Earlier this year, New York City amended the Earned Safe and Sick Time Act (the “ESSTA”) to provide eligible New York City employees with “safe time” leave and expand the definition of a “family member” under the law. As a result of the most recent amendments, the New York City Department of Consumer Affairs recently issued amended rules (the “Amended Rules”) and updated Frequently Asked Questions (“FAQs”) for the ESSTA. Significantly, the Amended Rules, which are currently in effect, impose new requirements on employer ESSTA leave policies.
Under the ESSTA, covered employers must provide their employees, who work more than 80 hours per year in New York City, with up to 40 hours of paid safe and sick leave each year. Employees either accrue one hour of paid safe and sick leave for every 30 hours worked or receive the full complement of paid safe and sick leave at the beginning of the year. Employees may use safe and sick leave for absences related to: (1) the employee’s or a family member’s mental or physical illness or injury; (2) the closure of the employee’s workplace, or the school or care facility of the employee’s child, because of a public health emergency; or (3) the employee’s or a family member’s being the victim of a family offense matter, sexual offense, stalking, or human trafficking. For example, employees may take “safe time” leave for a number of specifically enumerated instances that include, but are not limited to, obtaining services from a domestic violence shelter or rape crisis center, meeting with an attorney to prepare for any court proceeding, filing a complaint with law enforcement, or relocating to increase the safety of the employee or the employee’s family members. The updated FAQs provide theoretical examples of situations where safe time would or would not be appropriate.
New ESSTA Policy Requirements
Pursuant to the ESSTA, employers must maintain a written ESSTA policy. The Amended Rules include the following clarifications, amendments, and/or expansions upon the written policy requirement:
- Merely relying on the DCA’s Notice of Employee Rights, which must be given to new employees upon hire, is not sufficient to meet the written policy requirement.
- The ESSTA policy must be maintained “in a single writing.” While the Amended Rules do not further elaborate on what constitutes a “single writing,” employers who maintain separate leave policies should ensure that all policies are contained in one document. For example, employers with employees both inside and outside New York City who use a separate ESSTA addendum to their general leave policies should now include that ESSTA addendum in the employee handbook to ensure compliance with the “single writing” requirement.
- The policy must clearly set forth: (i) whether employees accrue safe and sick time throughout the year or are frontloaded the time at the beginning of the year; (ii) when the safe and sick time is accrued/frontloaded; and (iii) the rate of accrual and the maximum number of hours an employee may accrue in a year (if the time is not frontloaded).
- The policy must also include the following requirements/policies (if applicable):
- A notice requirement to use safe and sick time and the specific procedure for providing notice;
- Any required written documentation to support the use of safe and sick leave, which may only be requested after three consecutive days of absence;
- A reasonable minimum increment for using safe and sick leave;
- The disciplinary policy for the misuse of safe and sick time;
- The policy for carry-over of unused safe and sick time at the end of each year; and
- A description of the confidentiality requirements under the ESSTA, which provide that: (1) as a condition of providing safe and sick leave, an employer may not require the disclosure of details relating to an employee’s or a family member’s medical condition or require the disclosure of details relating to an employee’s or a family member’s status as a victim of family offenses, sexual offenses, stalking, or human trafficking and (2) health information about an employee or a family member, and information concerning an employee’s or a family member’s status or perceived status as a victim of family offenses, sexual offenses, stalking, or human trafficking, may only be obtained for purposes of using safe and sick leave. This information will be kept confidential and shall only be disclosed with the written permission of the affected employee or as required by law.
- If an employer uses a term besides safe and sick time to describe leave provided by the ESSTA, that employer must state that such leave may be used for any of the purposes set forth under the ESSTA without any condition prohibited by the ESSTA.
Further, it is no longer enough for employers to simply post the ESSTA policy. Employers must now distribute the policy when a new employee begins employment, if an employee requests a copy, and within 14 days before a change to the policy becomes effective. Any employer that must alter its ESSTA policy to comply with the above requirements must therefore distribute the new policy at least 14 days before the revised policy becomes effective.
As noted above, the recent amendments expand who is a “family member” under the ESSTA. Specifically, the ESSTA also now provides that a “family member” includes any individual whose close association with the employee is equivalent of a family relationship. The theoretical examples of family members within the updated FAQs also evidence the fact that the definition of “family member” will be broadly interpreted by the DCA. As a result, employers should also adopt this broad approach when providing safe and sick leave to their employees.
In sum, employers should carefully review their ESSTA and/or general leave policies to ensure compliance with the new and expanded requirements.
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.