSTA requires the employer to pay employees requesting safe/sick time. 

Written Policy Requirement
The Final Rule requires employers to add a statement concerning confidentiality to the employer's policy. Here is the statement provided by the Final Rule: "The employer will not ask the employee to provide details about the medical condition that led the employee to use sick time or the personal situation that led the employee to use safe time, and that any information the employer receives about the employee's use of safe/sick time will be kept confidential and not disclosed to anyone without the employee's written permission or as required by law."

Transfer of Employees
The Final Rule emphasizes that employees' safe/sick time balances must remain regardless of any business sale, transfers in corporate ownership, or changes in subcontracting relationships between corporate entities. 

Penalties and Enforcement

The ESSTA imposes fines and a range of penalties for non-compliant employers. The adopted changes in the Final Rule became effective on October 15, 2023. New York City employers should ensure they have taken necessary steps to understand and comply with the contents in the Final Rule.

This document is designed for general information only. The information presented in this document should not be construed to be formal legal or tax advice nor the formation of a lawyer/client relationship. 

For more information on this and other topics, please contact Kevin via any of the channels listed below:

📧 kevin@kmckernan.com  | 📞 718-317-5007