On September 28, 2020, Mayor Bill de Blasio signed a bill into law significantly amending the New York City Earned Sick and Safe Time Act (“ESSTA”) in order to better align with New York State’s new paid sick leave law (the “NYS Leave Law”). Like its state law counterpart, the amendments to ESSTA (the “ESSTA Amendments”) takes effect on September 30, 2020. As discussed in greater detail below, the ESSTA Amendments: (i) revise the amount of leave that New York City employers are required to provide; (ii) impose new employer reporting requirements; (iii) create new employer reimbursement obligations in connection with requested medical documentation and/or documentation regarding domestic violence; (iv) expand the scope of prohibited retaliation under the law; (v) impose new notice requirements; and (vi) expand enforcement mechanisms.
New Leave Requirements
Most importantly, the ESSTA Amendments alter the amount of sick and safe leave that New York City employers must provide to their employees. Prior to the ESSTA Amendments, New York City employers with 5 or more employees who worked more than 80 hours in a calendar year were obligated to provide up to 40 hours of paid safe and sick leave, and employers with fewer than five employees were required to provide only unpaid safe and sick leave. However, the ESSTA Amendments change this obligation to match the requirements of the NYS Leave Law, as follows:
- New York City employers with 4 or fewer employees and a net income of less than $1 million in the prior tax year must provide each employee with up to 40 hours of unpaid sick and safe leave per year;
- New York City employers with 5-99 employees and employers with 4 or fewer employees and a net income of greater than $1 million in the prior tax year must provide each employee with up to 40 hours of paid sick and safe leave per year; and
- New York City employers with 100+ employees must provide up to 56 hours of paid sick and safe leave per year.
The ESSTA Amendments also eliminate the 120-day waiting period for new hires to utilize accrued leave, meaning that employees can access accrued leave immediately. While the ESSTA Amendments take effect on September 30, 2020, employers may restrict employees from using any additional paid sick leave provided under the revised law until January 1, 2021.
Updated Employer Reporting Requirements
Significantly, the ESSTA Amendments also change New York City employers’ reporting obligations with respect to leave provided under the law. Beginning on September 30, 2020, employers must include the following information on a pay statement or “other form of written documentation” for each pay period: (i) the amount of sick and safe leave accrued and used during the pay period; and (ii) the employee’s total balance of accrued safe and sick leave. Employers who fail to adhere to these requirements may be subject to a civil penalty of up to $50 for each employee who was not given appropriate notice.
Mandated Reimbursement for Sick and Safe Leave Documentation
ESSTA in its current form allows employers to request reasonable documentation supporting the need for both sick and safe leave if an employee uses more than three consecutive work days of leave. In the sick leave context, employers may request documentation signed by a licensed health care provider indicating the need for the amount of sick time taken. In the safe leave context, employers may request: (i) documentation signed by an employee, agent, or volunteer of a victim services organization, an attorney, a member of the clergy, or a medical or other professional service provider from whom the employee or that employee’s family member has sought assistance in addressing domestic violence, family offense matters, sex offenses, stalking, or human trafficking and their effects; (ii) a police or court record; or (iii) a notarized letter from the employee explaining the need for such time.
The ESSTA Amendments update these provisions of the law to require employers to reimburse employees for “all reasonable costs or expenses incurred for the purpose of obtaining such documentation for the employer.” This requirement appears to apply only in situations where the employee is actually required by the employer to obtain and submit such documentation to justify the need for leave, rather than instances where employees obtain and submit it voluntarily.
Scope of Prohibited Retaliation Expanded
The ESSTA Amendments also expand the scope of prohibited retaliation under the law. While interference with and retaliation in connection with an employee’s exercise of his or her rights under ESSTA has always been prohibited under the law, the ESSTA Amendments more directly prohibit taking any “adverse action” designed to penalize for or deter an employee from exercising such rights. The ESSTA Amendments define “adverse action” as actions “including, but not limited to, threats, intimidation, discipline, discharge, demotion, suspension, harassment, discrimination, reduction in hours or pay, informing another employer of an employee’s exercise of rights under [ESSTA], blacklisting, and maintenance or application of an absence control policy that counts protected leave for safe/sick time as an absence that may lead to or result in an adverse action.” Adverse actions also include “actions related to perceived immigration status or work authorization.” In addition, the ESSTA Amendments expressly protect “any person who mistakenly but in good faith asserts their rights or alleges a violation of [ESSTA].”
Notice Requirements
Employers are required to provide notice of the changes imposed by the ESSTA Amendments to current employees no later than October 30, 2020.
Expanded Enforcement Mechanisms
Finally, the ESSTA Amendments authorize the Corporation Counsel of the City of New York (the “Corporation Counsel”) to initiate a judicial proceeding to enforce any ESSTA compliance order issued by the New York City Department of Consumer and Worker Protection. The ESSTA Amendments further permit the Corporation Counsel to commence a civil action on behalf of the City against employers with an alleged pattern or practice of ESSTA violations and to conduct formal investigations in connection with such claims. Employers found to have engaged in a pattern or practice of violating ESSTA may be subject to civil penalties of up to $15,000, and may also be ordered to pay up to $500 to each employee covered by the employer’s official or unofficial policy or practice of refusing to allow the use of earned leave under the law.
We will continue to monitor the ESSTA Amendments and provide updates as they become available.