By: Ty Hyderally, Esq., and Jennifer Vorih, Esq.

On October 15, 2023, new wage rules went into effect amending New York City’s Earned Safe and Sick Time Act (ESSTA). These rules were adopted by the New York City Department of Consumer and Worker Protection (DWCP) on September 15, 2023. These changes will come as a relief to employees in New York City who need to take time off to take care of themselves or family members OR to take safety measures, including getting legal assistance, due to stalking, human trafficking, or actual or threatened domestic violence or unwanted sexual contact.

How much Safe and Sick Time employees receive depends on the size of their employer:

• Up to 56 hours of paid leave each calendar year, if the employer has 100 or more employees.
• Up to 40 hours of paid leave each calendar year, if the employer has 5-99 employees.
• Up to 40 hours of paid leave each calendar year, if the employer has 1-4 employees AND has net income of $1 million or more.
• Up to 40 hours of unpaid leave each calendar year, if the employer has 1-4 employees and has net income of less than $1 million or more.
• Up to 56 hours of paid leave if the employer has 100 or more domestic workers.
• Up to 40 hours of paid leave if the employer has 1-99 domestic workers.

It is important to note that the employer’s responsibility to comply with the ESSTA does not change immediately if their headcount decreases. Rather, the employer would remain responsible for the higher level of hours until the next calendar year. However, if the employers’ headcount increases during the year, they are responsible for the higher number of hours and/or level of coverage from the date of the increase until the end of the year.

The new rules significantly expanded the availability of Safe and Sick leave by including all employees nationwide in the employers’ headcounts listed above. These numbers include both full- and part-time employees, as well as those jointly employed by more than one employer and those on leave, whether paid or unpaid.

Eligible employees accrue Safe and Sick leave (one hour for every thirty hours worked) when they begin working, and there is no waiting period to use the leave. Alternatively, employers can choose to provide employees with the full year of Safe and Sick Leave on January 1 of each year.

With the huge increase in remote work, the DWCP found it necessary to specify how the ESSTA applies to workers who perform work from outside of New York City. Employees who regularly perform work in New York City can accrue Safe and Sick leave, but only for those hours they work in New York City. Employees who do not regularly perform work in New York City cannot accrue Safe and Sick leave, even if they do occasionally work in the City.

The amendments contain a number of other rules and clarifications:

• Employers must inform employees of their accrual and use of Safe and Sick leave on their paystubs,
• Employers can require employees to provide reasonable notice of their need to use Safe and Sick leave,
• Employers can require written documentation regarding use of three or more consecutive days of Safe and Sick leave,
• Employers must pay employees at their regular rate of pay,
• If an employer sells its business, both the old and new employer are responsible for properly transferring employees’ accrued leave, and
• Employers are subject to penalties for noncompliance with the ESSTA.

The DWCP has not yet updated its FAQs on the ESSTA, but will provide information here: https://www.nyc.gov/site/dca/workers/workersrights/paid-sick-leave-law-for-workers.page. Now more than ever, employees need to be able to take time off to care for themselves or their family members, or to address situations of domestic violence, human trafficking, stalking, or unwanted sexual contact. It is gratifying to see that the DWCP has addressed these issues and expanded the availability of leave to employees in New York City.

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