Key Takeaways

• On February 22, changes to the New York City Earned Safe and Sick Time Act (ESSTA) and the Temporary Schedule Change Act took effect

• In short, employers will be required to provide additional paid leave and unpaid leave to all employees, including new employees upon hire with no probation period

• By March 8, employers are required to revise policies and procedures to comply, and must also physically post and distribute an updated notice of employee rights to current employees and new hires

Expansion of New York City’s Earned Safe and Sick Time Act (ESSTA) – previously reported here – became effective February 22.

The ESSTA now incorporates the Temporary Schedule Change Act, and the burden on employers to comply with those requirements has been lessened.

However, the expansions to the ESSTA provide additional qualifying reasons for an employee to request leave, require employers to provide 32 hours of unpaid safe/sick leave to all employees immediately upon hire and annually thereafter, and require employers to establish a separate bank of 20 hours of paid prenatal leave and 5 hours of preventative screening leave.

The new and unchanged leave policies must be tracked by the employer on a rolling 52-week calendar period. Notably, the amended law changes what was once referenced as “safe and sick time” to “protected time off.”

Additional Qualifying Reasons for Employee Leave

The additional leave reasons include public disasters, workplace violence, and caring for a child or care recipient. More specifically, this includes:

• Workplace and school/childcare closures due to public disaster – including events such as a fire, explosion, terrorist attack, severe weather conditions, and other public emergencies or disasters declared by the United States President, the governor of New York, or the mayor of New York City
• Public emergency directives to remain indoors and/or avoid travel
• Seeking legal or social services, or taking safety measures for workplace violence – including, but limited to, reporting to law enforcement, getting services, and serving as a witness
• Care duties for a minor child or care recipient, including school holidays and childcare disruptions
• Attending or preparing for legal proceedings for housing or subsistence benefits, or taking necessary actions to apply, maintain, or reinstate those benefits

In addition to the new permitted uses, the prior leave reasons also still qualify, including time to:

• Receive medical care or to recover from an illness or injury
• Care for a family member who is sick or has a medical appointment
• Care for a family or household member with a disability
• Actions necessary to leave an abuser if an employee is experiencing domestic violence – including, but not limited to, reporting to law enforcement, getting services, and serving as a witness

Required Prenatal and Preventative Care Leave

The ESSTA now clarifies that Safe and Sick Time is a separate bank from other types of required paid leave, including the newly-added prenatal leave and preventative screening leave.

Under the new law, employers are required to provide employees with a separate bank of 20 hours of paid prenatal leave annually, separate from Safe and Sick Time. This prenatal leave may be used for pregnancy-related healthcare, fertility treatment, and end-of-pregnancy care.

Employers must also provide an additional five hours of paid preventative screening leave annually.

Additional 32 Hours of Unpaid Leave

Another change to the ESSTA is that it now requires employers to provide 32 hours of unpaid leave annually for all employees to use for the specified reasons. Notably, these unpaid hours must be front-loaded and are available immediately upon hire.

Reduced Administrative Burden

The integration of the Temporary Schedule Change Act into the ESSTA has reduced the employer’s administrative responsibility to comply with the Temporary Schedule Change Act. Now, instead of allowing employees to request up to two temporary changes to their work schedule per year for qualifying personal events, as the pre-amended ESSTA did, these types of schedule-change requests are treated as valid reasons for using accrued Safe and Sick Time. This change eliminates the need for separate Temporary Schedule Change policies and procedures.

While employees still have the right to request a temporary change to their work schedule for qualifying personal events and are still protected from retaliation for making such a request, employers are no longer obligated to automatically grant these requests. Employers may now offer an alternative adjustment, which may be accepted or rejected by the employee.

Additional Changes

Finally, the requirements of the ESSTA may be waived if a collective bargaining agreement grants “superior or comparable benefits” in the form of paid or unpaid leave. However, for purposes of paid Safe and Sick Time or paid prenatal leave, unpaid time off does not qualify as a “comparable benefit.”

Employers must notify employees of the amount of protected paid and unpaid time off that has been accrued, used, and is immediately available for use within the calendar year. The notification must be communicated on an employee’s paystub or other documentation that is provided at each pay period.

ESSTA Requirements that Remain Unchanged

Employers may still request documentation for an employee’s leave request, as long as they have a written policy in place clearly stating this, and only after three or more consecutive days of absence.

Employers must still track all leave for each employee within a rolling 52-week calendar period.

An employee’s annual paid Safe and Sick Time is 40 hours for employers with between 5-99 employees, or 56 hours for employers with 100 or more employees.

Enforcement

Effective March 8, the New York City Department of Consumer and Worker Protection (DCWP) may begin enforcement and the issuance of penalties for violations of ESSTA. Specifically, employers could be penalized for failing to provide an additional 32 hours of unpaid leave, for failing to provide paid prenatal leave, or for not permitting employees to use any of the expanded uses for protected time off.

An employer’s failure to comply as a matter of “official or unofficial policy or practice” requires that relief be granted to every employee affected by the policy or practice by: 1) adding the number of hours of protected time off that should have accrued to the employee’s balance (provided that balance does not exceed two times the maximum number of hours in a calendar year); 2) adding 32 hours of unpaid protected time off to the employee’s balance; and 3) $500 in monetary relief paid per calendar year that the violating policy or practice was in effect to each affected employee.

An employer’s failure to comply as a matter of “official or unofficial policy or practice” with the new paid prenatal leave obligations require relief be granted to every affected employee by: 1) adding 20 hours of paid prenatal leave to the employee’s paid prenatal leave balance; and 2) $500 in monetary relief paid per calendar year that the violating policy or practice was in effect to each affected employee.

Immediate Action Required

Employers must update their policies and procedures and physically post and distribute the DCWP’s revised Notice of Employee Rights to current employees and new hires by March 8. Posted notices must be in English and in any language that is spoken by 5% or more of employees in a workplace. Notably, posting or distributing the Notice of Employee Rights is not a substitute for having the written policy. Employers must do both to be compliant.

For more information, refer to the City’s ESSTA FAQ and updated Notice of Employee Rights.

To have an experienced employment attorney review and update your Employee Handbook and policies to ensure compliance with the new laws, or with any other questions, please contact:

• Logan Arlen
• Cali L. Chandiramani
• Scott R. Green
• Christopher P. Maugans
• Caroline J. Berdzik
• Stephen C. Mazzara
• Or another member of the Employment and Labor team