The New York City Earned Sick and Safe Time Act (“ESSTA”) was amended on September 28, 2020. This law now aligns the ESSTA with the earned sick leave law recently promulgated under New York State law.
The ESSTA amendments are effective as of September 30, 2020, and require employers to comply with the new requirements or face newly enacted penalties. More specifically, New York City employers must comply with the leave requirements charted below.
| New York City Employer Description | Corresponding ESSTA Leave Requirement |
| Employers with less than five employees and a net income of less than $1M in the prior tax year | Shall provide each employee with 40 hours of unpaid leave |
| Employers with less than five employees and a net income of greater than $1M in the prior tax year | Shall provide each employee with 40 hours of paid leave |
| Employers with 5 – 99 employees | Shall provide each employee with 40 hours of paid leave |
| Employers with 100 or more employees | Shall provide each employee with 56 hours of paid leave |
New employees may access the above-mentioned leave immediately with no waiting period. Employers required to provide paid ESSTA leave, however, possess an adjustment window and may delay the additional ESSTA leave from starting until January 1, 2021.
Under the amended ESSTA, employers must not only offer the revised leave, but must also document and report the usage of such time by employees. Employers must provide information on each employee’s pay statement or comparable written document evidencing the amount of ESSTA leave the employee accrued and used during each pay period, along with a report of the employee’s remaining ESSTA time. Thus, employers may wish to confer with the vendor used for processing payroll or, if processed in-house, ensure the additional information is being included on each employee’s pay statement.
Should an employer wish to seek from the employee documentation supporting the employee’s use of sick and safe leave – which the employer may request under certain delineated circumstances – the employer must reimburse the employee for all reasonable costs incurred in obtaining such documentation (e.g., any fee charged by the treating physician).
In addition to the expansion of the ESSTA leave provisions, the employee notice and workplace posting requirement, and the enforcement mechanisms also changed. Employers are required on or before October 30, 2020 to provide written notice to all current employees and new hires, as well as post the notice in the workplace, explaining the new rights provided by the ESSTA. In addition, employer retaliation under the ESSTA now includes any punishment or adverse action that impacts an employee or is reasonably likely to deter said employee from utilizing ESSTA leave. Any such violations may be subject to an administrative investigation or a civil action by the Corporation Counsel of the City of New York. Employers violating the ESSTA may be subject to civil penalties of up to $15,000 and may be further ordered to pay up to $500 to each covered employee.
New York City employers must take note of the ESSTA amendments, implement procedures to ensure compliance, and amend their sick/safe leave policies.
Our labor and employment attorneys can provide additional information and compliance assistance.
PartnerMichael Shadiack is the Chair of Connell Foley LLP’s Labor and Employment Practice Group. Representing a broad spectrum of employers and management personnel in the private and public sectors, he provides litigation defense and ...