NYC Proposes Rules For Implementing Recent Amendments To The NYC Earned Safe And Sick Time Act

Key Takeaways

• NYC issues proposed rules to implement the recent New York City Earned Safe and Sick Time Act amendments, clarifying employer compliance obligations.
• Employers must adjust policies, pay statements, and recordkeeping to reflect new “protected time off” requirements, including unpaid leave and prenatal leave.
• Unlimited PTO policies do not exempt employers from ESSTA tracking, notice, and minimum leave mandates.

The New York City Department of Consumer and Worker Protection (DCWP), the agency responsible for enforcing the New York City Earned Safe and Sick Time Act (ESSTA), has released  proposed rules in advance of the February 22 effective date for recent amendments to ESSTA. The proposed rules will bring the DCWP's rules into alignment with the recent ESSTA amendments and provide guidance to employers on ESSTA compliance obligations.

ESSTA Amendments

As detailed in our  prior alert,among other things,the ESSTA amendments, which go into effect on February 22:

• Require New York City employers to provide employees with 32 hours of unpaid sick leave on an annual basis.
• Adopt the New York State paid prenatal leave obligations.
• Expand the reasons for which an employee may use paid safe and sick leave.
• Eliminate employer obligations to provide temporary schedule changes under the New York City Temporary Schedule Change Act.

Proposed DCWP Rules

With the effective date of the ESSTA amendments fast approaching, the DCWP has issued proposed rules for their implementation. Specifically, the proposed rules:

• Replace the term “safe/sick time” with “protected time off” (although employers can still use “safe/sick time” in their policies).
• Provide that employer policies must include details about the amount of unpaid protected time off provided to employees and explain that this unpaid time off is available immediately and on the first calendar day of every year.
• Explain that employee pay statements or other pay documentation must inform employees of the amount of protected time off used and accrued during each pay period, differentiate between paid and unpaid protected time off, and include an employee's total balance of paid and unpaid leave available for use.
• State that an employer may fulfill its obligation to provide 32 hours of unpaid protected time off by providing an equivalent amount of paid protected time off so long as this additional paid time off (PTO) is available immediately on an employee's first day of employment and on the first day of each calendar year thereafter.

As the proposed rules are open to public comment through March 2, they are not currently effective and may be modified before being approved.

Guidance for Employers with Unlimited Sick Leave Policies

Many employers that rely on unlimited PTO or unlimited sick leave programs have been asking how the ESSTA amendments (and now proposed rules) affect their existing policies and whether they need to make further changes. 

Although the proposed rules clarify that employers may fulfill their obligation to provide 32 hours of unpaid protected time off by providing an equivalent amount of paid protected time off, they also suggest that if an employer provides an equivalent (or greater) amount of paid protected time off, the employer is not exempt from ESSTA's strict leave‑tracking, pay stub and recordkeeping obligations, and employers must still make such paid protected time off available immediately upon hire and on Jan. 1 of each year.

Thus, even under an unlimited PTO policy, an employer must:

• Meet or exceed ESSTA minimums (e.g., 40 or 56 hours of paid ESSTA leave, depending on employer size, and 32 hours of front‑loaded unpaid ESSTA leave). Notably, the proposed rules do not  discuss whether an unlimited PTO policy can satisfy ESSTA's paid prenatal leave requirement. Unless and until the DCWP addresses this leave requirement, employers should still provide a separate paid prenatal leave bank to ensure compliance with the law.
• Track and display balances for protected time off. Because the proposed rules are silent on whether an employer is allowed to substitute an “unlimited” balance in place of showing the ESSTA‑mandated numbers, even if employees will never exhaust their PTO under an unlimited PTO policy, the city requires that the employee be notified of how much statutory ESSTA leave remains.
• Maintain protected time off records for three years.
• Maintain a written, ESSTA-compliant policy, even if using an unlimited PTO policy.

Employers should also be aware that use of unlimited PTO does not change ESSTA's:

• Limits on documentation requests to employees confirming leave is for an ESSTA-covered reason (only after more than three consecutive days out of work).
• Prohibition on requiring advance notice from employees for unforeseeable leave.

Recommended Next Steps for Employers

To prepare for the new ESSTA requirements on February 22 and likely implementation of the proposed rules, employers should:

• Update sick/safe leave and PTO policies to ensure they expressly incorporate the expanded qualifying reasons, front‑loading obligations and prenatal leave entitlements.
• Ensure that payroll and human resources (HR) information systems display separate leave banks and maintain three years of records.
• Ensure that all supervisors and HR personnel understand the new qualifying reasons, usage rights and anti‑retaliation protections in the ESSTA amendments.
• Conduct a compliance audit to ensure that current PTO and leave policies – especially unlimited PTO plans – explicitly satisfy ESSTA minimums.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.