Under a bill introduced at the New York City Council meeting on June 22, 2023, New York City employers would be required to allow employees to accrue up to 80 hours of personal time off that can be used for any reason, in addition to the sick and safe leave such employers already must provide employees under the New York City Paid Sick and Safe Leave Law. If enacted, the law would take effect 120 days later. The proposed amendment has been referred to the NYC Council's Committee on Civil Service and Labor.
Paid or Unpaid Personal Leave and Total Amount of All Leave
Whether the personal time off is paid or unpaid would vary by the size of the employer:
- Employers with five or more employees or one or more domestic workers would be required to permit their employees to accrue up to 80 hours of paid personal time off.
- Employers with four or fewer employees would be required to permit their employees to accrue up to 80 hours of unpaid personal time off.
When analyzed in connection with the New York State Sick Leave Law, employers with 100 or more employees would be required to provide 56 hours of paid sick leave AND 80 hours of paid personal leave.
Moreover, unlike the current requirements for sick/safe time (described in our prior advisories), for employers with at least five employees, the amount of paid personal leave would be the same – 80 hours – regardless of the employer's annual net income. Smaller employers (those with four or fewer employees) would also be required to provide 80 hours of personal time off, but the time off would be unpaid.
Rate of Pay
Personal time off would be paid at the employee's regular rate of pay.
Rate of Accrual
The accrual rate for personal time off would be one hour of personal time off for every 30 hours worked up to a maximum of 80 hours accrued per calendar year. Employers would be able to allow employees to accrue personal time off at a faster rate, or provide the 80 hours of personal time off in a lump sum at the beginning of the year.
Carry-Over of Personal Time Off
Under the proposed amendment, employees would be allowed to carry over up to 80 hours of accrued, unused personal time off into the following calendar year. However, employer's would still be allowed to limit an employee's annual use of personal time off to 80 hours per year, so that some of the carried-over time may never be used.
For example, an employee who carried over 10 hours of accrued, unused personal time off from one year to the next who then accrued another 80 hours of personal time off would still only be able to use a total of 80 hours of personal time off in that subsequent year (not 90).
Employers would be allowed, but not required, to pay employees for accrued, unused personal time off at the end of a calendar year, rather than allowing the time to be carried over to the next year. However, employees would not be entitled to payment for accrued but unused personal time off at the end of employment.
In addition, an employer who chose to "front-load" the full 80 hours of personal time off on the first day of the next year would not have to allow employees to carry over any accrued, unused personal time off under the amended law.
When Accrual and Use of Personal Time Off Would Begin
Under the proposed amendment, employees would begin accruing personal time off upon hire or the effective date of the law (whichever is later).
Unlike paid sick and safe leave (which can be used as soon as it is accrued) an employer would be able to require an employee to wait 90 days after hire (or 90 days after the effective date of the law, whichever is later) before using any accrued personal time off. After the 90th day of employment or 90 days after the effective date of the law (whichever is later), employees would be allowed to use personal time off as it is accrued.
Employers will be able to set a minimum increment for an employee's use of personal time off, which shall not exceed four hours per day. That means that an employee who only needs four hours of personal time off could not be required to use an entire day (eight hours).
Notice to Employer
When the need for personal time off is foreseeable, an employer would be allowed to require not more than 14 days' advanced notice. The proposed amendment also states that the New York City Human Rights Commission may issue rules requiring a different amount of notice.
When the need for personal time off is unforeseeable, an employer may only require an employee to provide notice "as soon as practicable."
In addition, the proposed amendment would allow employers to establish and enforce rules "concerning reasonable advance notice for use of personal time and the right to deny such requests consistent with such rules, provided that the notice requirements and circumstances in which an employer may deny a request are clearly described in an employer's written policies, that such policies are disseminated to all affected employees, and that such policies are applied consistently and in a nondiscriminatory manner."
Employers Who Already Provide As Much or More Paid Leave
Under the proposed amendment, employers who already provide as much or more paid time off as required by the law (whether in the form of paid vacation or personal days or paid days of rest) would not be required to provide additional paid personal time off, but only if the employer's paid time off can be used for the same purposes and under the same conditions as the time off required under the proposed amendment.
The amended law would not allow employers to require any documentation for an employee's use of personal time off.
Notice of Rights
The amended law would require an employer to provide its employees with a written notice of rights to personal time off at the commencement of employment or within 30 days of the effective date of the amendment for current employees.
Employers are not required to take any immediate action as this proposed law has not yet been voted on by the NYC Council. We will continue to monitor the status of this proposed amendment and provide prompt updates.