Key Takeaways

• New York City employers must act now to ensure compliance with new state and city requirements affecting paid sick leave

• Important changes pertaining to the amount of paid sick leave afforded, reimbursement to employees for obtaining supporting documentation, and the elimination of waiting periods

• Employers must also provide notices of rights at the time of hire, on-site, and electronically for remote employees

On September 28, 2020, New York City Mayor Bill DiBlasio signed sweeping amendments to the Earned Safe and Sick Leave Law—which were effective just two days later. This has required immediate action by city employers to ensure compliance with their Earned Sick and Safe Time (ESST) policies and practices.

Adding to the difficulty, employers also need to ensure compliance with New York State’s newly enacted Paid Sick Leave (NYPSL). Unfortunately, New York State has yet to publish any guidance, FAQs, or regulations with regard to the NYPSL, which went into effect at the end of September. Accordingly, many employers are left with no clear guidance as to how to comply with the NYPSL requirements. This is especially the case given many ambiguities within the text of the law itself. Despite this, employers need to take action quickly (if they have not already) to comply.

Here are some of the major changes set forth within the ESST amendments that NYC employers should be aware of:

• PRE-AMENDMENTS: Employers with five or more employees who work more than 80 hours a year in New York City were required to provide paid safe and sick leave of up to 40 hours per year.
• NOW: Employers with 100 or more employees must provide up to 56 hours of ESST.  This aligns with the leave obligations under the NYPSL. (These employers do not have to permit use of leave beyond 40 hours until January 1, 2021.)

• PRE-AMENDMENTS: Employers with fewer than five employees were required to provide up to 40 hours of unpaid safe and sick leave.
• NOW: The ESST now requires employers with four or fewer employees and a net income of $1 million or more in the previous tax year to provide paid ESST. (These employers do not have to provide paid leave until January 1, 2021.)

• PRE-AMENDMENTS: An employer can require the employee to provide supporting documentation when they use more than three consecutive days of ESST.
• NOW: The employer must reimburse an employee for any costs incurred in obtaining supporting documentation if required by the company.

• PRE-AMENDMENTS: Employers could require up to a 120-day waiting period before a new employee would be allowed to use ESST.
• NOW: Employees must be permitted to use leave immediately as it accrues.

• PRE-AMENDMENTS: Employers did not need to include an accounting of ESST on paystubs or with payroll documents each pay-period.
• NOW: Employers are required to include (1) the amount of ESST accrued and used during the pay period, and (2) the total balance of accrued ESST on an employee’s paystub or other writing given to the employee each pay period.

• PRE-AMENDMENTS: Only employees who worked for more than 80 hours a year in the city were eligible for ESST.
• NOW: There is no time worked requirement.

In addition to providing a notice of rights at the time of hire, employers must also now post a notice of rights in the worksite. To the extent employees are remote or cannot access the physical worksite, employers should distribute the notice electronically. Notably, employers must also distribute an updated notice of rights to existing employees by October 30, 2020.

Of course, city employers will need to ensure compliance with both the NYPSL and ESST. Employers should immediately analyze their current sick leave practices and policies to ensure compliance.

If you have any questions about these changes or how they impact your business, please contact:

• Scott R. Green
• Jacqueline K. Siegel
• Caroline J. Berdzik
• Peter J. Woo
• Kristin Klein Wheaton
• Or another member of the firm’s Employment and Labor team