New York City Issues FAQs on Earned Safe and Sick Time Act Amendments

Employers in New York City have been provided much needed guidance regarding recent amendments to the NYC Earned Safe and Sick Time Act ("ESSTA"), which include 32 hours of unpaid sick leave. (See prior advisories: here and here). Specifically, The New York City Department of Consumer and Worker Protection ("DCWP") has released an FAQ, which provides additional information on the law.

As described in our previous advisories, the amended Law will:

• Provide additional reasons for the use of ESSTA leave such as (1) closure of the workplace, school, or childcare center by order of a public official due to a public disaster; (2) where a public official directs people to remain indoors or avoid travel during a public disaster; (3) absences for employees acting as caregivers to provide care to a minor child or a care recipient; (4) absences for attending or preparing for legal proceedings related to subsistence benefits or housing; and (5) situations where an employee or their covered family member has been the victim of workplace violence.
• Require employers to provide employees with an additional 32 hours of unpaid sick/safe time upon hire and on the first day of each calendar year.
• Consolidate ESSTA coverage with an employee's rights under the NYC Temporary Schedule Change Act ("TSCA"). Since leave for "personal events" is now covered under ESSTA, the TSCA will be eliminated.
• Provide a statutory entitlement to paid prenatal leave as an element of ESSTA, which provides 20 hours of leave in addition to the paid sick and safe time to which an employee is already entitled.

The DCWP's FAQs provide guidance and clarity on a number of outstanding questions, particularly around use and accrual. Notably:

• When new employees begin work, the employer must give them 32 immediately available hours of unpaid protected time off followed by another bank on the first day of the calendar year, as determined by the employer. Employers cannot provide a prorated amount of immediately available hours when an employee is hired partway through a calendar year.
• Employers that provide more than the minimum amount of paid protected time off do not have to provide an additional bank of 32 immediately available hours of unpaid protected time off. Employers may fulfill the obligation to give employees 32 immediately available hours of unpaid protected time off by providing at least 32 additional hours of paid protected time off. However, at least 32 hours must be immediately available on employees' first day of employment and on the first day of each calendar year.
• When an employee has both paid and unpaid protected time off available for use, the employer should provide paid protected time off to cover absences, unless the employee specifies the preference to use unpaid protected time off instead.
• Employers must ensure that pay statements include both: (i) the amount of paid and unpaid protected time off used during the pay period; and (ii) the amount of immediately available hours of unpaid protected time off available for use in the Calendar Year.

The DCWP has also updated its website with a link to the Notice of Employee Rights, which employers must distribute to employees as well as posting in the workplace as soon as practicable. Employes should also include the notice in all new hire paperwork.

To the extent they have not done so already, New York City employers should be sure to:

• Review and update their leave policies to reflect the new requirements, particularly the separate bank of unpaid sick and safe time.
• Remove any policies related to the TSCA.
• Train managers on the new law so that they may be able to handle requests by employees for leave.

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Please feel free to contact a member of DWT's employment services group if you have any questions about how this may impact your company.