NYC DEPARTMENT OF CONSUMER AND WORKER PROTECTION ISSUES FINALS RULES UNDER NYC’S EARN SAFE AND SICK TIME ACT

In September 2023, the New York City Department of Consumer and Worker Protection ("the Department") finalized amendments to rules ("final rules") under the New York City Earned Safe and Sick Time Act ("ESSTA”). 

Background of ESSTA's Key Provisions – Statutory Thresholds for Paid and Unpaid Safe/Sick Time:

ESSTA provides New York City employees with time to be taken for safe and sick leave purposes. 

The Final Rules: 

Calculating Employer Size: The final rules clarify that calculating employer size for the purposes of ESSTA depends on the number of employees nationwide. 

Eligibility for Statutory Benefits: 

• Employees (including fully remote workers) whose physical place of work is in New York City can claim ESSTA's benefits regardless of their employer's location. 

• Employees who work physically only outside of New York City cannot claim any benefits, even if they work for employers within the City. 

• Employees with primary work locations outside the City but who work regularly within the City are eligible for benefits, but only the hours worked in New York City count for accrual purposes. Such workers must work 30 hours physically within New York City to accrue an hour of safe/sick time.

Documentation to support the use of safe/sick time: An employer is prohibited from requesting documentary support for any use of safe/sick time leave that is three or fewer days in duration. 

Carryover of accrued time: The amended rules clarify how accrued time carries over across calendar years. 

Notice of Benefits:

Employers must notify their employees either on a pay stub or through any other form of written documentation of the balance of safe/sick time that they accrued in the pay period and the amount of time available for use in the calendar year. 

If the employer uses an electronic system for generating pay stubs or documents relating to safe/sick time, then the employer can comply with the notice provisions by doing all of the following: (iCA) alerting their employees electronically during each pay period of the balance of accrued time and the amount of time available for use in the calendar year; (ii) making this information accessible to employees electronically from outside the workplace; and (iii) making such information for any past pay period also readily available to employees from outside the workplace. 

Employers within New York City or employers with any employees working in New York City should review these finalized rules carefully to ensure their safe/sick time policies and documentation comply with ESSTA's requirements. Employers who violate ESSTA may be liable for fines starting from $250 to $500 for every violation committed against an individual employee in each calendar year.

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